An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
Metaphysical theories of property are part of the general movement
that replaced seventeenth-and eighteenth-century theories of natural
rights, founded on the nature of the abstract man or on an assumed
compact, by metaphysical theories. They begin with Kant. He first sets
himself to justify the abstract idea of _a_ law of property--the idea
of a system of "external _meum_ and _tuum_." Here, as everywhere else,
he begins with the inviolability of the individual human personality.
A thing is rightfully mine, he says, when I am so connected with it
that anyone who uses it without my consent does me an injury. But to
justify the law of property we must go beyond cases of possession
where there is an actual physical relation to the object and
interference therewith is an aggression upon personality. The thing
can only be mine for the purposes of a legal system of _meum_ and
_tuum_ where I will be wronged by another's use of it when it is not
actually in my possession. This raises in the first instance the
question "How is a merely juridical or rational [as distinguished from
a purely physical] possession possible?" He answers the question by a
metaphysical version of the occupation theory of the eighteenth
century. Conceding that the idea of a primitive community of things is
a fiction, the idea of a logically original community of the soil and
of the things upon it, he says, has objective reality and practical
juridical reality. Otherwise mere objects of the exercise of the will,
exempted therefrom by operation of law, would be raised to the dignity
of free-willing subjects, although they have no subjective claim to be
respected. Thus the first possessor founds upon a common innate right
of taking possession, and to disturb him is a wrong. The first taking
of possession has "a title of right" behind it in the principle of the
original common claim to possession. It results that this taker
obtains a control "realized by the understanding and independent of
relations of space," and he or those who derive from him may possess a
parcel of land although remote from it physically. Such a possession
is only possible in a state of civil society. In civil society, a
declaration by word or act that an external thing is mine and making
it an object of the exercise of my will is "a juridical act." It
involves a declaration that others are under a duty of abstaining from
the use of the object. It also involves an admission that I am bound
in turn toward all others with respect to the objects they have made
"externally theirs." For we are brought to the fundamental principle
of justice that requires each to regulate his conduct by a universal
rule that will give like effect to the will of others. This is
guaranteed by the legal order in civil society and gives us the regime
of external mine and thine. Having thus worked out a theory of _meum_
and _tuum_ as legal institutions, Kant turns to a theory of
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