An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
Hegel develops the metaphysical theory further by getting rid of the
idea of occupation and treating property as a realization of the idea
of liberty. Property, he says, "makes objective my personal,
individual will." In order to reach the complete liberty involved in
the idea of liberty, one must give his liberty an external sphere.
Hence a person has a right to direct his will upon an external object
and an object on which it is so directed becomes his. It is not an end
in itself; it gets its whole rational significance from his will. Thus
when one appropriates a thing, fundamentally he manifests the majesty
of his will by demonstrating that external objects that have no wills
are not self-sufficient and are not ends in themselves. It follows
that the demand for equality in the division of the soil and in other
forms of wealth is superficial. For, he argues, differences of wealth
are due to accidents of external nature that give to what A has
impressed with his will greater value than to what B has impressed
with his, and to the infinite diversity of individual mind and
character that leads A to attach his will to this and B to attach his
will to that. Men are equal as persons. With respect to the principle
of possession they stand alike. Everyone must have property of some
sort in order to be free. Beyond this, "among persons differently
endowed inequality must result and equality would be wrong."
Nineteenth-century metaphysical theories of property carry out these
ideas or develop this method. And it is to be noted that they are all
open to attack from the standpoint of the theory of _res extra
commercium_. Thus Hegel's theory comes to this: Personality involves
exercise of the will with respect to things. When one has exercised
his will with respect to a thing and so has acquired a power of
control over it, other wills are excluded from this thing and are to
be directed toward objects with which other personalities have not
been so identified. So long as there are vacant lands to occupy,
undeveloped regions awaiting the pioneer, unexploited natural
resources awaiting the prospector--in short, so long as there are
enough physical objects in reach, if one may so put it, to go
round--this would be consistent with the nineteenth-century theory of
justice. But when, as at the end of the nineteenth century, the world
becomes crowded and its natural resources have been appropriated and
exploited, so that there is a defect in material nature whereby such
exercise of the will by some leaves no objects upon which the wills of
others may be exerted, or a deficiency such as to prevent any
substantial exertion of the will, it is difficult to see how Hegel's
argument may be reconciled with the argument put behind the conception
of _res extra commercium_. Miller, a Scotch Hegelian, seeks to meet
this difficulty. He says that beyond what is needed for the natural
existence and development of the person, property "can only be held as
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