grotiana 38 (2017) 106-128 GROTIAN A brill.com/grot Grotius and Kant on Original Community of Goods and Property 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 understand- ing 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. © koninklijke brill nv, leiden, 2017 | doi 10.1163/18760759-03800007Downloaded from Brill.com09/26/2021 08:18:51AM via free access <UN> 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 posses- sion 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 cer- tain 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 ra- tional way, as an a priori condition for the possibility of property. Although he grotiana 38 (2017) 106-128 Downloaded from Brill.com09/26/2021 08:18:51AM via free access <UN> 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 permis- sive 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 con- cern.3 Accordingly, their different ways of conceiving the original possession in common of the Earth can be expected to also reveal different ways of theoris- ing territorial and environmental issues.4 This paper is divided into two parts. The first part is devoted to Grotius’s ac- count of why and how the community of possession in which human beings originally found themselves was progressively abandoned in favour of prop- erty 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 situa- tions 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. grotianaDownloaded from 38 Brill.com09/26/2021 (2017) 106-128 08:18:51AM via free access <UN> Grotius and Kant 109 plays a crucial role in, his account of property. Clarification of this role ulti- mately 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 condi- tion 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 es- tablished 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.