Grotius and Kant on Original Community of Goods and Property

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Sylvie Loriaux Département de science politique, Université Laval, Quebec [email protected]

Abstract

This paper is interested in the critical potential of the idea of original common possession of the Earth. On the basis of a comparative analysis of Hugo Grotius and Immanuel Kant, it shows how different the meaning of this idea can be within a theory of property or territory. The first part is devoted to Grotius’s account of why and how the institution of property was progressively introduced. It highlights the importance this account attaches to the intention of the first distributors for a good understanding of property laws, and in particular, for an understanding of their non-application in situations of extreme necessity. The second part takes the opposite path and shows that although Kant rejects the very existence of a right of necessity, the idea that one might be liberated from a law is not completely absent from, and even plays a crucial role in, his account of property. Clarification of this role ultimately leads us back to the idea of original possession in common of the Earth.

Keywords

Hugo Grotius – Immanuel Kant – original community of goods – necessity – permissive law – property rights

* The author would like to thank the journal’s anonymous referees and editor for their very helpful comments and suggestions on earlier drafts of this article. She would also like to thank the participants in the Workshop on Grotius’s Place in the History of Moral and Politi- cal Thought (Leuven, 2017) and in the Workshop on Private Property and Territorial Rights (Bayreuth, 2017) for illuminating discussions. While writing this article the author was sup- ported by the Fonds de Recherche du Québec — Société et culture (frqsc), for which she is grateful.

Grotius and Kant 107

For anyone interested in property and territorial rights, the idea that the Earth and its resources are originally held in common intuitively presents itself as an appropriate starting point and as an attractive criterion. It appears as an appropriate starting point because it brings us back to a viewpoint that is historically or logically prior to the institution of these rights and because it allows us to identify more clearly both the raison d’être and the specifici- ties of a privatisation of natural resources, including that of pieces of land. It brings into relief the contingent character of existing property and territorial arrangements — insofar as these arrangements result from human decisions, things could indeed have been different than they currently are — and the modifications these arrangements have made to the way human beings relate to the Earth and to natural resources. The idea of original common possession of the Earth and its resources is also attractive in a normative sense as it conveys the idea that human beings originally find themselves in a situation of equality. Whether natural resources are conceived of as originally belonging to everyone (i.e., a positive community of possession) or as originally belonging to no one in particular (i.e., a negative community of possession), no human being originally seems to have more claims than another to these resources. And this original situation of equality in turn suggests that the acquisition or the exercise of property and territorial rights might have to be subject to certain constraints. If all human beings are originally equal in their relationship to the Earth, then any inequalities generated by property or territorial rights in terms of inclusion or exclusion might indeed seem to require a justification. It goes without saying that these normative considerations are of great relevance today, while there are rising concerns about the destruction of certain natural resources, while millions of refugees live in a situation of extreme insecurity, while private companies endanger food security by engaging in the practice of ‘land grabbing’, and while drought and desertification force entire populations to move. Bringing into relief this critical potential should, however, not cause us to lose sight of the possibility of significant nuances, or even profound diver- gences. As this paper aims to show on the basis of a comparative analysis of Hugo Grotius and Immanuel Kant, the idea of original common possession of the Earth can take very different forms and can, as a result, come to play a very different role within a theory of property or territory. Several reasons motivate the choice of these two authors. First, they conceptualise the original community of possession from a completely different perspective. Thus, while Grotius develops a historical account, which he mobilises in his identification of limits to property rights, Kant conceives of this community in a rather rational way, as an a priori condition for the possibility of property. Although he

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108 Loriaux does not explicitly state it, Kant is often assumed to position himself in opposi- tion to his natural law predecessors, and in particular against Grotius.1 Second, their discussion of the original community of possession is an opportunity to address other overlapping themes that offer insights into the implications of their respective positions. Noteworthy in this respect is the connection Grotius and Kant establish between the idea of original possession in common of the Earth and the suspension of the law. In Grotius, this connection appears in the form of a right of necessity, which temporarily interrupts, or at least limits, the application of positive laws; in Kant, it appears in the form of a permissive law of practical reason, which temporarily postpones the application of natural right (Naturrecht) in order to make the original acquisition of property and territorial rights possible. Third, Grotius and Kant have gained increasing prominence in theories of global justice. While Kant’s defense of a ‘federalism of free states’ and his recognition of a cosmopolitan right have been a source of inspiration in international political theory for some time,2 Grotius’s idea of original possession of the Earth in common has made an entrance more recently as a standpoint particularly suited to tackling issues of global concern.3 Accordingly, their different ways of conceiving the original possession in common of the Earth can be expected to also reveal different ways of theorising territorial and environmental issues.4 This paper is divided into two parts. The first part is devoted to Grotius’s account of why and how the community of possession in which human beings originally found themselves was progressively abandoned in favour of property and territorial rights. It highlights the importance this account attaches to the intention of the first distributors for a good understanding of property laws, and in particular, for an understanding of their non-application in situations of extreme necessity. The second part takes the opposite path and shows that although Kant rejects the very existence of a right of necessity, the idea that one might be liberated from a law is not completely absent from, and even

1 Immanuel Kant, ‘Doctrine of Right’ [dr], in: Practical Philosophy, ed. by M. Gregor (Cambridge: Cambridge University Press, 1996), 6:251 [Akademie Ausgabe], p. 405. 2 See, for instance, Jürgen Habermas, The Divided West (Cambridge/Malden: Polity Press, 2006), pp. 115–93. 3 See in this respect Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012), pp. 89–107. For a discussion of Risse’s enterprise, see Arash Abizadeh, ‘A Critique of the “Common Ownership of the Earth” Thesis’, Les ateliers de l’éthique/The Ethics Forum 8 (2013), 33–40 and Annie Stilz, ‘On Common Ownership of the Earth’, Ethics and International Affairs 28 (2014), 501–10. 4 Jakob Huber, ‘Theorising from the Global Standpoint: Kant and Grotius on Original Common Possession of the Earth’, European Journal of Philosophy 25 (2017), 231–49.

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Grotius and Kant 109 plays a crucial role in, his account of property. Clarification of this role ultimately leads us back to the idea of original possession in common of the Earth.

Grotius: Primitive Community of Possession and Necessity

At the beginning of the world, Grotius tells us, human beings were in a condition where all was common. The Earth and its resources were common to all human beings in the sense that they were not properly owned: humankind received from God everything in common without distinct owners being established and hence without a good so appertaining to one person that it could not be to another’s in the same way.5 From this primitive community also fol- lowed a use right common to all human beings. God ‘gave to Mankind in gen- eral a Dominium over Things of this inferior World’, authorising each human being to take and to consume for his needs everything he wished from the Earth and its resources, without needing the consent of others.6 In addition, a certain equality had to be observed so that ‘one as well as another might have the Liberty of using what was common’.7 Accordingly, when Grotius says that the Earth and its resources were originally common, he means not only that they originally belonged to no one in particular (or that human beings were in a ‘negative’ community of possession), but also that each human being had an equal right to use them. Furthermore, he also means to say that this right could be exercised provided that it did not take away from anyone, against his consent, what already belonged to him. This latter condition immediately raises a question: if the Earth and its resources must be considered common, what are those things that can nevertheless be properly one’s own and cannot be taken away by others without one’s consent? Should we recognise the existence of things belonging to human beings ‘by nature’ or ‘natural rights’? Grotius’s answer is affirmative. The primitive state does not rule out any kinds of things that are ‘properly ours’, for human beings already possess natural rights to their lives, limbs, and liberty, which cannot be invaded without injustice.8 These natural rights are ultimately

5 Hugo Grotius, The Free Sea [ml], translated by Richard Hakluyt, ed. by David Armitage (Indianapolis: Liberty Fund, 2004), v, p. 25. 6 Hugo Grotius, The rights of war and peace [ibp], translated by John Morrice et al., ed. and with intro by R. Tuck, (Indianapolis: Liberty Fund, 2005), ii.2.2.1, p. 19. 7 Hugo Grotius, ibp ii.10.1.2, p. 109. 8 Hugo Grotius, ibp i.2.1.3, p. 63. See also Alejandra Mancilla, ‘What we own Before Property: Hugo Grotius and the Suum’, Grotiana 36 (2015), 63–77. That certain rights are identified with

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110 Loriaux a function of two kinds of natural principles: primitive principles, which rest on the natural desire that human beings have to preserve their existence, and secondary principles, which refer to their natural desire to live in a state of society organised in accordance with right reason. From these two kinds of natural principles, Grotius deduces a series of natural duties whose normative force mainly depends on their conformity with or contribution to the nature of man.9 The idea is that given the features that are distinctive of our human nature, certain things are necessary to our flourishment and therefore the object of distinctively human natural duties.10 More particularly, primitive natural principles generate a natural duty to preserve one’s existence, including a duty to acquire and to preserve things that are useful to it, whereas secondary natural principles somewhat moderate the fulfilment of the natural duty of self- preservation by generating a natural duty not to encroach on what belongs to another because this would undermine the society that human beings naturally need. It is thus the desire of society, and not the desire of self-preservation, which is the source of ‘Right, properly so called’ and its attendant duties of ‘expletive justice’.11 These include the duty to refrain from what is another’s, to return things that do not belong to us, and to rectify the prejudices we have caused. From this understanding of right as ‘Right, properly so called’ or that which is not ‘repugnant to the Nature of a Society of reasonable Creatures’12

natural rights does however not mean, for Grotius, that they cannot be alienated or su- perseded. In his view, a person could for instance very well decide to sell her freedom and make herself into another’s slave. 9 Jon Miller, ‘Hugo Grotius’, in: The Stanford Encyclopedia of Philosophy, ed. by E.N. Zalta (Stanford: Metaphysics Research Lab-Stanford University, 2014), url = . Note however that Grotius oscillates between a voluntarist and a non-voluntarist conception of normativity, the former deriv- ing normative principles from God’s will, the latter from the nature of things. See Hugo Grotius, ibp proleg. 11 and 12, p. 38. 10 Hugo Grotius, ibp i.1.10.1, p. 54; ibp i.1.12, pp. 56–57. 11 Hugo Grotius, ibp proleg. 8, p. 37 and ibp proleg. 16, p. 38. By mobilising the idea of natural human sociability (or the idea that nature does not only lead individuals to their self- interest), Grotius wants to counter the objection formulated by, among others, Carneades according to which natural right does not exist or would be a folly because it would imply a concern for others that undermines human beings’ natural pursuit of self-interest (ibp proleg. 5 and 6, pp. 36–37). It could be objected that insofar as a social life proves necessary for a commodious life, ‘right properly so-called’ ultimately depends on considerations of self-interest. Against this, however, Grotius argues that respect for right would remain wise even without any promise of utility because it conforms to our nature: we were born for a life in common (ibp proleg. 19, pp. 39–40). 12 Hugo Grotius, ibp i.1.3.1, p. 52; ibp i.2.1.3, p. 63.

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Grotius and Kant 111

Grotius derives another understanding of right which, this time, attaches specifically to the person and refers to a ‘faculty’, that is, ‘a moral Quality annexed to the Person, enabling him to have, or do, something justly’.13 Natural rights to life, limbs, and liberty are thus identified with ‘faculties’ (also called ‘perfect rights’), and as such, they give their possessor a certain sovereignty,14 a moral power to do certain things without needing the permission of others and without others being authorised to force or to oblige him not to do so. It is in fact the possessor of faculties or perfect rights himself who has the power to impose on others obligations to respect his rights and to use force against those who fail to do so. For Grotius, the use of force is not necessarily opposed to right, but can be an ‘instrument of right’, all the more when, as in the primitive state, a judicial settlement remains unavailable.15 The use of force which aims at defending one’s life and procuring necessities accords with primitive principles; and insofar as it does not infringe on the rights of others, it also accords with secondary principles.16 Now, to return to the Grotian primitive community of possession: each human being originally possessed natural rights to life, limbs, and liberty. Inso- far as the Earth and its resources were useful to his preservation, each human being also possessed a natural right to use them for his needs. As an integral part of the natural and perfect right to self-preservation, the primitive right of use was also a natural and perfect right, which means that each human being had the moral power to use the Earth and its resources without needing the consent of others and without others being authorised to force or to oblige him not to do so. To the extent that the maintenance of society requires not encroaching on what belongs to another, each human being had both the obligation not to infringe on the use right of others and the right to resort to force to defend his own use right against external threats. A final point worth noticing is how the primitive use right related to the external things upon which it was exercised. A person could not exercise her right of use, which naturally belonged to her, without precisely making use of the Earth and its resources, which were originally common and belonged to no one in particular. Correlatively, she could not refrain from infringing upon another person’s use right without refraining from encroaching upon the

13 Hugo Grotius, ibp i.1.4, p. 52. 14 James Tully, A Discourse on Property. John Locke and his adversaries (Cambridge: Cambridge University Press, 1980), pp. 83–84. See also Richard Tuck, The Rights of War and Peace, rev. ed. (Oxford: Oxford University Press, 2001), pp. 84–85. 15 Miller, ‘Hugo Grotius’. 16 Hugo Grotius, ibp i. 2.1.3, pp. 63–64.

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112 Loriaux external things this other person was physically using — without refraining, for instance, from snatching the apple she was holding in her hand or from expelling her from the place she was occupying. It must therefore be admit- ted that already in the ‘early State of Things, when all was common’,17 it was possible for a person to temporarily (and even definitively) exclude all others from the use of a natural resource.18 That is to say, it was possible for a natural resource to so appertain to a person that it could not be another’s; and this leads Grotius to claim that the ‘Use of the Right common to all Men did at that Time supply the Place of Property, for no Man could justly take from another, what he had thus first taken to himself’.19 He illustrates this claim by referring to Cicero’s description of the theatre: ‘Tho’ the Theatre is common for any Body that comes, yet the Place that every one sits in is properly his own’.20 The community of goods could however not subsist. It was suitable for the state of great simplicity and relative innocence in which human beings found themselves initially, but human beings became dissatisfied with this state. Wishing for a more commodious life, they started developing several arts, applied their labour to them, and progressively allowed themselves to be governed by pleasure, rivalry and ambition. Added to this was an important increase in human population, which had the consequence that scarce or ex- haustible goods, which disappear with consumption, could no longer be used by all without affecting the sufficient use of some. This was a second reason why labour and storage were found necessary. It is these transformations in people’s living conditions which, according to Grotius, have led to a division of goods: first a division of certain things (such as cattle and agricultural prod- ucts), then a division of land between nations, and lastly between families. In his view, the introduction of property was thus more a response to the increasing rivalry, ambition and scarcity resulting from human beings’ search for a more commodious life and from their increasing number than a more effective means of satisfying basic human needs or a moral duty.21 As human beings

17 Hugo Grotius, ibp ii.2.2.3, p. 20. 18 A person could definitively exclude all others from a good by entirely consuming that good. 19 Hugo Grotius, ibp ii.2.2.1, p. 19. 20 Ibid. 21 This interpretation diverges from Stephen Buckles’s, according to which property has the same purpose as the primitive use right, namely the satisfaction of basic human needs or human self-preservation, and needs therefore no justification. See Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991), pp. 44–46.

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Grotius and Kant 113 were no longer content with the fruits spontaneously offered by nature, they felt the need for labour and industry, but the increasing lack of equity and love that simultaneously arose among them also meant that the fruits of their labour and industry were prone to others’ potentially disproportionate use and that a ‘just Equality’ was no longer observed.22 It is in order ‘to preserve an Equality, that is, that every Man might enjoy his own’ that property was designed, but there would have been no point in its introduction if human beings had persisted in their primitive simplicity and innocence.23 After having considered what he takes to be the causes of the abandonment of the primitive community of goods, Grotius examines the way in which the introduction of property proceeded and notes in this respect that it could not have resulted from a ‘mere internal Act of the Mind’ but must have resulted from conventions. In order for all human beings to be able to know what each wanted to be his own and to refrain from others’, they had to expressly agree on a specific division or to tacitly agree on a principle of division. Concerning the latter, Grotius argues that human beings ‘ought to be supposed’ to have tacitly agreed that, for all common things that could not have been divided during the first partition, property starts with seizure or first possession — apprehen- sion for moveable things and construction and delimitation for immoveable things.24 To return to the example of the theatre, human beings ought to be supposed to have tacitly agreed that each place will remain the property of the one who first sat on it even though he is no longer sitting on it. It must be noted that the conventions discussed here create property, but not the obligation to respect another’s property. To be sure, Grotius holds that the first proprietors tacitly agreed that those who have in their power something that belongs to another have the obligation to return it to him, otherwise property would be inadequately protected.25 But as we have seen, the obligation to refrain from what belongs to another follows from natural law, not from voluntary law. If it is morally prohibited to encroach on another’s property, it is not in virtue of an act of the will, but in virtue of the non-conformity of such encroachment with the rational and social nature of human beings.26 What conventions or human will do is rather define in what way a person or a group of persons may legitimately come to appropriate a thing that does not already belong to anyone, and hence which particular distribution of property rights

22 Hugo Grotius, ibp ii.2.2.4, p. 21. 23 Hugo Grotius, ibp ii.2.2.1, p. 19; ibp ii.10.1.2, p. 109; ibp ii.10.2.1, p. 110. 24 Hugo Grotius, ibp ii.2.2.5, p. 21; ibp ii.2.3.3, p. 22; ml v, p. 26. 25 Hugo Grotius, ibp ii.10.1.2, p. 109. 26 Hugo Grotius, ibp ii.1.10.4, pp. 54–55.

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114 Loriaux natural law demands to respect. Furthermore, the reason why property but not the primitive use right requires conventions is mainly epistemic in nature. From the moment a thing can belong to a person even though she is not using it, it is no longer sufficient (and actually not necessary either), in order to refrain from it, to know whether or not she is currently using it.27 There must be agreements either on a specific division or on a principle of division, and people must know what these agreements are (that occupation creates property, for instance). That the community of goods has progressively given way to property does however not mean, for Grotius, that the primitive right of use has completely been absorbed by property and not even that it cannot bear on things that have already become someone’s property. This position may seem paradoxical: how can we at the same time recognise that a person is the legitimate owner of a thing and authorise all others to use that thing without therefore needing the consent of its owner? This is what Grotius will try to show by returning to the intention of the first distributors. According to him, in order to understand property laws (and indeed all human laws), not only must we return to the intention of those who introduced them, but we must also believe that this intention was ‘to deviate as little as possible from the Rules of natural Equity’.28 He does not explicate in this context how the notion of equity must be understood, but elsewhere in De jure belli ac pacis he evokes the possibility of two distinct interpretations.29 The first refers to ‘that Part of Justice which restrains the Generality of the Terms of a Law, according to the Intent of the Law-maker’ and the second to ‘every Thing which is better done than not done, tho’ not according to the strict Rules of Justice, properly so called’. In other words, the notion of ‘equity’ refers, on the one hand, to a rather procedural requirement to interpret the law according to the intent of its author, and on the other hand, to a substantive norm of what ‘is better done than not done’, which can go beyond the realm of ‘the strict Rule of Justice, properly so called’ and hence beyond the realm of what belongs to each. From the necessity to return to the intention of the first distributors and to understand this intention in terms of natural equity, Grotius deduces the existence of a right of necessity. In view of what has just been said, the idea seems to be the following: if we interpret the law of property according to the

27 Tully, A Discourse on Property, p. 82. 28 Hugo Grotius, ibp ii.2.6.1, p. 23. 29 Hugo Grotius, ibp iii.20. 47, p. 160. See also Johan Olsthoorn, ‘Two Ways of Theorizing “Collective Ownership of the Earth”’, in: Property Theory: Legal and Political Perspectives, ed. by J. Penner & M. Otsuka (Cambridge: Cambridge University Press, forthcoming).

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Grotius and Kant 115 intention of its author and if we conceive of this intention in terms of ‘natural equity’, and more particularly in terms of ‘every Thing which is better done than not done’, then we must consider goods as having been distributed to proprietors only ‘with this favourable Exception, that in such Cases [of necessity] one might enter again upon the Rights of the primitive Community’30 or that necessity has been ‘excepted’ from the law of property.31 More precisely, we must admit that in a situation of extreme necessity, the law of property remains silent or does not apply, and that the primitive right to use things re- vives, as if things had remained common. The precise nature of the Grotian right of necessity remains ambiguous however. On the one hand, considering the link that Grotius establishes between equity and ‘every Thing which is better done than not done, tho’ not according to the strict Rules of Justice, properly so called’, we might be tempted to interpret this right as an ‘aptitude’ or as an imperfect right, and hence as the proper subject of attributive justice. As Grotius indicates, attributive justice indeed differs from strict or expletive justice in that it aims at what is suitable or what fits each best, not at the protection of what properly belongs to each.32 It is the province of our ‘passive’ rights to benefit from others’ duties to us without having any sovereign power over the object of our rights.33 On this reading, the right of necessity would be an imperfect right to be provided with certain goods because we need these goods much more than those who own them. The trouble, however, is not only that Grotius explicitly refuses to derive this right from the law of charity,34 but more fundamentally, that his conception of the right of necessity as a revival of the primitive use right prevents us from equating the right of necessity with a right to be provided with resources, even if these resources prove necessary to preserve one’s existence.35 The reason for this is that, although the primitive community of possession does in Grotius not exclude anyone from the use of the Earth and its resources (at least, not as

30 Hugo Grotius, ibp ii.2.6.4, pp. 23–24. 31 Hugo Grotius, ibp ii.2.6.2, p. 23. 32 Hugo Grotius, ibp i.1.7-8, p. 53; ibp proleg. 10, p. 37. 33 To take an example, whereas expletive justice demands that two coats be maintained or returned to their most legitimate possessors (that is, those who have a just title to them), attributive justice could demand to attribute them to two persons in proportion to their sizes, regardless of whether or not they own them. See Hugo Grotius, ibp i.1.7-8, pp. 53–54. See also Tully, A Discourse on Property, pp. 83–84. 34 Hugo Grotius, ibp ii.2.6.4, p. 23. 35 See Knud Haakonssen, ‘Hugo Grotius and the History of Political Thought’, Political Theory 13 (1985), p. 244 and John Salter, ‘Property and Consent’, Political Theory 29 (2001), p. 551.

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116 Loriaux a matter of right),36 it does not provide any guarantee that each will be able to effectively exercise his right of use (and thereby preserve his existence) either.37 As a revival of the primitive right of use, the right of necessity is closer to a perfect right to take resources without interference from others than to an imperfect right to be provided with the resources we need.38 On the other hand, the right of necessity cannot simply be put on par with a faculty or perfect right either, the reason being that Grotius subjects its legitimate exercise to several conditions beyond that of being in a situation of extreme necessity.39 Firstly, before taking the good of another, the person in need must have tried to escape necessity through legal means; secondly, the person whose goods are taken away may not find herself in a situation of ‘like Necessity’; and thirdly, she must return the good (or the value of the good) as soon as possible. As Pufendorf famously objected, the latter condition is incompatible with the idea of a needy person having a right to take another’s goods as if they were common possession.40 Assuming she has a genuine right to take these goods, why would she be obliged to return them as soon as the state of necessity ceases to exist? We cannot make sense of an obligation to return unless the one from whom the goods were taken away retains some kind of ownership over these goods. Even Grotius recognises that the imposition of an obligation to return things to their legitimate owner is definitive of property rights.41 But he resolves that issue by specifying that the right of necessity is not an ‘absolute’, but a ‘limited’ right, which fails to completely suspend the application of the law of property. In other words, he acknowledges that the

36 But as we have seen, a person can de facto be excluded from the use of things, namely when those things are being used or have been used up by others. 37 Stéphane Chauvier, Justice et droits à l’échelle globale (Paris: Vrin/Ehess, 2006), pp. 150–55. 38 This has led some commentators to describe the Grotian primitive use right as a ‘liberty right’ or a ‘privilege’. See for instance Mancilla, ‘What we own Before Property’, Risse, Global Justice, pp. 89–107, and John Salter, ‘Grotius and Pufendorf on the Right of Neces- sity’, History of Political Thought 26 (2005), pp. 287–88. However, this characterisation may be misleading for this use right implies not only that its bearer has no duty not to perform some action, but also that every other person has a duty to refrain from interfering with that action. Put differently, though not a claim-right to resources, the Grotian primitive use right is nevertheless a claim-right not to be interfered with when using resources. 39 Hugo Grotius, ibp ii.2.7-9, p. 24. 40 See Samuel Pufendorf, Of the Law of Nature and Nations, transl. by Basil Kennett, fourth ed., 8 vols. (London: printed by Wenworth Press, 1729), ii.6, pp. 202–12. See also Alejandra Mancilla, ‘Samuel Pufendorf and the Right of Necessity’, Aporia 3 (2012), 47–64 and John Salter, ‘Grotius and Pufendorf on the Right of Necessity’, History of Political Thought 26 (2005), 285–302. 41 Hugo Grotius, ibp ii.10.1, pp. 109–10.

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Grotius and Kant 117 right of necessity falls short of the requirements of a genuine, perfect right, but according to him, this ‘is sufficient […] to maintain the Laws of natural Equity against the Rigour of the Rights of a Proprietor’.42 The invocation of the concept of ‘natural equity’ also raises the question of the role of conventions in Grotius’s argument. To be sure, Grotius urges us to return to the intention of the first distributors, but insofar as this intention must itself be interpreted in the light of natural equity, it is the latter which ultimately determines how the law of property must be interpreted. In a certain sense, the first distributors could have consented to renounce the primitive use right in a complete and definitive way; but in another, and it is the one on which Grotius insists, they could not have done so. By claiming that ‘[t]here is all the Reason in the World to suppose that they designed to deviate as little as possible from the Rules of natural Equity’, Grotius poses limits to what it is possible, or at least reasonable, for human beings to consent to. Why then insist on a return to the intention of the first distributors rather than simply mobilise the idea of ‘reasonable consent’ or ‘natural equity’? A possible and plausible reason is that returning to the intention of the law informs us on the legal status of an action.43 Grotius distinguishes between two ways in which a law can legitimately be dispensed with: on the basis of an ‘equitable Interpretation’ and on the basis of a mere ‘Relaxation’. In his view, if

42 Hugo Grotius, ibp i.2.9, p. 24. It is striking that when discussing the purpose of property, which can be assumed to inform us on the intention of the first distributors, Grotius fails to refer to considerations of self-preservation or basic needs satisfaction. His account of the introduction of property is instead structured around the notion of ‘equality’: while human beings originally had an equal right of use, their increasing lack of equity and love meant that a just equality was no longer observed, and it is in order to maintain an equality that property was established because it is against nature to benefit at the expense of others (ibp ii.10.2.1, p. 110). This immediately raises doubts as to whether the right of necessity can be derived from the natural right of self-preservation as if the latter would necessarily trump property rights or could never be abandoned. An alternative interpretation would ground the right of necessity in a natural requirement of equality from which men must deviate as little as possible. Dennis Klimchuk has provided an interpretation along these lines. According to him, equity refers to a non-conventional principle of equality that one is obliged to respect in any conventions we adopt and the right of necessity protects equality by preventing proprietors from having unjustifiable control over others’ use of the world. This interpretation leads him to the conclusion that the right of necessity does not suspend, but only limits property rights which remain in force during the state of necessity, and that Pufendorf’s objection does therefore not hold. See Dennis Klimchuk, ‘Grotius on Property and the Right of Necessity’, Journal of the History of Philosophy (forthcoming). 43 John Salter, ‘Grotius and Pufendorf on the Right of Necessity’, pp. 289–93.

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118 Loriaux an action cannot be considered included within the intention of the law from the very beginning — as it is the case in situations of extreme necessity — then this action cannot be considered a crime and cannot therefore be subject to (physical or legal) constraint either. The law simply remains silent. If, by contrast, we presently think to have good reasons not to apply a law to an action that nevertheless appears to have been included within its intention, then this action must be considered a crime and deserves a sanction. It is possible to ‘excuse’ this crime, taking into account the particular circumstances in which it was committed, and to decide not to punish or to moderate the punishment inflicted on its perpetrator. But it is not possible to ‘justify’ this action or to describe it as complying with law. In Grotian jargon, the law still applies, but it is ‘relaxed’.44

Kant: Community of Possession as a Rational Precondition of Property

The idea of original possession in common of the Earth and its resources also plays an important role in Kant’s theory of private property since, as we will see, Kant regards it as ‘provid[ing] a priori the basis on which any private possession is possible’.45 Unlike Grotius, however, Kant does not conceive of this community of possession as being related to any right of necessity. In fact, he rejects the very idea of a right of necessity as being an ‘absurdity’46 because of the close link he establishes between right and the authorisation to use coercion.47 As he explains, the rightness of an action is a function of its capacity to coexist with the freedom of each in accordance with a universal law. This is the very substance of his famous ‘Universal principle of right’48 since, conversely, a wrong action can be defined as an obstacle to freedom in accordance with a universal law, any use of coercion that poses an obstacle to this obstacle to freedom (and hence to a wrong action) must be considered consistent with freedom and thus right. As a result, saying that a person in need has the right

44 Hugo Grotius, ibp ii.20.27, pp. 230–31. 45 Immanuel Kant, dr 6:251, p. 405. 46 Immanuel Kant, ‘On the common saying: That may be correct in theory, but it is of no use in practice’ [ocs], in: Practical Philosophy, ed. by Gregor, 8:300, p. 299. 47 Immanuel Kant, dr 6:230–233, pp. 386–90. 48 Kant formulates this principle as follows: ‘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’ (dr 6:230, p. 387).

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Grotius and Kant 119 to take from a shopkeeper the goods she needs in order to survive amounts to saying that the shopkeeper can be forced to give her those goods even if he did not cause her any wrong. Yet, the use of force against an innocent is an obstacle to freedom in accordance with a universal law and must therefore be considered wrong, no more and no less than an intentional transgression or a crime. Therefore, a doctrine of right that would recognise the existence of a right of necessity would contradict itself since it would entail the recognition of a right to act in a way that is wrong and against which force could be rightfully used. Kant adds that if there is often confusion as to the existence or not of a right of necessity — he talks in this context of an ‘ambiguous’ right or a right ‘in a wider sense’49 —, it is because the action of saving one’s life by using force against an innocent is ‘unpunishable’ before a court. No positive law could provide incentives not to perform that action because no legal sanction could be more frightening or threatening than the imminent loss of one’s own life.50 Put differently, positive law is unable to enforce the prohibition to use force against an innocent in cases where that use of force is the only way for a person to preserve her life. But this unpunishability does not mean that the use of force against an innocent is in ‘conformity with law’ (gesetzmässig), that it should not be punished or that it enjoys ‘objective impunity’ before reason. Admittedly, Kant discusses the right of necessity by referring to an example that Grotius explicitly refuses to consider as illustrating a legitimate exercise of the right of necessity. This example, which the literature usually associates with the Plank of Carneades, presents a shipwrecked person whose survival requires killing another shipwrecked person by shoving her off the plank to which she is clinging. As already pointed out, Grotius denies that the right of necessity could be invoked in a situation of ‘like Necessity’. The reason he of- fers is that in such a situation the position of the first possessor must be pre- ferred because justice demands to refrain from what is already being used by another. But it must be noted that Kant’s objection also applies to situations where there is no ‘like Necessity’ as well as to situations where a needy person

49 The reason the right of necessity is called ‘ambiguous’ is not that it is ‘limited’ (by an obligation to return what we have taken, for instance), but that a right is in question and no one can be found to render a decision. Interestingly, the second ambiguous right that Kant discusses is equity. Unlike Grotius, Kant does not establish any derivational link between necessity and equity, but regards them as the two sides of a same confusion between the objective and the subjective basis of exercising a right. While in cases of necessity a court tolerates an action that cannot be deemed right by reason, cases of equity involve actions we have reason to consider right but for which no confirmation can be found before a court (dr 6:233–6, pp. 289–392). 50 Immanuel Kant, dr 6:235–6, pp. 391–92.

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120 Loriaux considers taking not the life but only the goods of an innocent in order to save her own life.51 Thus, for Kant, if a person has not had the means to feed herself for several days and if, in order to survive, she takes away the goods that belong to a wealthy shopkeeper who did not cause her any wrong, she poses an obstacle to freedom in accordance with a universal law and commits a crime, in this case a theft, even if this crime is ‘unpunishable’ in the sense that no legal sanction could ever have the expected deterrent effect.52 We have seen how Grotius deduces a right of necessity from the intention of the first distributors to depart as little as possible from natural equity. What about Kant? Is it not completely immoral or even contrary to the very concept of right to require property laws to apply even when a person’s survival is at stake? How does Kant’s legal theory position itself with regard to the status of the Earth and its resources, the purpose of property, or simply with regard to the idea of a natural right to preserve one’s existence? To begin with the latter point, Kant shares with Grotius the idea that human beings have a moral duty to preserve their existence and that this duty is not absolute but conditional on their respecting the rights of others.53 But while Grotius insists on the idea that necessity renders property rights (and more

51 It could be argued that cases of necessity where one needs only to take the goods of another in order to survive deserve a more lenient treatment than cases where one needs to kill another. But Kant’s doctrine of right is concerned only with the form of the relation between choices, and more specifically, with the conditions under which the choice of the one can coexist with the choice of the other according to a universal law, and from that perspective, both kinds of cases are similarly to be prohibited as they both involve encroaching on what belongs to another and hence doing wrong. 52 This does not mean that nothing should be done for the poor. Kant acknowledges the existence of a duty to promote according to one’s means the well-being of others in need, and observes that the inequalities of wealth that make some need such beneficence and others able to practice it often result from ‘the injustice of the government’ (Immanuel Kant, ‘Doctrine of Virtue’ [dv], in: Practical Philosophy, ed. by M. Gregor (Cambridge: Cambridge University Press, 1996), 6:453–454, pp. 572–73). However, he is reluctant to conceive of the satisfaction of others’ basic needs in terms of an enforceable duty of right. He points out that right has to do with the relation of one’s choice to others’ choices, not to their needs (which he treats as mere wishes) (dr 6:230, p. 287). He also deems well- being unfit to become a universally valid principle of legislation because its meaning var- ies from one person to another and sometimes even from one moment to another. In his view, public right is concerned only with the lawful constitution which secures everyone’s freedom, and laws directed toward the well-being of the people can be promulgated only as a means for securing a rightful condition or for maintaining society as a whole (ocs 8:298, pp. 297–98; dr 6:326, p. 468). 53 Immanuel Kant, ocs 8:301, p. 299.

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Grotius and Kant 121 broadly, positive law) silent, Kant insists on the idea that necessity cannot make what is wrong (unrecht) conform with law (gesetzmässig). Natural right (Naturrecht or jus naturae), which Kant understands as the right that can be conceived of a priori by the reason of each man and that determines the universal criterion of the just and the unjust, poses limits to the kinds of laws that can be promulgated.54 If ‘Necessity has no law’, it is for Grotius because it has been excepted from positive law, but for Kant because it cannot be enforced by positive law. In Kant’s view, property laws are not suspended: they still apply and this is why a person who takes from another, without his consent, what she needs in order to survive infringes on another’s rights and therefore commits a crime. Yet, the idea that a law may sometimes be suspended is not completely absent from Kant’s political theory. This is witnessed by Kant’s recognition of ‘permissive laws (leges permissivae) of pure reason’, the main feature of which is to permit the temporary non-implementation of moral laws of prohibition. Importantly, Kant emphasises that there can be no question of permitting ‘exceptions to the rule of right’.55 More particularly, there can be no question of first formulating an absolute moral prohibition and then identifying, in a contingent way, circumstances in which it would be permitted to deviate from this prohibition. Permissive laws rather refer to laws of prohibition which comprise within their very formula, as a ‘limiting condition’, a permission not to deviate from, but rather to postpone putting a moral prohibition into effect. More precisely, they authorise the temporary non-implementation of a moral prohibition and hence the temporary existence of wrongs when the circumstances are such that an immediate putting into effect of this prohibition would counteract its purpose and until the moment circumstances become favourable to its implementation.56 By way of illustration, Kant argues that although the second preliminary article for perpetual peace prohibits the acquisition of a state by another state through inheritance, exchange, purchase or donation, this prohibitive law is permissive in the sense that it authorises postponing the restoration of the freedom of certain states until a favourable occasion obtains. What it does not

54 Immanuel Kant, dr 6:229, p. 386; dr 6:256, p. 409; dr 6:296–7, p. 443. 55 Immanuel Kant, ‘Toward perpetual peace’ [pp], in: Practical Philosophy, ed. by Gregor, 8:347, p. 320. As Kant puts it in ‘On a Supposed Right to Lie from Philanthropy’, ‘exceptions would nullify the universality on account of which alone [practical principles of right] are called principles’ (Immanuel Kant, ‘On a Supposed Right to Lie from Philanthropy’, in: Practical Philosophy, ed. by Gregor, 8:430, p. 615). 56 Immanuel Kant, pp 8:347–348, pp. 320–21.

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122 Loriaux permit is the eternal postponement of this restoration or a non-restoration. Another example relates to the nature of political regimes. Although politi- cians have the duty to correct any imperfection they discover in the constitution of the state ‘in conformity with natural right, which stands before us as a model in the idea of reason’57 they are temporarily permitted to postpone this correction — and hence to ‘allow a situation of public right afflicted with injustice to continue’ — if they can reasonably predict that an immediate in- stitutional change would be premature in the sense of compromising the very realisation of a just or republican constitution.58 The distinction that Kant establishes between a permission that is com- prised within the formula of the law from the very beginning (i.e., a ‘limiting condition’) and a permission that is added to the law afterwards (i.e., an ‘exception’) recalls the distinction found in Grotius between two reasons for a law to be dispensed with, namely an equitable interpretation and a mere relaxation of the law. But Kant’s permissive laws differ from Grotius’s procedural requirement of equity on several points. To begin with, as the above exam- ples illustrate, permissive laws may imply the toleration rather than the non- application of positive laws. Whereas in Grotius considerations of equity can justify the non-application of positive laws (such as in a situation of extreme necessity), Kantian permissive laws can allow positive laws to remain in force in spite of their unjust character, which suggests that it is natural right itself which temporarily withdraws behind positive laws. Secondly, Kantian ‘limiting conditions’ are not deduced from the intention of the authors of the law, but seem rather to be a matter of political wisdom or prudence. Natural right temporarily withdraws behind positive laws, but it does so for its own sake, because the immediate application of certain of its laws would undermine their realisation and ultimately the establishment of a rightful condition.59 Fi- nally, Kantian permissive laws could hardly justify the existence of a right of necessity since the permission to postpone the putting into effect of a moral law of prohibition is justified by its contribution to the realisation of natural right. Yet, permitting the commission of an act of necessity cannot possibly be said to contribute to the realisation of natural right as Kant understands it.

57 Immanuel Kant, pp 8:372, p. 340. 58 Ibid. 8:373, p. 341. 59 See Reinhard Brandt, ‘Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kant’s Rechtslehre’, in: Rechtsphilosophie der Aufklärung, ed. by R. Brandt (Berlin: De Gruyter, 1982), pp. 245–47, Katrin Flikschuh, Kant and Modern Political Philosophy (Cambridge: Cambridge University Press, 2004), pp. 134–39, and Lea Ypi, ‘A Permissive Theory of Ter- ritorial Rights’, European journal of Philosophy 22 (2014), pp. 289–90.

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Grotius and Kant 123

Let us recall in this respect that it is the Universal principle of right, and hence natural right itself, which rules out the existence of a right of necessity on the ground that it contradicts the coexistence of external freedoms in accordance with a universal law.60 Particularly relevant for the issue at hand is that permissive laws also play an important role in Kant’s account of property rights. Similarly to Grotius, Kant recognises that human beings in the state of nature have a right to use the Earth and its resources, provided they do not encroach on what belongs to another. But instead of deducing this right from a divine gift or from natural principles of self-preservation and sociability, he includes it completely in what he takes to be the only ‘innate’ right or right that belongs to everyone by nature, namely the right to freedom as ‘independence from being constrained by another’s choice’.61 Although distinct from property or ‘external’ rights, which must always be acquired, the innate or ‘internal’ right to freedom can never be completely separated from external objects because, as a being made of flesh and bones, a human being cannot avoid occupying a space, breathing oxygen or feeding his body. And from the moment his use or physical possession of an external object enjoys chronological priority, it accords with the law of freedom that those who want to take that object away from him without his consent diminish his freedom unilaterally and therefore wrong him.62 But importantly, Kant makes clear that this wrong involves no property right or ‘external mine’.63 The physical possession of an external object is nothing more than an internal right: strictly speaking, it concerns only my possession of myself, not the possession of an object external to me. It will give way to an external mine or to a property right only when I will be related to that object in such a way that the use that another makes of it without my consent wrongs me even though I am not physically related to it. In other words, my relation to

60 It is worth noting, however, that in previous texts Kant claimed that in exceptional circumstances a ‘permissive law’ could arise from natural right and authorise an act otherwise forbidden by civil law. This is the case in his Vorarbeiten zur Tugendlehre, where he suggests that a theft committed by a starving man is not only ‘unpunishable’ but also permitted by natural right, and in Vigilantius’s Lecture Notes (1793–4), where two shipwrecked persons struggling for a plank are permitted to use force against each other provided only none of them is already in possession of the plank. See in this respect Brian Tierney, ‘Kant on Property: the Problem of Permissive Law’, Journal of the History of Ideas 62 (2001), pp. 309–10. These texts stand in stark contrast with the passage of the later Doc- trine of Right (1797) in which Kant explicitly rejects the idea of a right of necessity. 61 Immanuel Kant, dr 6:237, p. 393. 62 Ibid. 6:263, p. 415. 63 Ibid. 6:248, p. 402; 6:250, p. 404; 6:254, p. 408.

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124 Loriaux that object will have to be nonphysical or intelligible and this is why Kant talks of a property right as an intelligible or a juridical possession. When it comes to explicating the passage from a physical to an intelligible possession and hence the introduction of property, Kant indicates that in order for an external object to become originally mine, an act of the will is necessary. I must take this object into my possession and I must declare my will to henceforth exclude all others from its use. But since this act of the will can originally only be unilateral, it cannot impose on others an obligation that they would otherwise not have, namely an obligation to refrain from using an object that no one is currently using. Unilaterally imposing this obligation would amount to unilaterally limiting the freedom of others and therefore to contradicting the idea of external freedoms coexisting in accordance with universal laws. Property rights are possible only if there is the guarantee that everyone is subject to the same obligation he imposes on others (i.e., a guarantee of reci- procity) and therefore only if they proceed from a will that is at the same time omnilateral and powerful, that is, from a civil condition.64 In a seemingly paradoxical way, Kant adds however that although we cannot unilaterally impose on others an obligation corresponding to an external right, we must nevertheless be able to do so. More particularly, he introduces here again a ‘permissive law (lex permissiva) of practical reason’, which gives us the authorisation to impose on all others an obligation to refrain from using certain objects of our choice, because we were the first to take them into possession.65 This law finds its justification in the idea that in order for a person to be able to set and to pursue her own ends, and hence to exercise her external freedom, it is not enough for her to possess a right to use all external objects that do not already belong to others (i.e., a Grotian primitive use right); she must also be authorised to exclude others from the use of external objects that she is not physically possessing and she must be authorised to do so before an omnilateral and powerful will arises and validates her property rights in a conclusive way. Or as Kant also puts it: even before entering a civil condition, it must be possible to have ‘provisional’ property rights. In this context too, then, the idea of permissive law refers to special circumstances in which the implementation of a prohibition may be temporarily postponed, in this case the prohibition to unilaterally limit the freedom of others or to violate the Universal principle of right. But the reason for this postponement is no longer that an immediate putting into effect of the Universal principle of right would counteract its realisation, but rather that property

64 Ibid. 6:255–6, p. 409. 65 Ibid. 6:247, p. 406.

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Grotius and Kant 125 rights are necessary for the exercise of individual freedom. I must be authorised to unilaterally impose on others an obligation to refrain from the objects I want to become originally mine because without property rights, my innate right to freedom would be deprived of the use of its choice. And that property proves necessary for the exercise of individual freedom also means, for Kant, that its introduction (and with it the establishment of a civil condition) is a moral duty, not simply a way to cope with the inconveniences that the search for a more commodious life or an increase in human population bring with them. It is also important to note that even if this permissive law does not have the realisation of the Universal principle of right as its end, it is coupled with an obligation not to lose sight of this end.66 As Kant puts it, an external possession can be provisionally rightful only if it is a ‘possession in anticipation and preparation for the civil condition’ and thus only if it ‘accords with the possibility of such a condition’.67 Even more important, the proper appreciation of this proviso brings us back to the idea of ‘original possession in common (communio possessionis originaria)’ of the Earth and its resources.68 Unlike Grotius, Kant does not conceive of this community of possession as being an empirical concept or as referring to a primitive state that really existed at some point in history and that preceded the institution of property (i.e., a primitive community of possession or communio primaeva). The original character of the community of possession instead refers to an ‘idea that has objective (rightfully practical) reality’, a ‘practical rational concept’, which comprises ‘the only condition under which it is possible for me to exclude every other possessor from the private use of a thing’.69 Moreover, Kant does not relate the common character of the original possession of the Earth and its resources to the idea that these originally belonged to no one in particular, but attributes it to the fact that the Earth has a spherical and hence a finite surface and that, as a result, its inhabitants cannot disperse indefinitely but are inevitably led to come into community with each other.70 The possession of the Earth is common because each appropriation of natural resources inevitably affects the freedom of all those who are henceforth excluded from the use of these resources.

66 Ibid. 6:257, p. 410. 67 Ibid. 6:257, p. 410. 68 Ibid. 6:262, p. 415. 69 Ibid. 6:251, p. 405; 6:261, p. 413. 70 Ibid. 6:262, pp. 414–15.

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126 Loriaux

As Kant repeatedly points out, I cannot be wronged by the use that another makes of an object without my consent unless I am already in possession of this object.71 While this claim can be easily understood when applied to a first physical possession, complications occur when possession is envisaged from an intelligible point of view: how indeed can a person who is not in physical possession of a thing nevertheless be wronged by another person who is, for her part, well in physical possession of that thing? It is to this question that the Kantian idea of original possession in common of the Earth aims to provide an answer. It brings into relief the fact that property rights cannot be conceptu- alised in terms of a link between a person and an external object. This departs from Grotius’s suggestion at some places that there is no clear-cut conceptual distinction between use right and property right. On the one hand, a good that is used up by being used by a person is said to so appertain to her that ‘a certain propriety appear[s] not severed from use’; on the other hand, a physical possession is said to give way to a property right by being ‘retained in the mind’ of all the parties involved, that is, by all parties coming to behave toward a certain good as if it became part of its first user.72 For Kant, understanding property rights essentially requires elucidating the intelligible link that exists between a person and all other inhabitants of the planet on whom she imposes an obligation to refrain, and the idea of original possession in common of the Earth expresses the idea that a right to an external object must be a right against all other persons considered as its possessors. If we do not presuppose this possession in common, then it is inconceivable how I can rightfully exclude others from the use of an object that I am not using and hence inconceivable how I can be wronged by the use others make of that object. As we have seen, the only way I can impose on all others an obligation to refrain from using an external object is through an omnilateral and powerful will. What the idea of original possession in common of the Earth highlights is that this will cannot be conceived but as the ‘united choice of all who possess it in common’.73 I cannot exclude others unless they also exclude themselves, otherwise my exclusion remains unilateral. In order to be consistent with the Universal principle of right, my intelligible possession of an external object requires the self-exclusion of all those I can affect by my choice and so presupposes that originally everything belongs to everyone.

71 Ibid. 6:247, pp. 401–02; 6:249, p. 403; 6:261, p. 413. 72 Hugo Grotius, ml v, p. 26. See also Marcelo Araujo, ‘Hugo Grotius, Contractualism, and the Concept of Private Property: an Institutionalist Interpretation’, History of Philosophy Quarterly 26 (2009), pp. 357–60. 73 Immanuel Kant, dr 6:261, p. 413.

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Grotius and Kant 127

These clarifications help understand Kant’s claim that the primitive community of possession (communio primaeva) is a mere fiction because it ‘would have to be one that was instituted and arose from a contract by which everyone gave up private possessions and, by uniting his possessions with those of everyone else, transformed them into a collective possession [Gesammtbesitz]; and history would have to give us proof of such a contract’.74 Despite appearances, this criticism is not specifically addressed to positive conceptions of the community of goods. Kant does not, for instance, simply tell us that any empirical collective possession of a piece of land presupposes an agreement between individuals to aggregate their private possessions and can therefore not be truly ‘original’. His point is rather that whatever the way in which we envis- age the primitive status of the Earth — as belonging to everyone in an equal way or as belonging to no one in particular and open to everyone’s use — we must presuppose that it is originally the possession in common of all those who determine one another’s use of it.75 It is not possible to conceive of the Earth as free ‘by nature’ without again conceiving property as a relationship between a person and a thing. Insofar as any empirical determination of the use of the Earth imposes certain obligations, it requires a contract and hence presupposes a possession in common.

Concluding Remarks

The idea of original common possession of the Earth has a dual critical potential. By bringing us back to a viewpoint that is (historically or logically) prior to the institution of property and territorial rights, it helps us gain a better grasp of the point and specificity of these rights. And by implying that all human beings are originally in a situation of equality with respect to the Earth and its resources, it also provides a standard to assess the moral acceptability of existing distributions of property and territorial rights. But as this paper has shown on the basis of a comparative study of Grotius and Kant, this idea can be interpreted in different ways and can be brought to play quite different normative roles. Grotius proposes a historical account. According to him, the Earth and its resources were originally held in common by all human beings and the institution of private property was gradually introduced in order to address some of the difficulties caused by the search for a more commodious life and the

74 Ibid. 6:251, p. 405. 75 Ibid. 6:250, p. 404.

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128 Loriaux increase in human population. In this process, the first distributors could however not have intended to sacrifice natural equity. On the contrary, they must be supposed to have excluded necessity from the scope of positive laws, and hence to have imposed certain limits on property rights. This explains why a person in a situation of necessity is not bound to respect the property rights that are otherwise in force, but has the right to take and to use the goods of another as if they had remained common. Her right of necessity is however also limited as its legitimate exercise is subject to certain conditions: it may be exercised only in the last resort, it may not be exercised against a person equally in need, and its exercise must be accompanied by a duty to return what was taken. While these conditions allow striking a balance between natural equity and property rights, they also make the legal status of the right of necessity somewhat ambiguous. It is precisely this kind of ambiguity that leads Kant to deny the existence of a right of necessity. According to him, a doctrine of right cannot acknowledge a right of necessity without contradicting itself because this would amount to acknowledging a right to act in a way that is wrong. If necessity knows no law, it is only because acts of necessity cannot be punished, not because they should not be punished. Nevertheless, Kant too embraces both the idea that the application of a law can sometimes be suspended and the idea that the Earth and its resources are originally held in common by all human beings. Thus, a person is provisionally authorised to violate the Universal principle of right by unilaterally imposing on others an obligation to refrain from the object she wants to be ‘hers’. The reason is that property rights are necessary for the exercise of individual freedom (and their introduction therefore a moral duty rather than a mere response to contingent problems). But this provisional authorisation is also accompanied by a duty, namely the duty to take the possibility of a civil condition as one’s focal point. Only in the presence of a powerful and omnilateral will can my exclusion of others also be a self-exclusion by others, and a conclusive property right arise. Given the Earth’s spherical shape, this self-exclusion must also extend to all the inhabitants of the planet. Yet, in order for them to be able to exclude themselves from a given external object they must somehow already possess it. It is here that the idea of original common possession of the Earth comes into the picture — no longer as a historical but as a practical idea, and more precisely, as an a priori condition for the possibility of property. On Kant’s account, no real contract is required ‘before’ being provisionally authorised to exclude others from the use of an object. But the condition to be met in order for our provisional property right to remain rightful is to never lose sight of the idea of a contract between all inhabitants of the planet and to relentlessly work toward its realisation.

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