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WP019
Title
Property and the Philosophy of Right: Kant,
Fichte, Hegel
Author
Prof. Chris Pierson
Email:
[email protected]
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Property and the Philosophy of Right: Kant, Fichte, Hegel
Professor Chris Pierson
the first and original property .. consists in an exclusive right to a determinate free activity
Fichte
In this chapter, I consider the account of property offered by one of the most important (and latest)
of all Enlightenment thinkers (and the author of the essay ‗What is Enlightenment?‘), Immanuel
Kant and the response of two of his most influential German critics, Johann Gottleib Fichte and
Georg Wilhelm Friedrich Hegel (Kant, 1983a[1784]). Consideration of these last two will carry us
some way ‗beyond‘ the Enlightenment and towards the kinds of arguments that were to characterize
debates of the nineteenth century. Although hailed by some as the founder of all modern
philosophy, Kant has not always been seen as an especially important political philosopher; (see
Howard, 1977; Scruton, 2001). Such attention as has been directed towards his political work has
tended to focus upon a number of remarkable but still ‗occasional‘ essays, including the ‗Idea for a
Universal History with a Cosmopolitan Intent‘ (Kant 1983b[1784]), ‗On the Proverb: that may be
true in theory but is of no practical use‘ (Kant 1983c[1793]) and, perhaps above all, ‗To Perpetual
Peace: A Philosophical Sketch‘ (Kant 1983d[1795]). Given this focus, Kant has often been seen as
most important for what he has to say about the character of republicanism, cosmopolitanism and
especially about lawful international relations. This comparative neglect was exacerbated by the
long-held suspicion that the most explicitly political of Kant‘s systematic texts, the Metaphysics of
Morals, first published in two separate parts in 1797, fully twelve years after the much better-known
Groundwork of the Metaphysics of Morals (Kant, 1998[1785]) betrayed signs of the great thinker‘s
declining powers, perhaps even of the onset of senility (see Flikchuh, 2000, 8). Certainly it was not
to be considered as in any way the equal of the three great critical works published between 1781
and 1790. A comprehensive critical edition of the Metaphysics of Morals in English was not available
for nearly two hundred years (Kant, 1999[1781]; 1996a[1788]; 2001[1790]; 1991[1797]).
In the English-speaking world, the last fifty years have seen a slowly-accelerating revival of interest
in Kant as a political thinker, building on the pioneering work of Herbert Paton (1971[1948]) and
Lewis White Beck (1960). This trend was undoubtedly encouraged by the fact that two of the most
influential political philosophers of the late twentieth century, John Rawls (see 2005[1971]) and
Jurgen Habermas (see especially, 1972), both owed a substantial debt to Kant (though both men
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were perhaps more influenced by Kant‘s general moral philosophy than by that which was
specifically political). They were not (quite) alone in showing this interest in Kant‘s political
philosophy. Hannah Arendt (1992), for example, lectured on Kant‘s politics in Chicago and at the
New School in the 1960s and 1970s. In 1984, Michel Foucault (1984) wrote his own reflective essay
‗What is Enlightenment‘ on the two hundredth anniversary of the appearance of Kant‘s original.
An English translation of the first part of the Metaphysics of Morals, (the Doctrine of Right or Rechtslehre),
the most crucial text in terms of Kant‘s treatment of property, had existed since the 1880s (Kant,
1887[1785, 1797]). A landmark was established in 1963/4 by the publication of an English
translation of the second part of the work (the ‗Doctrine of Virtue‘) and an accompanying
commentary on the whole work by Mary Gregor (1963; see also Gregor, 1988). This was followed
in 1965 by a new translation of the Doctrine of Right by John Ladd (Kant, 1965)
A critical
commentary emerged through the 1970s and 1980s in the work of Patrick Riley (1973, 1983),
Howard Williams (1977, 1983), Leslie Mulholland (1990) and others. By 2000, Katrin Flikchuh was
able to report that the Doctrine of Right, once subject to ‗virtually complete neglect‘, had experienced
‗an astounding revival of interest‘ in the preceding twenty years (Flikchuh, 2000, 8). Since an
argument for private property lies at the very heart of the Doctrine of Right, since, indeed, it is what
obliges us to create a state and to live ‗in a rightful condition‘, it is upon this text that I focus in the
following account. After more than two centuries, the wider corpus of Kant‘s critical philosophy
and its foundational claims continue to be deeply contested. I make no attempt to address, let
alone to resolve, these issues here. I attend to this wider context in Kant‘s work only in so much as
it is essential to address his account of property (though, at the same time, I recognise that how this
wider context is understood may have a very material effect upon how adequate we find Kant‘s
treatment of property to be, perhaps even to what precisely we take it to be).
Understanding Kant is not easy. But even battle-scarred Kant specialists recognise that the
Metaphysics of Morals and, more especially the Doctrine of Right, is especially difficult and problematic.
Kant‘s prose is extraordinarily terse. There are passages which appear to be out of sequence or out
of place all together. Others are repetitious. It is perhaps this which allowed the story of the
master‘s declining powers to hold sway for so long. In addition, it seems that Kant may not have
been well served by his publishers and that some passages became misplaced in the production
process. (In line with much recent scholarship, in what follows I adopt Bernd Ludwig‘s proposed reordering of the text where this seems to make better sense; see Ludwig, 1986; Ludwig, 1990; Gregor,
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1996, xxxii-xxxiv; Flikchuh, 2000, 8-9). Notwithstanding all these difficulties, the broad lines of
Kant‘s account of property are clear enough.
The Metaphysics of Morals
However it is understood, and it is understood very varyingly perhaps even by Kant himself, at the
core of Kant‘s metaphysics of morals lies the idea of the categorical imperative, the ‗supreme
principle of morality‘. In the Groundwork, the categorical imperative appears in three (‗equivalent‘)
formulations. The first is this: ‗I am never to act otherwise than so that I could also will that my
maxim should become a universal law‘; the second, ‗act so that you treat humanity, whether in your
own person or in that of any other as an end and never as a means only‘; the third formulation is
this: ‗all maxims that proceed from our own making of law ought to harmonize with a possible
kingdom of ends as a kingdom of nature‘. The Metaphysics of Morals is intended to show how the
‗supreme principle‘ outlined in the Groundwork should yield a world of moral choices which are
‗right‘. It is not a complete system of moral duties and rights. Kant is clear that that there are many
different maxims that may satisfy the test posed by the categorical imperative but, just as clearly, that
there are some which definitively fail this test, so that we can know that there are things that we
must and must not do. It is of the essence of a metaphysics of morals that it is ‗a system of a priori
cognition from concepts alone‘: it yields ‗a practical philosophy, which has not nature but freedom
of choice for its object‘ (Kant, 1996b[1797], 10[216]). 1 It is not to be confused with a ‗moral
anthropology‘ which would deal with the subjective conditions under which real men might seek
(and fail) to satisfy the moral law or indeed with the pursuit of happiness which is, in Kant‘s view,
empirical and indeterminate: ‗nothing moral .. can be learned merely from experience‘ (Kant,
1996b[1797], 9[215]). But it may (indeed, it should) ‗guide‘ the moral conduct of beings like us who
are a mixture of the rational and the sensual.
The treatment in the Metaphysics of Morals is divided into two: metaphysical first principles of the
doctrine of right (itself divided further into ‗private right‘ and public right‘) and metaphysical first
principles of the doctrine of virtue. The latter is concerned with ethics in which the incentive to act on
a duty is internal to that duty itself. The former defines that range of choices in which the incentive
1
Initial page references are to the 1996 Cambridge edition of The Metaphysics of Morals (edited and translated by Mary
Gergor); the references in square parentheses are to Volume 6 of the Berlin Academy edition of Kant‘s works.
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to perform a duty is external to the duty itself. Virtue is the realm of morality; right defines the
domain of legality. What Kant has to say about property is largely confined to the doctrine of right
– but it proves to be quite central to this category and to the obligation which he finds we are under,
and which we may impose upon others, to move from the realm of private right (a ‗state of nature‘)
into a ‗rightful condition‘ (that is, to civil society or the state).
The entire moral order is driven forward by Kant‘s commitment to ‗the concept of freedom [as] a
pure rational concept‘ (Kant, 1996b[1797], 14[221]). According to Kant, for humanity ‗there is only
one innate right‘ and that is freedom, understood not as ‗a wild, lawless freedom‘ but rather as
‗independence from being constrained by another‘s choice‘; the freedom to live under laws that one
recognizes as one‘s own but which are nonetheless required by practical reason (Kant, 1996b[1797],
93[316]; (30)[237]).
Freedom is ‗the only original right belonging to every man by virtue of his
humanity‘ (Kant, 1996b[1797], 30[237]). As ‗a pure rational concept‘, freedom gives us
‗unconditional practical laws, which are called moral‘ and these moral laws are ‗imperatives (commands
or prohibitions) and indeed categorical (unconditional) imperatives‘ (Kant, 1996b[1797], 14[221]). It
is these laws that the Metaphysics of Morals in both its parts sets out to establish. The ‗Doctrine of
Right‘ itself is ‗the sum of those laws for which an external lawgiving is possible‘ (and ‗Right‘ in this
context is ‗the sum of the conditions under which the choice of one can be united with the choice of
another in accordance with a universal law of freedom‘ (Kant, 1996b[1797], 23[229]; (24)[230]; emphasis
added). From this follows the ‗Universal Principle of Right’:
Any action is right if it can coexist with everyone‘s freedom in accordance with a universal
law, or if on its maxim the freedom of choice of each can coexist with everyone‘s freedom in
accordance with a universal law.
(Kant, 1996b[1797], 24[230])
From this follows in turn ‗the universal law of Right’: ‗so act externally that the free use of your choice
can coexist with the freedom of everyone in accordance with a universal law‘ (Kant, 1996b[1797],
24[231]). For Kant, it is important that a right already contains within it ‗an authorization to use
coercion‘ to enforce it. It follows that ‗if a certain use of freedom is itself a hindrance to freedom in
accordance with universal laws (i.e. wrong), coercion that is opposed to this (as hindering of a hindrance
to freedom) is consistent with freedom in accordance with universal laws, that is, it is right‘ (Kant,
1996b[1797], 25[221]).
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At the opening of his discussion of the ‗Division of the Doctrine of Right‘, Kant offers further
distinctions between natural right (which rests only on a priori principles) and positive right (which
proceeds from the will of a legislator) and between innate right (which belongs to everyone by
nature) and acquired right (which requires an appropriate act to establish it). Natural right or right in
a state of nature is private right. Civil right or right in civil society (under public laws) is public right.
Kant treats first of private right which turns out to be principally about rightful external possession.
This discussion is further divided between ‗how to have something external as one‘s own‘ (Chapter
1) and ‗how to acquire something external‘ (Chapter 2).
Kant assumes (analytically at least) that we
can resolve the first issue before we move on to the second. Kant further identifies three types of
external object over which I might have a right giving rise to either 1) a property right, 2) a
contractual right or 3) ‗a right to a person akin to a right to a thing‘. I confine my attention to
Kant‘s treatment of property rights. (Kant, 1996b[1797], 6[210])
How to Have Something External as One’s Own
‗That is rightfully mine (meum iuris) with which I am so connected that another‘s use of it without my
consent would wrong me‘ (Kant, 1996b[1797], 37[245]). Someone who seeks to take something that
is in my physical or empirical possession (the apple in my hand, for example) does me a wrong
because he attacks what is internally mine (my freedom) directly. It is an attack upon my person.
What really matters for Kant is not this empirical possession (possessio phaenomenon) but rather the
category of that which is mine and which it would be wrong to disturb ‗even though I am not in
possession of it‘, which he calls intelligible possession (possessio noumenon) (Kant, 1996b[1797], 39[249];
37[246]). This sets up for Kant the really crucial question(s):
How is it possible for something external to be mine or yours? .. how is merely rightful (intelligible)
possession possible? .. how is a synthetic a priori proposition about right possible?
(Kant, 1996b[1797], 39[249])
The answer is given by Kant‘s ‗Postulate of Practical Reason with Regard to Rights’: ‗It is possible for me to
have any external object of my choice as mine‘ (Kant, 1996b[1797], 40[246]). The reason for this
(which Kant sets up negatively) is that any maxim which denied this right would be inconsistent with
the Universal Principle of Right: for ‗a maxim by which, if it were to become a law, an object of
choice would in itself (objectively) have to belong to no one (res nullius) is contrary to rights‘ (Kant,
1996b[1797], 40-1[246]). But it is possible (so Kant supposes) for me to have a rightful power to
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make use of an external object of my choice consistent with the freedom of everyone (else) to do the
same in accordance with a universal law: ‗it is therefore an a priori presupposition of practical reason
to regard and treat any object of my choice as something that could objectively be mine or yours‘
(Kant, 1996b[1797], 41[246]). This, in turn, gives rise to the following: ―it is a duty of right to act
toward others so that what is external (usable) could also become someone‘s‖.
All of this applies
to noumenal rather than to empirical possession and so it is not holding an object but ‗having, in which
abstraction is made from all spatial and temporal conditions‘ that counts. To possess in this sense is
to bring an object ‗under my control’. An object is mine ‗because my will to use it as I please does not
conflict with the law of outer freedom‘ (Kant, 1996b[1797], 42-3[252-3]). So:
When I declare (by word or deed), I will that something external is to be mine, I thereby
declare that everyone else is under obligation to refrain from using that object of my choice,
an obligation no one would have were it not for this act of mine to establish a right.
(Kant, 1996b[1797], 44[255])
At first sight, it is hard to see how my unilateral declaration of a will to own something could place
all others under an obligation to refrain from interfering with what is now ‗my‘ property. Kant does
address this question in the concluding paragraph of his outline of the ‗postulate of practical reason
with regard to rights‘:
This postulate can be called a permissive law (lex permissiva) of practical reason, which gives
us an authorization that could not be got from mere concepts of right as such, namely to put
all others under an obligation, which they would not otherwise have, to refrain from using
certain objects of our choice because we have been the first to take them into our
possession. Reason wills that this hold as a principle, and it does this as practical reason,
which extends itself a priori by this postulate of reason. (Kant, 1996b[1797], 41[247])
This still does not make it very clear why we should come under an obligation in the face of the
unilateral choice of another to possess (since ‗a unilateral will cannot put others under an obligation
they would not otherwise have‘; Kant, 1996b[1797], 52[264]). But Kant does provide two further
qualifications which may provide some guidance. First, if we are to place others under an
obligation this must be upon the basis that we recognize ourselves to be under a reciprocal
stipulation with regard to the (rightful) property of others; thus in making my own claim ‗I in turn
am under obligation to every other to refrain from using what is externally his‘ (Kant, 1996b[1797],
44[255]). Secondly, possession (and thus exclusion) under a system of private right (that is within
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the state of nature) is only ‗provisionally rightful’. Outside of the civil condition, those who resist
individual claims to property express a will that is merely unilateral ‗and hence has as little lawful force in
denying him possession as he has in asserting it‘ (Kant, 1996b[1797], 45[257]). Still, Kant wants to argue
that under these circumstances the advantage lies with the property claimant as his will ‗has the
advantage of being compatible with the introduction and establishment of a civil condition‘.
He is
‗provisionally justified‘ in resisting attempts to interfere with what he has declared to be his property
(Kant, 1996b[1797], 45-6[257]).
Indeed, since the postulate of practical reason with regard to rights places us under an obligation to
create the circumstances under which ‗something can be mine or yours‘ and since this cannot be
secured under a regime of purely private right, we are all under a further obligation to enter the civil
condition where alone it is possible to be assured that the postulate can be secure. Here Kant quotes
the Roman lawyer Ulpian: ‗(If you cannot help associating with others) enter into a society with them
in which each can keep what is his (suum cuique tribue); (Kant, 1996b[1797], 29[237]). Thus securing
‗a civil constitution [is] necessary as a duty‘ (Kant, 1996b[1797], 51[264]). For Kant, it is only
possible to have something external as one‘s own in a way that is ‗conclusive‘ (rather than
‗provisional‘) under public right, in a ‗rightful condition‘, that is within a state. We cannot force
others to respect our property claims in the state of nature (because ours is a unilateral will, albeit
one that tends towards meeting a universally-obliging command of reason) but we can oblige others
who dispute our title to join us in entering into a civil condition (where the dispute can be resolved):
If it must be possible, in terms of rights, to have an external object as one‘s own, the subject
must also be permitted to constrain everyone else with whom he comes into conflict about
whether an external object is his or another‘s to enter along with him into a civil
constitution.
(Kant, 1996b[1797], 45[256])
Entry into the civil condition is also essential to securing that state of assurance (the guarantee of
mutual respect for individual property claims) without which secure possession is impossible:
I am therefore not under obligation to leave external objects belonging to others untouched
unless everyone else provides me assurance that he will behave in accordance with the same
principle with regard to what is mine .. only a collective general (common) and powerful will ..
can provide everyone this assurance [and thus] only in a civil condition can something external be
mine or yours.
(Kant, 1996b[1797], 44-5[255-6]; emphasis added)
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How to Acquire Something External
It might seem that Kant has already provided an account of how one may come to acquire
something external: that is by willing that it be mine in the context of respecting the same right to
will to be mine of all those others with whom I should enter into a civil condition. But in fact, he
goes on to give an extended consideration of how external property is acquired.
He begins from the premise that while ‗nothing external is originally mine‘, it can be ‗acquired
originally‘ (that is, ‗without being derived from what is another‘s‘):
The principle of external acquisition is as follows: that is mine which I bring under my
control (in accordance with the law of outer freedom); which, as an object of choice, is
something that I have the capacity to use (in accordance with the postulate of practical
reason); and which, finally, I will to be mine (in conformity with the idea of a possible united
will).
(Kant, 1996b[1797], 47[258])
The process through which original acquisition takes place is this. First, I place myself in empirical
possession (possessio phaenomenon) of an object ‗that belongs to no one‘. I then give a sign of my
intention to appropriate it. I then appropriate it, ‗as the act of a general will (in idea) giving an
external law through which everyone is bound to agree with my choice‘ (Kant, 1996b[1797], 47[2589]).
Two problems present themselves immediately. First, there is really nothing ‗that belongs to no one‘
for Kant also argues that ‗all men are originally in common possession of the land of the entire earth‘ and
‗a right to a thing is a right to the private use of a thing of which I am in (original or instituted)
possession in common with all others’ (Kant, 1996b[1797], 54[267]; 49[261], my emphasis; ‗This original
community of land, and with it of things upon it (communio fundi originaria) is an idea that has
objective (rightfully practical) reality‘; Kant, 1996b[1797], 40n.[251]). Indeed, he insists that ‗a right
to a thing is only the right someone has against a person who is in possession of it in common with all
others (in the civil condition)‘ (Kant, 1996b[1797], 50[261];my emphasis). The second issue is that
‗original acquisition can proceed only from a unilateral will‘ and yet ‗by my unilateral choice I cannot
bind another to refrain from using a thing‘ (Kant, 1996b[1797], 49[261]). These problems are
exacerbated by Kant‘s further insistence that the key mechanism for original acquisition is first
possession which certainly looks like a form of empirical possession. ‗Taking first possession had
therefore a rightful basis (titulus possesionis), which is original possession in common‘:
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And the saying ―Happy are those who are in possession‖ (beati possidentes) .. is a basic
principle of natural right, which lays down taking first possession as a rightful basis for
acquisition on which every first possessor can rely.
(Kant, 1996b[1797], 41n.[251])
Further debate is seemingly foreclosed by the following:
No insight can be had into the possibility of acquiring in this way, nor can it be
demonstrated by reasons; its possibility is instead an immediate consequence of the postulate
of practical reason.
(Kant, 1996b[1797], 51[263])
In fact, Kant does provide a further gloss. Originally the world was held in common and each had
‗by nature‘ the will to use it. In order for the opposing wills not to extinguish each other, it was
necessary to find some way to determine ‗a particular possession for each on the common land‘.
The law which is to determine ‗what land is mine or yours .. in accordance with the axiom of outer
freedom‘ can only be established by public right in a civil condition. But before we reach that civil
condition, ‗it is a duty to proceed in accordance with the principle of external acquisition‘ and ‗a
rightful capacity of the will to bind everyone to recognize the act of taking possession and of
appropriation as valid, even though it is only unilateral‘ (my emphasis) And, in the face of those who
resist the transition to a civil condition, lex permissiva ‗carries with it all the effects of acquisition in
conformity with right, since leaving the state of nature is based upon duty‘ (Kant, 1996b[1797],
54[267]).
In the face of those who resist their ‗duty‘ to enter into a civil condition with us, we are
entitled to uphold (where necessary with force, including pre-emptive force) our title to private
property (Kant, 1996b[1797], 122[307-8]). To this extent, ‗provisional acquisition is true acquisition‘
(Kant, 1996b[1797], 52[264]).
Famously, Kant‘s account of property has none of the provisos that are associated with other
contract theorists; the necessity of labour or, indeed, of making any active use of one‘s land;
considerations of scarcity, ‗as much and a good‘ and so on. (While he is dismissive of the claim that
land can become ours through (being first in) labouring upon it, he does assert as a part of the
‗Right of Nations‘ that ‗anyone has an incontestable property in anything the substance of which he
has himself made‘; Kant, 1996b[1797], 115[345]). Indeed, the combination of first acquisition with
title through an expression of the will seems to open up the possibility of a ‗first-comer‘s charter‘.
Are there limits to what a first acquirer can claim? It seems that Kant‘s answer is ‗as far as the
capacity for controlling it extends, that is, as far as whoever wants to appropriate it can defend it‘.
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So, for example, ownership of the shoreline extends as ‗as far as a cannon shot can reach‘ (Kant,
1996b[1797], 52[265]). The other limitation is, of course, the proviso about mutual assurance. The
condition of my own unilateral claim is that I recognize the legitimacy of the unilateral claims of all
others; (Kant, 1996b[1797], 44[255-6]). Kant maintains that this reciprocity exists in private right
but we must be very uncertain that it can be consistently upheld outside a civil condition with its
enforceable body of laws and its capacity for the adjudication of disputes. This represents a further
incentive (and duty) to bring ourselves into a civil condition.
Commentary
Ever since Hegel, Kant‘s critics have claimed that a major weakness of his moral philosophy is that
it is purely formal. It provides general rules of right and wrong but little substantive guidance about
what we ought to do. The problem with Kant‘s account of property as we find it in the Doctrine of
Right is almost the opposite of this. Kant offers plenty of guidance as to what a private property
regime should look like. The problem is that this guidance is largely unconvincing. Let us allow
Kant‘s metaphysical approach to stand (for now) and let us allow that there is a categorical
imperative (and that it really is categorical and not just hypothetical) – all of which claims have, of
course, been very widely contested. Once we have made all these concessions, it is still clear (I
think) that Kant‘s argument (on its own terms, as it were) fails.
We can begin with the ‗postulate of practical reason with regard to rights‘ on which the entire
apparatus of Kant‘s views on property can be said to rest. The substantive conclusion – that ‗it is
possible for me to have any external object of my choice as mine‘ – rests on the failure of that
imagined ‗maxim by which, if it were to become a law, an object of choice would in itself (objectively)
have to belong to no one (res nullius)‘. It follows (eventually) that it is ‗an a priori presupposition of
practical reason to regard and treat any object of my choice as something which could objectively be
mine or yours‘ (Kant, 1996b[1797], 40-1[246]). If this means no more than that there must be
legitimate ways in which we can use things in the world (otherwise we would perish surrounded by
the means of our subsistence) and that others may not snatch them from us while our back is
turned, this is unobjectionable but unremarkable and a standard claim in much modern natural law
(in Grotius among others). But at most, as Kenneth Westphal argues (1997; 2002, 98-104), what
Kant establishes here is a right of use and not the full panoply of powers we associate with property
as dominium (which label Kant attaches to his account of possession only once; Kant, 1996b[1797],
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90[312]). Indeed, there are a range of possible property regimes which might satisfy Kant‘s
rejection of that maxim which makes everything res nullius – and these might be much less
individualistic and exclusionary (and more provisional) than the one which Kant (somewhat
dogmatically) chooses to present; (this is, indeed, more or less what we find in Fichte‘s Foundations of
Natural Right (Fichte, 2000[1796/7]). Even given this, Kant is still required to add his appeal to the
postulate of the ‗permissive principle (lex permissiva)‘ to get past the problem that my exercise of an
exclusionary choice looks like a unilateral act which, according to Kant himself, can never place
another under an obligation. We know that this posed a severe challenge to all the contract
theorists we have already considered but Kant‘s insistence that ‗Reason wills that this [the lex
permissiva] hold as a principle‘ hardly counts as a compelling solution.
One of the issues here is the state of the world before the first claims to private property are made.
Here Kant is unclear. He rejects the Grotian position that the world was originally held in common
in a way that requires there to have been an agreement to make it available for private ownership.
For this to have been the state of the world before the rise of private ownership, Kant argues, there
would have had to have been a prior contract that brought the world into common ownership – and
so the problem is simply pushed back further in time (to the prior contract that created that common
ownership). And yet, Kant does insist upon an ‗original community of land‘ or ‗an innate possession in
common of the surface of the earth‘ which is required for subsequent private title to be legitimate. And
this, because Kant insists that private ownership is not a relationship we have to the land that we
own but rather to those other persons with whom we share the planet: ‗what is called a right to a
thing is only that right someone has against a person who is in possession of it in common with all
others (in the civil condition)‘ (Kant, 1996b[1797], 50[261]). So, for it to be possible for (binding)
claims to private possession to arise, the earth must previously have been held in common (to this
extent). Otherwise we could never oblige others to accept our exclusive use of whatever it is we
have brought into private ownership. This original community of land is, so Kant avers, ‗an idea
that has objective (rightfully practical) reality‘ (Kant, 1996b[1797], 40n[251]). But then the issue is,
why should everyone else accept my claim to exclude them from what was previously held in
common?
Here a great deal of weight rests upon the claim of first possession. ‗Taking first possession has .. a
rightful basis (titulus possessionis), which is original possession in common‘ and ‗to interfere with the
use of a piece of land by the first occupant of it is wrong to him‘: ‗natural right .. lays down taking
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first possession as a rightful basis for acquisition on which every first possessor can rely‘ (Kant,
1996b[1797], 41n.[251]). But why? - and why especially given that Kant is so insistent that noumenal
possession (the basis of all claims to possession ‗without detention‘) abstracts from time and space?
(Indeed, this is just one example of a quite problematical relationship between empirical and
noumenal possession. There are several points at which some sort of empirical action in time and
space - making a public claim to a particular tract of land, for example - is essential in generating a
legitimate claim to noumenal possession). Being the first occupier looks to be irretrievably (and
inadmissibly?) like an empirical fact and one which, as Kant recognizes in his later discussion, is so
uncertain that we cannot make it the basis of a legitimate claim (against a longstanding but not
original possessor, for example) under any imaginable system of statutory property law (Kant,
1996b[1797], 73-4[292-3]). Of course, first possession is important in the sense that it defines
something which is not previously (privately) owned (though it is of course ‗owned in common‘,
otherwise no lawful and binding private ownership could arise) – but this could only ever be a
criterion which was necessary but not sufficient to establish its rightness. That is, its being
previously ‗unowned‘ (in the limited but relevant sense), does not in itself justify a claim to privatise it.
Kant does suggest that, where all the other necessary criteria are met, we are all bound by the will of
the first person who makes a private property claim (‗insofar as this conforms with the axiom of
outer freedom‘); (Kant, 1996b[1797], 54[267]). And this is very clearly the longstanding convention
of the Roman Law (within whose categories Kant generally operates). Beyond this, we have to rely
upon Kant‘s assurance that ‗there is, however, no way of proving of itself the possibility of
nonphysical possession or of having any insight into it .. its possibility is instead an immediate
consequence of the postulate [of practical reason with regard to rights]‘ (Kant, 1996b[1797],
42[252]). But we have already seen that there is good reason to doubt that Kant is right to suppose
that what he claims necessarily follows from this postulate (even were we to accept that his postulate
is ‗true‘).2
A further set of problems, which Kant himself recognizes, surrounds the transition from the world
of solely private right (the state of nature) to the civil or ‗rightful‘ condition, public right and the
state. Of course, Kant is insistent that his state of nature is not historical, enabling him to avoid
many of the problems that beset earlier contract theorists who needed to specify how we left the
2
Consider this further example of what ‗pure reason‘ requires according to Kant: ‗if a man and a woman want to enjoy
each other‘s sexual attributes they must necessarily marry, and this is necessary in accordance with pure reason’s principles of right‘;
(Kant, 1996b[1797], 62[278]; last emphasis added). Kant was as much a man of his times as we are of ours.
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state of nature in ‗real‘ time and space. This does not, of course, prevent him from identifying
historical events which take place in the state of nature prior to the rise of public right and making
that historical sequence significant. We have already seen (repeatedly) that one of the key challenges
Kant faces is to show why the unilateral claims of individuals in the state of nature should place a
binding obligation upon other persons. He deploys various devices: provisional property, the
injunctions of the lex permissiva, the ‗fact‘ that all are under a moral obligation to enter into civil
society (in which provisional property will be made conclusive). But the relationship remains
problematic. (Indeed, even if the question of who owns what within a given state seems to be
‗solved through the original contract, such acquisition will always remain only provisional unless this
contract extends to the entire human race‘; Kant, 1996b[1797], 53[266]; on this, see Ellis, 2006, 549).
And, as Penner (2010) asks, what is it that is added in the transition from private to public right that
is morally significant?
Kant seems to present the coming of the state in terms of making real the
mutual assurance that others will respect my property and I respect theirs - that is, an argument from
prudence or utility but hardly from morality. Above all, it is not clear why those contracting their
way into a civil society and creating ‗public right‘ may not agree to some property order (consistent
with the ‗postulate regarding right‘) which does something other than just endorse the claims of the
‗lucky‘ first occupiers (and presumably their heirs) from the state of nature. (Again, it can be argued
that this is precisely the sort of move made by Fichte). If what is crucial about the transition to the
civil condition is that we now have a truly omnilateral will, why must this will endorse the acts of
unilateral will in the state of nature according to which some individuals appropriated from what was
previously common? It may choose to endorse the existing property order, but, given that the
appropriations under the state of nature were expropriations from the common, it may surely just as
legitimately choose not to do so. And, if freedom is the only real value (as Kant supposes), those
who fared so badly in the state of nature that they were excluded from all possession (because they
were never first anywhere), surely have a moral duty not to endorse a property regime in which they
cannot be independent persons.
It may be something of this kind that Paul Guyer has in mind in the very Rawlsian Kant he presents
to us in his account of the ‗Kantian Foundations for Liberalism‘ (Guyer, 2000). In reconstructing
Kant‘s argument from the Doctrine of Right, Guyer emphasizes not the right of first possession
(indeed, he ignores this) but rather the idea that the property regime created in the transition to the
civil condition (towards which it is our duty to move) has to be one to which all participants could
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give their rational assent and he argues that they could only do this on the basis that it secures their
‗one innate right‘, that is, their freedom. Those who had provisionally acquired (that is, expropriated)
little or nothing in the state of nature could not (rationally) sign up to a public property regime
which instantiated their powerlessness i.e. one that made them dependent, that is not free.
According to Guyer (2000, 254):
Kant‘s analysis of property .. leads to the conclusion that an opportunity to maintain one‘s
own existence at least equivalent to that which would have been enjoyed in an original
common possession of the earth is a necessary condition of the rationality of free agreement
to any system of property and thus a necessary condition of the rightfulness of property
itself. It is the only condition under which a rational agent can freely agree to the existence
of private property rather than the undivided possession of the entire surface of the earth.
A broadly similar conclusion might be drawn from Kant‘s somewhat problematic treatment of the
duty of the state to provide support for the poor (and its consequent right to tax the rich to fund
this). At the point at which he introduces this public duty (1996b[1797];101[326]), Kant offers no
further explanation of its basis.
We know that Kant has stipulatively ruled out happiness or welfare
as a basis for the generation of rights and duties, so we should not expect this to form the grounds
of his account. In his extended gloss on this passage, Ernest Weinrib (2002/3) suggests that Kant is
driven to institute this duty because without it there is no good reason for the poor (or the
propertyless more generally) to sign up to the civil condition on the basis of the sort of property
regime that Kant envisages. If all the world is already claimed, those who lack property cannot be
party to an agreement that would necessarily and definitively render them dependent i.e. unfree. So
the existence of a duty to support the poor is the necessary precondition for establishing a
state that guarantees property in a manner consistent with each person‘s innate right .. the
operation of this duty re-established the non-dependence that marked innate right and was
threatened by the introduction of private property
(Weinrib,2002/3, 818/9)
Whether this represents a ‗good deal‘ for the poor is debatable (see, Penner, 2010). Is this
stipulation met by provision that keeps the poor from actually starving or does it require something
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closer to a ‗maximin‘ property regime of the kind seemingly envisaged by Guyer (2000)? 3
However
this is (or, indeed, is not) resolved, the problem seems to point to a broader difficulty in the way in
which Kant seeks to defend private property and especially as the basis for a rational agreement to
enter the civil condition.
Indeed, it may point the way towards other potential elements of a more ‗radical‘ reading of the
Doctrine of Right. So, for example, once I enter into a system of public right my property right
becomes conclusive but only with respect to those with whom I have now come together to form a state. In
relation to the rest of humanity, we are still under the stipulations of natural right and provisional right
(see above, pp. 000). Although the full scope of Kant‘s thinking on international relations is beyond
my remit here, it is clear that he believes that we have a duty to seek to enter a rightful condition
(whatever this may look like) at the inter-state and indeed at the global level.
Since the earths‘ surface is not unlimited but closed, the concepts of the right of a state and
of a right of nations lead inevitably to the idea of a right for all nations (ius gentium) or
cosmopolitan right (ius cosmopoliticum). So if the principle of outer freedom limited by law is
lacking in any one of these three possible forms of rightful condition, the framework of all the
others is unavoidably undermined and must finally collapse.
(Kant, 1996b[1797], 89[311]; emphasis added).
This may suggest that whatever conditions have to be satisfied to make property conclusive at the state
level have also to be satisfied at the level of the global political community. So, if a private property
regime commands a duty to relieve the poor (or, indeed, something more than this; for example,
some sort of ‗maximin‘ approach to the private property economy), this is not a duty that ends at the
boundaries of the given nation state but applies to the entire cosmopolitan population i.e. everyone.
A very radical property claim indeed!
Of course, this is not at all where Kant ends up. He is very cautious about the prospects for radical
change (though he is not hostile to all political reform). His distinction between active and passive
citizens (the latter including all those who were employed and all women) and his restriction of
political rights to the former does certainly not betoken any enthusiasm for reform of the property
order. Lucien Goldmann once wrote of Kant as being limited to a ‗bourgeois‘ view of the political
3
For a similar account, see Allen Wood (2004)
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universe. This may now have a rather old-fashioned ring to it. Perhaps it is better to endorse Brian
Tierney‘s overall (and not so Marxist) conclusion:
Some of the earliest critics of the Doctrine of Right were so dissatisfied with the work that they
dismissed it as a product of Kant‘s senility. No modern reader in likely to reach such a
judgement. Rather one has the impression of a very powerful mind searching, with every
refinement of skill and subtlety, for the solution of a problem that was insoluble within the
parameters that Kant had set himself
(Tierney, 2001, 399)
Fichte
Johann Gottleib Fichte, some thirty-eight years Kant‘s junior, was one of the first to offer a
commentary on the latter‘s critical philosophy. He is most famous for several variants of the
Wissenshaftslehere (The Science of Knowledge), first published in 1794, and most infamous for his Addresses
to the German Nation, delivered in 1807/8 (Fichte, 1982[1794-]; 2009[1807/8]). Like Kant, he has not
generally been seen as much of a political philosopher. Very recently this has begun to change.4 Like
Kant, his politics is built around the idea of a doctrine of right, separated from the treatment of
ethics, and it has a similarly central place for the institution of property – but, for Fichte, this
requires us to draw some very different conclusions.
The key texts here are Fichte‘s Foundations of Natural Right, first published in two parts in 1796/7,
overlapping with the extended appearance of Kant‘s Metaphysics of Morals, and the slightly later Closed
Commercial Society (Fichte, 2000[1796/7];2012[1800]; see also Fichte 2001[1795]). The first task of the
Foundations is to provide a ‗deduction of the concept of right‘. Fichte begins from the self-positing
‗I‘ which, he says, ‗cannot posit itself without ascribing a free efficacy to itself‘ (Fichte, 2000[1796/7],
18). In order to be free, the self-positing ‗I‘ (what Fichte calls ‗a person‘) must also posit and
determine a sensible world outside of itself, a sensible world within which and upon which it is free
to act (Fichte, 2000[1796/7], 24). The rational being only comes to constitute a person by ‗exclusively
ascribing to itself a sphere for its freedom‘ (Fichte, 2000[1796/7], 53). This gives us the twin components
of Fichte‘s conception of ‗original right‘:
4
Exceptions from the early twentieth century include Weber (1900) and Leon (1914). In the more recent literature, see
Lampert (1992), Neuhouser (2000), Wood (2004), Nomer (2005), Breazeale and Rockmore (2006), James (2009a;2009b;
2010; 2011) and Nakhimovsky (2011)
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(1) The right to the continued existence of the absolute freedom and inviolability of the
body ..
(2) The right to the continued existence of our free influence within the entire sensible
world
(Fichte, 2000[1796/7], 108)
Just as crucially for Fichte, this freedom of the individual is always and already intersubjective:
‗individuality is a reciprocal concept‘ (Fichte, 2000[1796/7], 45). A rational being cannot constitute and
recognize itself as such except in the context of recognizing others in a like condition. Each must
recognize that ‗the other is a free being and not to be treated as a mere thing‘ (Fichte, 2000[1796/7],
79/80).
In appropriating freedom for myself, I limit myself by leaving some freedom for others as
well. Thus the concept of right is the concept of the necessary relation of free beings one to another.
(Fichte, 2000[1796/7], 9; emphasis added)
The ‗task of the science of right‘ is to establish ‗how is a community of free beings, qua free beings, possible?‘
(Fichte, 2000[1796/7], 79). This can only be achieved when ‗each member of the community lets
his own external freedom be limited through inner freedom, so that all others beside him can also be
externally free‘. This then gives rise to the following ‗rule of right‘: ―limit your freedom through the
concept of the freedom of all other persons with whom you come in contact‖‘ (Fichte,
2000[1796/7], 10). Entering into such a community is ‗optional‘, but the concept of right is the only
way in which such a community can be legitimately constituted.
We have already seen that Fichte‘s idea of ‗original right‘ has two components: the inviolability of
the body and the right to exercise ‗free influence within the entire sensible world‘. It is from the
second of these ideas that Fichte derives his account of the nature of property. In order to be able
to exercise our free will in the world, it is necessary that that world should not be changed arbitrarily
-‗that everything remain as it was once known by the free being and posited in his concept‘. Given that
nature never changes itself (the appearance of change is the working out of necessary and
mechanical laws), this means the world must not be changed by other persons if our freedom is to
be fully realized. Thus, ‗if a person in the sensible world is thought of as isolated [he has] the right
to take possession of the entire sensible world‘ (Fichte, 2000[1796/7], 111):
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Here is the ground of all property rights. The part of the sensible world that is known to me
and subjected to my ends – even if only in thought – is originally my property.
(Fichte, 2000[1796/7], 106)
We do not need to act upon this external world in any way to make it our own (for example, by
labouring upon it). We may choose not to act (to leave a wood undeveloped, for example) and this
inactivity is then an exercise of our property right (to choose what to do). Property does not express
our relationship to things in the external world. It is not even originally about our relationship with
others in relation to these things. Rather, ‗the first and original property, the basis of all others,
consists in an exclusive right to a determinate free activity‘ (Fichte[1800], 63).
This does not mean that the entire sensible world is my property ‗in society‘. For every other person
also has the same original right to free activity. In recognizing the existence of other persons with
rights like ours (which is, for Fichte, part of what it is to be a person), we recognize that, if we are to
live in a community, we must undertake a mutual self-limitation of the second of our original rights
(our right to our bodily integrity need not and cannot be compromised). As a part of this process
of mutual recognition, ‗I am obligated to respect the objects the other has subordinated to his ends
[but] only under the presupposition and to the extent that he respects the objects I have
subordinated to my ends‘. But this process of mutual recognition is ‗problematic‘. I cannot know
what the other has subordinated to his ends, nor can he know the same about me. We may have
willed to subordinate the same objects. I may innocently will something to be mine which is already
‗owned‘ by another. And there are unknown others, whose claims I cannot know and with whom I
cannot interact. (Fichte, 2000[1796/7], 106, 113-4).
If we want to live in a rightful relation to and with others this mutual ignorance must be overcome.
Everybody must possess something, Fichte supposes, because this is the condition of our acting in the
world at all. No-one would enter the civil condition unless he recognized that the portion of
property attributed to him was fair: ‗if the other citizens had not granted him anything, he would not
have relinquished his claim to what they possess‘ (Fichte, 2000[1796/7], 169). To enter into rightful
relations, it is necessary that everyone declares what it is that he claims to possess. In this process
either (improbably) a compromise is reached in which everyone agrees to every other‘s prior claim
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(though in this process Fichte is clear that ‗first appropriation‘ can carry no weight – because it
cannot be proven) or else (and in fact) the claims must be adjudicated by a third party.5
They must unreservedly allow this third party to make judgements of right concerning the
present case and must guarantee this party‘s decision-making power for the future; therefore,
they must subject to this third party both their right to judge and their physical power; - this
means .. they must enter into a commonwealth with one another.
(Fichte, 2000[1796/7], 116)
Although it is possible to live outside such a state, we have a right to coerce others either to agree a
compromise with us or to enter into a commonwealth. One who will not agree to do this indicates
in this way that he is not interested in entering into a rightful condition and therefore can be
regarded as not having any rights (Fichte, 2000[1796/7], 111).
We now have the paradox that it is
only in giving up his freedom that a person truly secures it: ‗an individual who enters into such a
union receives his freedom, though he also gives it up, and he receives freedom precisely because he
gives it up‘ (Fichte, 2000[1796/7]), 100). Only in entering into the commonwealth does ‗possession
become property’: ‗All property is grounded in reciprocal recognition, and such recognition is
conditioned by mutual declaration‘ (Fichte, 2000[1796/7], 117) (This also means that rights of
property exist only within a community that has agreed to them and thus ‗no property is certain ..
unless it is recognized by the entire human species‘; Fichte, 2000[1796/7], 118). Only in a
commonwealth can we all agree to a rightful law of coercion which will ensure that all parties abide
by the decisions they have agreed a procedure to reach. The law of coercion is ‗to function so that
any violation of rights will result inevitably and with mechanical necessity .. in the same violation of
the violator‘s own rights‘, paralleling Kant‘s justification of a ‗hindrance to a hindrance‘ as an
enhancement of freedom (Fichte, 2000[1796/7], 130; see above, pp. 000).
The civil contract that creates the commonwealth has three components: 1) a citizens’ property contract
in which citizens mutually agree to make a claim to particular property while renouncing their claim
5
Only once a commonwealth has been established does first appropriation have a role in establishing who owns what
and then only because the citizens have agreed to use this as an appropriate rule (Fichte, 2000[1796/7], 120, 192).
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to the property of others; 2) a protection contract under which they agree to provide resources to help
protect the property of others against violations (again on a reciprocal basis) and 3) a unification
contract under which citizens agree not just to support each other as individuals but to support the
corporate being that their agreement generates, the common will embodied in the state (Fichte,
2000[1796/7], 170-7).
In the Closed Commercial State, Fichte is even clearer about the foundational status of this contract.
We should not suppose that ‗the state‘s sole concern is to protect its citizens‘ possession of those
things that it first finds them with, without having to inquire into the legal basis of [their]
acquisition‘:
Against such an opinion, I would say that it is the state‘s determination first to give each his
own, to put each in the possession of his property, and only then to protect him in this.
(Fichte 2012[1800], 17)
How should this state-sanctioned division of property look? Since ‗the goal of all human activity is
to be able to live .. the division must first of all allow everyone to exist. Live and let live!‘.
But in
fact it requires much more than this: ‗everyone wishes to live as pleasantly as is possible [and]
everyone has an equal right to make this demand’:
Because their rights are equal in this regard, we must make the division in such a way that
one and all can live as pleasantly as is possible (Fichte 2012[1800], 19; emphasis added)
The goal of the rational state will be ‗distributing the extant resources equally between all‘ (Fichte
2012[1800], 20). And the extended needs of all must be met before any can be allowed to enjoy
‗luxuries‘:
It would not be just if someone could pay for something he can do without while his fellow
citizen finds that goods that are absolutely necessary are either unavailable or unaffordable.
And moreover, what the former would use to pay for these goods is not even, by Right and in a rational state,
his own. (Fichte 2012[1800], 27; emphasis added)
According to Fichte, all of our rights to property in the state derive from our original right (which
we are required to recognize as being held equally by all human beings) to exercise ‗free influence
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within the entire sensible world‘. And the final end of all property is the right to live: ‗a principle of
all rational state constitutions is that everyone ought to be able to live from his labor‘ (Fichte,
2000[1796/7],185). This means that our claim to property as a claim upon particular things in the
sensible world is always provisional and subject to reallocation.
We have a right, not to the
exclusive possession of things, but to the means of making a living (using these things). Indeed, the
property of individuals finds its limits in this requirement (of ourselves and others) to be able to
labour: ‗each person possesses property in objects only insofar as he needs such property to pursue his
occupation‘ (Fichte, 2000[1796/7], 187; emphasis added). It follows that ‗the earth [as ‗humanity‘s
common support in the sensible world‘] cannot be owned‘. The agriculturalist has a right to the soil
he works and this may include the right (temporarily) to exclude others, but it is only a right of use.
He will not, for example, have a right to what lies beneath the soil which belongs to ‗the populace‘
and is probably best exploited by the state (Fichte, 2000[1796/7],65). Crucially, those who do not
earn a living off the land (artisans and merchants) and who therefore cannot produce their own
subsistence also have a property right to make a living - and this must be guaranteed by the rational
state. To the individual so placed, the state must ‗guarantee that he will always be able to find work
or sell his wares, and that in return he will receive his due share of the goods of the land‘ (Fichte,
2000[1796/7], 69). One can be required to labour (‗just as ..there ought to be no poor people in a
rational state, so too .. there ought to be no idlers in it either‘ (Fichte, 2000[1796/7], 186/7) but noone can be assumed to have contracted into a property regime in which they are worse off than they
would have been outside of it. Anyone who is unable to make a living from his labour is released
from all of the demands of the property contract, including the requirement to recognize the
property claims of others. The ‗products of my labour are my property‘ but only after I have entered
into the terms of the civil contract with the conditionality and charges that this presupposes (Fichte,
2000[1796/7], 191).
Much of the text of both the Foundations and the Closed Commercial State is given over to a description
of the extremely top-heavy machinery through which the state is to make good on this guarantee of
a right to work. Fichte certainly gives his state extraordinary powers in terms of the allocation of
labour, the setting of prices and (monopolistic) control of international trade. This state also has
very extensive police powers, including a requirement that all citizens carry identity cards, that they
do not travel beyond the state‘s borders and that they do not hold foreign currency. It is the central
purpose of the Closed Commercial State to show that a rightful state can only ever exist where the
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national political community has effectively closed itself off from international economic
transactions. Only a state that is ‗closed‘ can so manage its economy that the requirement that all
should live as pleasantly as possible and that none should have excessive wealth can be met. Fichte
seems happy that this state could be a monarchy or an aristocracy – certainly it should not be a
direct democracy – and the essential role of holding government accountable is ascribed to a strange
group (evoking classical Sparta) known as the ephorate (Fichte, 2000[1796/7], 151-62). There is, so
Fichte supposes, a space beyond that which the individual owes to the state where ‗the individual is
completely free; regarding these things, he is not intertwined with the whole of the body politic‘
(Fichte, 2000[1796/7], 178).
This is a realm of ‗absolute property, pure property, over which the state no
longer has any right at all’ (Fichte, 2000[1796/7], 209). It usually takes the form of money or, in
Fichte‘s rather strange usage, ‗my house‘ (which could be a room or even a chest-of-drawers), a
personal space which is off-limits to the authorities; maybe, even beyond the reach of the criminal
law (Fichte, 2000[1796/7], 211-222). This is the residuum left over after the citizen has discharged
all his responsibilities to the state.
It is this model of a state-centred planned economy with the direct allocation of labour that has
made Fichte seem an archaic, perhaps even a threatening figure. Given what we now know about
state-managed economies with a highly-developed police function and limited democratic
accountability, Fichte‘s model certainly looks distinctly unattractive. And economically, it looks to
have taken several steps back from the sophisticated political economy of Smith or Hume towards a
quasi-feudal order of guilds (see above, pp. 000). But however clunky and unconvincing it looks as
political economy, it is important to see that Fichte‘s model state is the product of the attempt to
carry through consistently his assumption about a human condition in which individual freedom is
central. (Recall that, for Fichte, the ‗task of the science of right‘ is to establish ‗how is a community of
free beings, qua free beings, possible?‘). And he does this solely on the basis of right, not utility (see
Wood, 2004, 77-9). In his account, a regime of property that best secures individual freedom is not
one that allows the freest scope to private property but one that ensures that property is always
subservient to what freedom really requires - that is our capacity to be able to carry through our
projects in the world, that is the second of his original rights, or the right to live (well). If this
doesn‘t work either there may be an institutional alternative or else all bets are off; (recall that the
property contract does not bind those who are not included within it by being part of a settlement to
which they could reasonably consent).
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Fichte‘s political programme may look pretty hopeless (which would disappoint him since it was one
of the ambitions of the Closed Commercial Society to bridge the gap between ‗the doctrine of right‘ and
the practice of politics) but his recasting of what property is and what it is for is still an important
innovation which opens the way to other discussions of the coming century, beginning with Hegel. 6
Hegel
Those who describe Kant‘s work as difficult simply have not spent enough time reading Hegel. But,
in fact, Hegel‘s sometimes impenetrable (and interminable) prose does disclose (amongst other
things) a remarkably shrewd understanding of a world that was changing rapidly around him.
Hegel‘s difficult language and sometimes deeply implausible conclusions should not distract us from
a penetrating critique of those accounts of property which had come to dominate what was, for him,
the modern world. And the fact that his ‗solutions‘ to the problems of property look so hopeless
should not detract from the fact that he asked many (if not all) of the right questions. 7
Hegel returned to the question of property throughout his life. It is raised in his Early Theological
Writings (see, for example, Hegel, 1948, 88) and again in his Jena lectures (Hegel, 1983 [1805/6]).
But the locus classicus of his discussion comes in his last published work, the lectures collected as
Elements of the Philosophy of Right (Hegel, 1991 [1821]) and the accompanying ‗Remarks‘ (Hegel‘s own)
and ‗Additions‘ (taken from students‘ notes).8 Following a substantial preface and introduction, the
work as a whole is divided into three parts: Abstract Right, Morality and Ethical Life (this final part
being further divided into a treatment of the family, civil society and the state). Section One of
Part One is a discussion of property.
Hegel‘s terminology is often technical and difficult and the challenges this raises are often intensified
by problems of translation. Nonetheless, when Hegel starts his investigation with ‗Abstract Right‘
we can understand him to be talking about the rights of individuals that are subject to protection by
the positive law (Wood, 1990, 94). These rights are crucially the rights of persons. The person is a
willing subject, a being capable of making (arbitrary) choices, but also a subject with a special
capacity to reflect upon and recognise itself: ‗a consciousness of itself as a completely abstract ―I‖ in
which all concrete limitation and validity are negated and invalidated‘.
6
The person has ‗knowledge
On Fichte‘s relation to Marx, see Rockmore, 1980; Rockmore, 2010
Even Hegel‘s critical admirers are inclined to see his account of private property as unsatisfactory: see, for example,
Franco, 1999, 77; Patten, 2002, 161.
8
On the range and reliability of these additional sources, see ‗Translator‘s Preface‘ (H.B. Nisbet) in Hegel, 1991 [1821],
pp.xxxv-xxxvii
7
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of the self as an object‘ (Hegel, 1991[1821], 68). In Patten‘s gloss (2002, 145), ‗personality implies a
sense of distance between oneself and one‘s ends and life situation‘. And this personhood or
personality is an historical accomplishment. It is a matter of learning (bildung). The ancient Greeks,
for all their excellence, lacked it. The Romans achieved it - but in a form which tore their society
apart.
However obscurely, but quite crucially, and here following Fichte, Hegel saw personality as
inter-subjective and based upon mutual recognition; (on the Fichtean roots of Hegel‘s view of
recognition, see Patten, 2002, 150-60): ‗Private property mediates recognition — both selfrecognition and recognition by others – and thus plays an essential role, in Hegel‘s view, in
constituting individuals as free agents‘ (Patten, 2002, 157). The person is not an isolated monad after the manner of Rousseau‘s natural man – but one who recognises himself as a self and, at the
same time, recognises others as selves too. Hence ‗the commandment of right‘ is this: ‗be a person
and respect others as persons‘ (Hegel, 1991[1821], 69).
‗In order to have being as Idea‘ (where ‗Idea‘ is understood as ‗a rational concept when it expresses
or embodies itself in something real‘), ‗the person must give himself an external sphere of freedom‘: In
Hegel‘s usage, ‗not until he has property does the person exist as reason‘ (Wood, 1990, 76; Hegel,
1991[1821], 73).
A person has the right to place his will in any thing [Sache]. The thing thereby becomes mine
and acquires my will as its substantial end (since it has no such end within itself), its
determination, and its soul – the absolute right of appropriation which human beings have over
all things [Sachen]‘.
(Hegel, 1991[1821], 75)
Property is created by the will and it is something more than possession. ‗To have external power
over something‘ is to possess it but in property ‗I, as free will, am an object to myself .. [I] become
an actual will‘ and this ‗constitutes the genuine and rightful element in possession, the determination
of property’ (Hegel, 1991[1821], 77). Generally, property-making requires an observable act of
possession (which may take the form of physical seizure, ‗giving form‘ or ‗marking‘; Hegel,
1991[1821], 84-8). Since the will is personal and individual, it follows that property will normally be
private property (although Hegel does allow that the state, but only the state, may sometimes
interfere in private allocation). I must also, in some sense, own myself, through willing to take
possession of myself, though no-one else may ever regard me as thing-like in a way which could
warrant their making me their property (Hegel, 1991[1821], 78-9).
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We are required (it is ‗the commandment of right‘) to ‗be a person and respect others as persons‘.
But we (and they) can only achieve personality by creating ‗an external sphere of freedom‘ and this is
only possible as we will that things be our property. The whole world of things (that which lacks a
will) is available to us to be so appropriated. But, for Hegel, the distribution of these things as
property is not really important. What matters, from the point of view of personhood is that I be a
possessor of property. Although it will always be particular things that I possess, these are contingent
(they are the particular rather than the rational element of property) and it follows that ‗what and how
much I possess is therefore purely contingent as far as right is concerned‘ (Hegel, 1991[1821], 79-80).
Everyone ought to be a person and to this extent all have need of (some) property. But this equality
is confined to being a possessor (of something). Equality in what we possess (rather than in our
status as possessor-persons) is chimeric and, in any case, ‗contrary to justice‘: ‗for right is that which
remains indifferent to particularity‘.
Given this, it is relatively unproblematic for Hegel that legitimate possession goes to the first
occupier, not ‗because he is the first, but because he is a free will, for it is only the fact that another
comes after him which makes him the first‘ (Hegel, 1991[1821], 81). Everyone except the first
possessor comes across a thing which already has a will inscribed within it (that is the will of the first
possessor) and therefore it is not a will-less thing available to be possessed. Appeals to some sort of
equality in the allocation of property are ‗vacuous and superficial‘, in part because that equality will
immediately begin to unravel as the industrious tend their resources while the feckless waste them,
but principally because the endowments made by nature are contingent: ‗one cannot speak of an
injustice of nature in the unequal distribution of possessions and resources, for nature is not free and is
therefore neither just nor unjust‘ (Hegel, 1991[1821], 80). The remaining sections of Part One of
the Philosophy of Right deal with Contract and Wrong.
Morality and Ethical Life (Sittlichkeit)
If this were all that Hegel had to say about property, it would be interesting but perhaps
unremarkable. We might think that Fichte drove similar assumptions (about the intersubjective
character of the person and the founding of property in an exercise of the will) towards more
interesting (if somewhat implausible) conclusions. It might appear that Hegel‘s was (just) one
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(more) variant of that story which depicts the modern state as defending the property rights of
present possessors in a mediated war of all against all. But, in fact, for Hegel abstract right is only
the beginning, and a part, of the story.
‗The sphere of right and that of morality [which is the
theme of Part Two of the Philosophy of Right] cannot exist independently; they must have the ethical
as their support and foundation .. Right exists only as a branch of a whole, or as a climbing plant
attached to a tree which has firm roots in and for itself‘ (Hegel, 1991[1821], 186).
In Stillman‘s
account:
Hegel‘s political philosophy is founded on property; but it is founded on property only so
that it can transcend property. The fully developed individual .. has moral and ethical ideals
and human interactions (for example, family and state) that are not based on private
property .. property must be aufgehoben, both preserved and transcended.
(Stillman, 1980, 1037)
Left to itself, the abstract right of private property may embody wills which are arbitrary and
contingent – and potentially mutually self-defeating (Hegel, 1991[1821], 113). Ethical life (‗the unity
of the subjective with the objective good which has being in and for itself‘) is ‗the Idea of freedom‘
(recalling the sense that ‗Idea‘ is a rational concept made real); (Hegel, 1991[1821], 186, 189). It is
the overcoming of ‗abstract right‘ and ‗subjectivity of spirit‘ (which Hegel has explored at length in
Part Two of the Philosophy of Right under the title of ‗Morality‘). In Hegel‘s own words, ‗Right only
comes to actuality in the state. It is not contingent that men have entered into the state, [since] it is
only in the state that the concept of freedom comes to its self-sufficient existence‘ [selbstandigen
Dasein] (Hegel, 1983[1817-19], 222).
Ethical life consists of three elements: the state, the family and civil society. Civil society, to which
Hegel gives a quite new meaning, is the last of these three to emerge and uniquely the achievement
of the modern world. It is the realm of absolute particularity (‗in civil society, each individual is his
own end, and all else means nothing to him‘) made universal (in civil society, ‗the principle of
particularity passes over into universality‘). This heady mixture gives us ‗a spectacle of extravagance
and misery as well as of the physical and ethical corruption common to both‘ (Hegel, 1991[1821],
220).
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Civil Society
At the heart of civil society lies the system of needs. This is the realm of unlimited particularity and
of private property. Human needs (unlike animal needs) are plastic and inexhaustible and new needs
are constantly being created (often by those who stand to profit by satisfying them; Hegel,
1991[1821], 229). The process of needs-expansion is ‗endless‘ (Hegel, 1991[1821], 229). And Hegel
is clear that this multiplicity of needs is vastly to be preferred to the advocacy of the simple needs of
simple man in the state of nature – this is just a state of ignorance and under-development. In the
system of needs, each, while seeking only to gratify his own needs and satisfactions, contributes to
an (unintended but rational) system which increases the welfare of all. The recognition of this is the
great scientific achievement of the political economists (Hegel, 1991[1821], 227). Work, and more
particularly work under a developed division of labour, is the medium through which this is
achieved. Of course, this is a realm of enormous inequality – depending on one‘s skills and capital but the call to pursue equality in this sphere is misplaced because ‗the right of particularity‘ is a right to
be unequal; for this is ‗an inequality posited be nature‘ (Hegel, 1991[1821], 234).
The organization of working life under the advanced division of labour gives rise to estates –
communities of those working in the same area – which help to qualify the selfishness in the system
of needs, giving their members a shared but sectional community of interest. These become,
alongside the family, so Hegel maintains, a second basis of the state (Hegel, 1991[1821], 234).
Hegel identifies three estates: the substantial or agricultural estate, the ‗estate of trade and industry‘
and the ‗universal estate‘ which has ‗the universal interest of society as its business‘ (Hegel,
1991[1821], 237).
The second element of civil society is ‗the Administration of Justice‘ through which ‗infringements of
property or personality are annulled‘ and ‗the undisturbed security of persons and property should be
guaranteed‘ (Hegel, 1991[1821], 260; 240-59). But there is also a more positive side to the system of
needs; that is, that ‗the livelihood and welfare of individuals should be secured – i.e. that particular
welfare should be treated as a right and duly actualized‘.
‗Good laws will cause the state to flourish, and
free ownership is a fundamental condition of its success‘ but, at the same time ‗I have a right to
demand that, within this context, my particular welfare should also be promoted‘ (Hegel,
1991[1821], 260).
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Promoting welfare is the function of the third element in civil society: ‗the police‘ and the
corporation. The police (here in its wider sense of a public authority responsible for social order
and well-being) has a public responsibility to adjust for the disutilities thrown up by the system of
needs – the meeting of market failures, the protection of consumers and so on – but also to provide
for those needs that the market does not provide for everyone: public health and education, for
example.
But it is also one of the consequences of the rise of civil society that it ‗tears the
individual away from family ties‘ and, in these circumstances civil society must take on the role of
‗universal family‘ for its members: ‗if a human being is to be a member of civil society, he has rights
and claims in relation to it, just as he had in relation to his family‘ (Hegel, 1991[1821], 263). The
poor, in particular, find themselves with ‗the needs of civil society and yet .. more or less deprived of
all the advantages of society, such as the ability to acquire skills and education in general, as well as
of the administration of justice, health care and often even of the consolation of religion‘.
In this
context, the police authority ‗takes over the role of the family‘, both meeting the immediate needs of
the underprivileged but also addressing ‗the disposition of laziness, viciousness, and the other vices
to which their predicament and sense of wrong give rise‘ (Hegel, 1991[1821], 265).
Civil society,
with its advanced division of labour and multiplication of manufactured needs, is also vulnerable to
periodic economic downturns which will throw decent labouring folk out of work and lead to
relations of dependence which will sometimes leave people unable to support themselves through
their work.
It is in this context that Hegel fears the emergence of a rabble, ‗which in its turn makes it much
easier for disproportionate wealth to be concentrated in a few hands‘. A rabble is not defined
simply by poverty and unemployment. It is marked also by ‗inward rebellion against the rich, against
society, the government etc.‘. And, in Hegel‘s view, this is because members of the rabble have
what is at least in part a legitimate feeling that they are being denied that which is their right within
civil society – that is, the means of securing their welfare: ‗no one can assert a right against nature,
but within the conditions of society hardship at once assumes the form of a wrong inflicted on this
or that class‘ (Hegel, 1991[1821], 266/7). It follows that
Despite an excess of wealth, civil society is not wealthy enough – i.e. its own distinct resources are
not sufficient – to prevent an excess of poverty and the formation of a rabble.
(Hegel, 1991[1821], 267)
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Hegel‘s own rather inadequate solution is a mixture of export-led growth, colonization and begging.
The Corporation is a further variant of ‗the second family‘, organising (selectively) the collective
interests of those employed within a particular trade or industry, offering employment guarantees
and providing the individual with an ‗honour in his estate‘ (Hegel, 1991[1821], 271). Welfare delivered
through the corporation avoids the stigma associated with reliance upon the public authorities
(Hegel, 1991[1821], 272). The corporation also exists to check the centrifugal force of the system
of needs. Without some sense of corporate identity and pride (a commitment to the values and
standards of a ‗profession‘ as we might now say), the individual will see himself simply as a utilitymaximiser in a limitless market – with inevitably destructive consequences (Hegel, 1991[1821], 272).
The State
Given all this, it might seem best to rein in the wild particularity of civil society (which Hegel takes
to be the Platonic view) but in fact this extravagant particularity is the necessary basis of subjective
freedom, perhaps the greatest achievement of the moderns. To this extent civil society and its
regime of private property must be protected. But, as we have just seen, there are elements within
civil society itself which are to countermand the excesses of the free-play of private property plus
contract. Beyond this, the family and, above all, the state act to check or mediate these outcomes.
In Hegel‘s account, the family is the sphere of ‗immediate substantiality‘ and dominated by love.
Within the family, there is a sense in which property is held in common (although it is usually
managed by the family‘s patriarchal head): ‗the family‘s resources .. are common property, so that
no member has particular property, although each has a right to what is held in common‘ (Hegel,
1991[1821], 209). Although, property relations do in fact impinge upon the family (especially in
rules over inheritance), in the family, ‗abstract property‘ (‗the arbitrary moment of the particular need
of the single individual‘) is ‗transformed, along with the selfishness of desire, into care and acquisition
for a communal purpose, i.e. into an ethical quality.‘ But this ‗immediate or natural ethical spirit‘ is
subject to dissolution into civil society. Both must be overcome in the instantiation of the state; that
state which is ‗the actuality of the ethical Idea‘, the final resolution of objective freedom and
subjective freedom (Hegel, 1991[1821], 275, 276):
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The principle of modern states .. allows the principle of subjectivity to attain fulfilment in
the self-sufficient extreme of personal particularity, while at the same time bringing it back to
substantial unity and so preserving this unity in the principle of subjectivity itself .. the
universal must be activated, but subjectivity on the other hand must be developed as a living
whole.
(Hegel, 1991[1821], 282/3)
Hegel argues that ‗if the state is confused with civil society and its determination is equated with the
security and protection of property and personal freedom, the interest of individuals as such become the
ultimate end for which they are united‘. But this is wrong – as is the whole contractarian tradition to
which it has given rise. Wrong, too, is that attempt to derive the state from the exercise of
contingent might or as the expression of the abstract will of its constituents (this was the mistake of
Rousseau and his followers in the French Revolution; Hegel, 1991[1821], 277). The state is prior to
the individual: ‗since the state is objective spirit, it is only through being a member of the state that
the individual himself has objectivity, truth, and ethical life‘. (Hegel, 1991[1821], 276). In the end,
the infinite desires and boundless deprivation and want of civil society ‗can be restored to harmony
only through the forcible intervention of the state‘ (Hegel, 1991[1821], 223). Private property is
essential as the expression of subjective particularity, essential to the lived experience of freedom in
the modern world. But, at the same time, it must always be subject to that state which is ‗the ethical
whole, the actualization of freedom .. the march of God in the world‘ (Hegel, 1991[1821], 279)
Of course, one of the longest standing objections to Hegel‘s account is that, having given this worldhistorical status to the state, he then goes on to identify its ideal form with the stiffly authoritarian
monarchy of contemporary Prussia. And when every allowance has been made for Hegel‘s more
liberal and constitutional moments (for a generous account of these, see Wood 1990, 242, 258), it is
very hard to see that any extant (or possibly even imaginable) state could possibly do or be what
Hegel requires of it. But, as critics ever since Marx have pointed out, this is not what is most
important or most interesting about Hegel‘s view. In relation to our concerns, this must surely
reside in Hegel‘s judgement that property which is private, at least in the sense that it is somehow
subject to the will of a given individual or individuals, is a necessary component of the liberty of the
moderns – and, in this sense, a great historical achievement. Its institutional embodiment in the
system of needs of civil society is also to be welcomed. But, at the same time, it unleashes a
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firestorm of particularity and selfishness, which is potentially destructive of state and society. To
this extent, it must be preserved but always subject to counteracting tendencies within civil society
and, beyond this, to the overwhelming ethical purposes – and countervailing authority – of the state.
The disadvantaged in civil society have what is, at least in part, a legitimate grievance against their
poverty –and one which it is the duty of the state to address (however so much this ‗assistance‘ may
take a coercive form).9 More than this, Hegel rejects that whole tradition (which we have surveyed
at some length) which sees the state as an embodiment of the will of (prior) private property-holders
who have contracted their way into a civil condition and to whose prior claims the state is, in some
sense, beholden. Having secure rights over private property is essential to the exercise of my free
will as a person and freedom - ‗actualized freedom‘ – is central to Hegel‘s ambitions in the Philosophy
of Right: ‗it is the absolute end of reason that freedom should be actual‘ (Hegel, 1991[1821], 258).10
Hegel does not though begin from the fictional isolated monad but from persons constituted
through their mutual recognition of other persons and whose highest freedom is expressed in the
existence of the state. History does not matter; nor does the myth of a founding contract. What
matters are the relations of right which reason commands and the state instantiates (Hegel,
1991[1821], 324).
It is an account of this kind that informs Marx‘s reading of the Philosophy of Right (more especially, of
those fifty-two sections on which Marx‘s commentary has survived; Marx, 1970 [1843]). In essence,
Marx sees that Hegel has correctly captured the nature of modern civil society, of its particularity
and indifference to the common good. But he has mistakenly claimed that this particularity can be
contained and overcome by a universalist state. In fact, it is not the state that determined the
character of civil society (and its private property regime) but civil society and the logic of private
property that determines the character of the state.
In contrast to Hegel‘s account of my willing
the existence of private property, ‗private property has become the subject of the will, and the will is
merely the predicate of private property‘ (Marx, 1970 [1843], 101). Similarly, ‗actual private property
is .. not only the support of the constitution but the constitution itself‘ (Marx, 1970 [1843]107). This
is a story to which we return in a later chapter. For now we return to the debates that swirled
around what was the definitive and climatic event of Hegel‘s youth – the French Revolution.
9
Indeed, Hegel‘s argument has been read, notably by Jeremy Waldron (1988, 4-5, 343-89), as a justification for a general
right to property. If private property is rqwuried to be a person and if we believe that all should seek to be persons, we
may think that it is necessary that we allocate to everyone enough private property to enable her/him to realise the
‗commandment of right .. be a person and respect others as persons‘ (Hegel, 1991[1821], 69).
10
According to Paul Franco (1999, 155), ‗freedom is the starting-point and, indeed, sole object of the Philosophy of Right‘.
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