An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
acquisition, distinguishing an original and primary from a derived
acquisition. Nothing is originally mine without a juridical act. The
elements of this legal transaction of original acquisition are three:
(1) "Prehension" of an object which belongs to no one; (2) an act of
the free will interdicting all others from using it as theirs; (3)
appropriation as a permanent acquisition, receiving a lawmaking force
from the principle of reconciling wills according to a universal law,
whereby all others are obliged to respect and act in conformity to the
will of the appropriator with respect to the thing appropriated. Kant
then proceeds to work out a theory of derivative acquisition by
transfer or alienation, by delivery or by contract, as a legal giving
effect to the individual will by universal rules, not incompatible
with a like efficacy in action of all other wills. This metaphysical
version of the Roman theory of occupation is evidently the link
between the eighteenth century and Savigny's aphorism that all
property is founded in adverse possession ripened by prescription.
When Kant's theory is examined it will be found to contain both the
idea of occupation and the idea of compact. Occupation has become a
legal transaction involving a unilateral pact not to disturb others in
respect of their occupation of other things. But the pact does not
derive its efficacy from the inherent moral force of a promise as
such or the nature of man as a moral creature which holds him to
promises. Its efficacy is not found in qualities of promises or of
men, but in a principle of reconciling wills by a universal law, since
that principle requires one who declares his will as to object A to
respect the declaration of his neighbor's will as to object B. On the
other hand, the idea of creation is significantly absent. Writing at
the end of the eighteenth century, in view of the ideas of Rousseau,
who held that the man who first laid out a plot of ground and said,
"This is mine," should have been lynched, and of the interferings with
vested rights in Revolutionary France, Kant was not thinking how those
who had not might claim a greater share in what they produced but how
those who had might claim to hold what they had.
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