Sage Kant and Original Acquisiton

8/13/2019 Sage Kant and Original Acquisiton

1/19

Citation: 25 Can. J. L. & Jurisprudence 119 2012

Content downloaded/printed from

HeinOnline (http://heinonline.org)

Mon May 13 13:54:04 2013

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license

agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do?

&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0841-8209


2/19

Original Acquisition and Unilateralism:Kant Hegel and Corrective JusticeN W SageFor Kant, private law is a system of equal freedom. No single person acting alone-unilaterally-can alter the scope of another s freedom. That would prefer oneperson s freedom over another s.Corrective justice requires that the explanation for a private law obligation bebilateral, rather than unilateral, in form: the explanation must show equal con-cern for both plaintiff and defendant.Here is an apparent problem about the original acquisition of property. It seemsto be unilateral. A person originally acquires property in an unowned object bytaking control of it. That action subjects every other person to new duties and dis-abilities: others must now not interfere with the object and can no longer acquireit themselves. That would be trespass or conversion. So it seems that the acquirerhas changed the scope of others freedom. And the explanation for others ob-ligations seems to turn solely on the acquirer s action or choice. Thus, originalacquisition appears problematically unilateral from the substantive standpoint ofKantian freedom and also from the formal standpoint of corrective justice.This problem is not new. On one interpretation, it troubled Kant himself.Recently, theorists of private law have re-encountered the problem and have ad-opted what they take to be Kant s solution. On this approach, Kant solves theunilateralism problem by mandating a civil condition of public legal institu-tions, in which the omnilateral will of everyone legitimizes original acquisition.But the civil condition does nothing to fix the supposed unilateralism of orig-inal acquisition. In any event, the solution to the problem of unilateralism ismuch simpler. The solution is to see that there is no problem in the first place.Original acquisition is not unilateral in any sense that is condemned by the logicof Kantian freedom or corrective justice.Part I of this article outlines an interpretation of Kant s theory of property, inwhich the problem of unilateralism is said to arise. Part II scrutinizes the civ-il condition solution, as construed by Ernest Weinrib and by Arthur Ripstein.Neither account solves the alleged problem of unilateralism. Indeed, given thelimitations of Kant s normative system, the unilateralism problem, if it is trulya problem, cannot be solved in Kantian terms. Part III briefly considers Hegel srival account of original acquisition. Hegel expressed no concern about unilater-alism. His account and Kantians criticisms of it point to the real solution to theThanks to Peter Benson, Ernest Weinrib, Jacob Weinrib, Sinziana Tugulea, and Zoe Sinel for com-ments on previous drafts.

1. It has arisen in various forms in a number of traditions of legal and political philosophy. See,e.g., Jeremy Waldron, The Right t rivate roperty Oxford: Clarendon Press, 1988) at 150,176, 266-71, 329 (discussing Pufendorf, Locke, Kant, and Marx . The present article focuseson the problem in the context of Kant and Hegel s legal philosophy.

Canadian Journal of Law and Jurisprudence Vol XXV, No.1 January 2012)

HeinOnline -- 25 Can. J. L. & Jurisprudence 119 2012


3/19

Sage

unilateralism problem: recognizing it is not a problem. That this is so is shown inPart IV

I ant nd original acquisitionThe unilateralism problem in the Kantian context arises out of the discussionof 'private right' in the Rechtslehre. Kant's discussion is abstruse, but there isnow a common interpretation in the North American legal literature.' On thisinterpretation, Kant has trouble explaining how property rights can come to existbecause original acquisition is problematically unilateral; his solution is to posita duty on all persons to enter a 'civil condition' of public legal institutions, inwhich an 'omnilateral will' legitimizes original acquisition.

Kant's theory ofprivate right proceeds from his universal principle of right : Any action is right if it can coexist with everyone's freedom in accordancewith a universal law .4 Kant reformulates this principle as the innate right tofreedom: Freedom (independence from being constrained by another's choice),insofar as it can coexist with the freedom of every other in accordance witha universal law, is the only ight belonging to every man by virtue of hishumanity. 5

Kant's system of private right is thus built upon a particular conception offreedom. For Kant, 'freedom' means only that no other person can choose youraction for you. Your action manifests your purposiveness, and according to Kantyou alone can choose how you exercise your purposiveness-no other personcan do so .6There are two things to emphasize about this conception of freedom. First, itis thoroughly 'relational': freedom is conceived as a relation between persons.If you were the only person in the world it would make no sense to talk of youhaving this kind of freedom. And your freedom is not implicated if, for example,you are struck by lightning. Only another person can violate your freedom. Moreprecisely, only another person's external actions or choices can violate yourfreedom, because another's purely internal thoughts, no matter how malicious,cannot determine your action.7 Second, this conception of freedom is strictly

2. Immanuel Kant, Doctrine of Right in The Metaphysics of Morals in PracticalPhilosophy,translated by Mary Gregor (Cambridge: Cambridge University Press, 1996).3. Arthur Ripstein, Force and Freedom Kants Legal and PoliticalPhilosophy (Cambridge,MA: Harvard University Press, 2009); Jacob Weinrib, What Can Kant Teach Us about

Legal Classification? (2010) 23 Can JL Jur 203; Ernest J Weinrib, Poverty and Propertyin Kant's System of Rights (2003) 78 Notre Dame L Rev 795. See also B Sharon Byrd Joachim Hruschka, The Natural Law Duty To Recognize Private Property Ownership:Kant's Theory of Property in his Doctrineof Right (2006) 56 U Toronto L 217. (Byrd andHruschka's overall account diverges from the others in many ways.)

On this interpretation Kant makes serious errors. It is possible that he may be re-interpretedto avoid them, but that project is not taken on here.4. Kant, supranote 2 at 6:230.5 Ibidat 6:237. On the interpretation being considered here, innate right re-presents aspects ofthe universal principle without adding to it. See Weinrib, Poverty and Property , supranote 3

at 803; Ripstein, supra note 3 at 35-36; Jacob Weinrib, supranote 3 at 211.6. See, e.g., Ripstein, supra note 3 at 30-56.7. Kant, supra note 2 at 6:230-31; Ripstein, supra note 3 at 36; Jacob Weinrib, supra note 3 at

210 11



4/19

Original Acquisition and Unilateralism

negative. No other person must help you achieve your aims or desires. Hence,Kant explains, your wish for something or even your need for it binds no on eelse.8 Likewise, you have no right against other individuals to any particular context in which to act.9 For example, you have no right to a material situation thatwould make the exercise of your freedom more meaningful. You could be 'free'in an environment that forced you to devote your time to gathering food. So longas no other person chooses your action you have all you are entitled to.

This austere conception of freedom carries the justificatory burden of[Kant's] entire argument . It generates the entitlements that individuals canrightfully assert against each other-i.e., the substance of private law.

Kantian freedom entails an entitlement to bodily integrity. Your body is ani-mated by your purposiveness-you act through it. So no other person can choosewhat you do with your body. Implicit in the right to bodily integrity is the rightto occupy the space your body is taking up, and also certain rights with respectto physical objects that your body is touching 12- for example, if you grasp anapple another person cannot pry it from your fingers. 3

But can you have a right to exclude others from an object you are not currentlytouching-that is, a property right? To answer this Kant adduces the 'postulate ofprivate right. 4 Kant reasons that objects, which are not purposive, cannot haveany right to freedom of their own. So it must be possible for persons to extendtheir purposiveness over objects, acquiring property in them. However, that pos-sibility is subject to a crucial qualification: a person's acquisition of propertymust not interfere with the freedom of any other person.

On the interpretation of Kant under consideration, this qualification-thatproperty must be consistent with everyone's equal freedom-makes it difficult toexplain how property rights could ever come to exist. A property right is originallyacquired when an individual takes control of an object. 5 That act means all otherpersons are excluded from the object. They can no longer use it and they may beliable for damaging it. The original acquisition ofproperty therefore seems to alterothers' normative situation ' 6 by imposing a new obligation , 7 constraint '8 or duty '19 upon them. One person's unilateral act of acquisition therefore appears to

8. Kant, supranote 2 at 6:230; Ripstein, supranote 3 at 40-50.9. Ibid at 48-50.10. Ibid at 14.

11 See, e.g., ibid at 40-42; Weinrib, Poverty and Property , supra note 3 at 804 and n 41. AsWeinrib notes, Kant does not explicitly make this point.12. Weinrib, Poverty and Property , supra note 3 at 804-05; Ripstein, supra note 3 at 60.13. Kant, supranote 2 at 6:250.14. Ibid at 6:250-53. Kant (in translation) initially calls this the [p]ostulate of practical reason

with regard to rights. At 6:250. The less ungainly postulate o private right is employedat times by Ripstein, supra note 3 at 196, and Jacob Weinrib, supra note 3 at 214. Byrd andHruschka call it the postulate of private law , supra note 3 at 247.

15. Kant, supra note 2 at 6:263; Ripstein, supranote 3 at 104-05. Cf ierson Post 3 Cai 175 (NYSup Ct, 1805 .16. See, e.g., Ripstein, supranote at 90, 151-55.17. bid at 153; Jacob Weinrib, supra note 3 at 229; Weinrib, Poverty and Property , supra note

3 at 807-08; Byrd & Hruschka, supra note 3 at 261-62.18. See, e.g., Ripstein, supra note 3 at 90 .19. See, e.g., Jacob Weinrib, supra note 3 at 229.



5/19

Sage

change the scope of others' freedom . For Kant that is impossible.This is the problem of unilateralism. The problem may also be restated in a

way that abstracts from Kant's substantive explanation of private law, based onhis conception of freedom, and invokes instead the purely formal framework ofcorrective justice. Corrective justice simply requires that the explanation for aprivate law obligation be bilateral in form: any valid explanation must evinceequal concern for each of the two parties to the private law action, plaintiff an ddefendant. ' However, when a plaintiff claims a property right resulting fromoriginal acquisition, the purported explanation for the right seems to be just theplaintiff's own action or choice to acquire the property. This explanation seemsto focus on the plaintiff and show no concern at all for any interests of the de-fendant. Even in purely formal terms, then, original acquisition looks like a one-sided explanation for both parties' rights and duties.

Kant's solution to the problem of unilateralism is said to involve another pos-tulate, the postulate of public right : when you cannot avoid living side by sidewith all others, you ought to leave the state of nature and proceed with them intoa rightful condition . 2 Whenever individuals cannot avoid contact there maybe conflicting claims of right. To preclude such conflicts everyone must entera rightful or 'civil' condition in which public legal institutions determine an denforce rights. Those institutions bind each person to respect each other's en -titlements, including those established by original acquisition. In so doing, itis claimed, they transform original acquisition. Original acquisition is now notunilateral but 'omnilateral,' because it reflects the prioriunited will of all.2

So far we have followed Kant from the universal principle of right, reform-ulated as the innate right to freedom, to the postulate of private right and itsconcomitant problem of unilateral original acquisition, through to the postulateof public right and entry into the civil condition, in which original acquisitionis legitimized by an omnilateral will. Though the account may resemble a RubeGoldberg contraption, it at least purports to solve the problem of unilateralismthrough the move to the civil condition. However, that solution does not with-stand scrutiny.

I1 The failure of the civil condition solutionThere are two difficulties with the civil condition solution. First, the form of thesolution: it would make the original acquisition of property a matter of distribu-tive rather than corrective justice. Second, the substance of the solution: if origi-nal acquisition is indeed problematic because it is inconsistent with freedom, thecivil condition is unable to transform the character of original acquisition so asto fix that problem.

20. See, e.g., Ripstein, supr note 3 at 153; Jacob Weinrib, supr note 3 at 229; Weinrib, Povertyand Property , supr note 3 at 808; Byrd Hruschka, supr note 3 at 255-56.21. See Ernest J Weinrib, Corrective Justice in a Nutshell (2002) 52 U Toronto 349.22. Kant, supr note 2 at 6:307.23. Ripstein, supr note 3 at 148-59, 182-83; Jacob Weinrib, supr note 3 at 216; Weinrib,

Poverty and Property , supr note 3 at 808-10. Byrd and Hruschka's account of the solutionis somewhat different and cannot be covered here.



6/19

Original cquisition and Unilateralism

a Unilateralism in original acquisition distinguishedBut before turning to the failure of the civil condition solution we must brieflyaddress a complication in the interpretation of Kant under consideration, whichPart I bypassed. On this interpretation, the problem of unilateral original acquisi-tion is not the only motivation for the civil condition. There are at least two othermotivations. 4 First, the need to adjudicate conflicts about rights: to determinedisputes through the application of abstract concepts of right to specific circum-stances. Second, the need to enforce rights: for coercion to ensure that rights arerespected.

Adjudication and enforcement raise concerns for Kant because no person isobliged to respect the fiat of a self-appointed adjudicator or enforcer. Absentsome authorization, the purported adjudication and enforcement of another's ob-ligations is a bare assertion of power over them. 5 In this respect, the actions ofan unauthorized adjudicator or enforcer are 'unilateral.'

Call the concerns about unilateralism in adjudication and enforcement proce-dural concerns. 6 Adjudication and enforcement are merely procedural require-ments for the implementation of a regime of rights. Concerns about the legiti-macy of adjudication and enforcement are in principle independent of questionsabout the validity of the underlying rights that are adjudicated and enforced.Notably, adjudication and enforcement are required for all kinds of rights: peoplemay dispute not only the acquisition of property, but also whether a contract ex-ists, the scope of a fiduciary's obligations, or whether some menacing behavioramounts to assault.

27Contrast the problem of unilateralism in original acquisition. Here irrespec-

tive of whether procedural concerns about adjudication and enforcement havebeen addressed, the validity of the underlying right is in question. Note also thatthis problem supposedly arises for only one aspect of one kind of right: the origi-nal creation of rights to objects.2 There is no equivalent unilateralism problemfor contractual or fiduciary entitlements or bodily integrity. (Given Kant's rigor-ous systematicity, it is strange that only one aspect of one kind of right wouldbe deficient in this way. This odd one out aspect of unilateralism in originalacquisition will resurface later.)

The civil condition is meant to resolve both the general proceduralconcerns24. See Ripstein, supranote 3 at 146; Jacob Weinrib, supranote 3 at 215-16; Weinrib Poverty

and Property , supranote 3 at 807-10.25. Ripstein, supranote 3 at 146-47; Weinrib, Poverty and Property , supranote 3 at 807-08.26. The rest of the article will use this terminology. Any reference to the unilateralism problemsimpliciter asopposed to a 'procedural' unilateralism concem-denotes the particular prob-lem of unilateralism in original acquisition.27. It is sometimes suggested that only 'acquired' rights, and not the 'innate' rights to one's own

body or personality, raise concerns about adjudication, see Byrd Hruschka, svpra note 3 at266 and n 243 or enforcement, see Ripstein, supranote 3 at 161-62 176 80. That seems im-plausible: battery, assault, reputation and privacy claims, for example, all require adjudication;and any rationale for the enforcement of acquired rights applies equally to innate rights, even ifacquired rights are contingent in a way that innate rights are not. In any event, the point abovestands even if it applies merely across all 'acquired' rights.

28. See Ripstein, supranote 3 at 148-59; Jacob Weinrib supranote 3 at 215-16; Weinrib, Povertyand Property , supra note 3 at 807; Byrd Hruschka, supranote 3 at 260-61.



7/19

Sage

about unilateralism in adjudication and enforcement, and the particular problemof unilateralism in original acquisition. Our focus is the latter and it will be im-portant to keep it distinct.b Theformal ailureo the civil conditionsolution: omnilateralismThe first difficulty with the civil condition solution to the particular problem ofunilateralism in original acquisition is its form. The civil condition is supposedto make original acquisition 'omnilateral': it transforms original acquisition bygiving it the authorization of all otherpersons.9 Indeed, this omnilateral formof solution is necessitated by the form of the problem: the need to legitimize theacquirer's action, which allegedly changes the scope of everyone else's freedomby imposing obligations on everyone to respect the acquirer's property.30

However, an omnilateral form of solution precludes property rights being un -derstood in terms of corrective justice. Corrective justice requires that the expla-nation for a private law obligation be bilateral: it must show equal concern foreach of the two parties to the dispute-and not for the interests of other personswho are not party to the dispute. However, an 'omnilateral' form of explanationrefers not just to the plaintiff proprietor and the defendant who interferes with theproperty, but to every person in the civil condition.

In this way the form of the omnilateral solution entails that the explanation forproperty rights must be framed in terms of distributive justice. The key featuresof distributive justice that Aristotle identified are here: a multitude of persons, anentitlement that is to be allocated among them (a property right), and an explana-tion or principle of allocation for the entitlement that concerns every member ofthe multitude.3 Thus, the very form of the civil condition solution, itself a neces-sary response to the form of the unilateralism problem, destroys the possibilityof a non-distributive explanation for property.The omnilateral or distributive form of solution is also inherently expansion-ary : its claim is no weaker with respect to one section of the legal universe thanit is to another. 32 If we invoke omnilateralism in one part of private law, whyshould it not also explain the rest of private law? If the omnilateral form of ex -planation is valid, we cannot arbitrarily restrict it to one legal doctrine. Invokingan omnilateral solution therefore propels us toward a conception of private lawas a whole that bears no resemblance to corrective justice.33 Yet private law does

29 See, e.g., Ripstein, supranote 3 at 154; Byrd & Hruschka, supra note 3 at 245 46; Weinrib, Poverty and Property , supranote 3 at 809.

30 Cf Richard A Epstein, Possession as the Root of Title (1979) 13 Ga L Rev 1221 at 1228,citing Hans Kelsen, The Pure Theory of Law (1934) 50 LQ Rev 474 at 494.31 Aristotle, Nicomachean Ethics translated by Martin Ostwald (Upper Saddle River, NJ:

Prentice Hall, 1999) at 1130b30-1132b20.32. Ernest Weinrib, Law as a Kantian Idea of Reason (1987) 87 Colum L Rev 472 at 477. Atleast, this applies if we seek-as Kant does-to understand the law as a unified and coherent

justificatory enterprise.33. In this vein, others have argued that, because for Kant property rights are merely provisionalin the state of nature they need not be respected by lawmakers in the civil condition. AlanBrudner, Private Law and Kantian Right (2011) 61 U Toronto L 279 at 295ff; JeremyWaldron, Kant's Legal Positivism (1996) 109 Harv L Rev 1535 at 1564-65.



8/19


seem to be a system of corrective rather than distributive justice.34It is important here to note again the contrast between the problem of unilater-alism in the original acquisition of property, where the validity of the underlyingright is itself in question, and the merely proceduralconcerns about adjudica-tion and enforcement. It may be that adjudication and enforcement require anomnilateral authorization, so that nobody can complain that those procedures are'unilateral.' However, such an omnilateral authorization would not necessarilyaffect the rationale for the underlying rights adjudicated or enforced. It would notimply that the underlying rights themselves must be explained on the basis of theomnilateral authorization.35

c The substantive ailureo the civil conditionsolution: thepersistenceof'unilateralismThe civil condition solution could nevertheless be compelling if it did transformoriginal acquisition by allowing it to shed its apparently unilateral character.However, on neither of two of the most prominent accounts, those of ErnestWeinrib and Arthur Ripstein, does this happen.In the civil condition there is no change to the way original acquisition occurs:the same individual action, taking control of an object, will have the same effecton others' freedom, by creating a property right. It is just that, after the creationof public legal institutions, an 'omnilateral will' is now said to authorize thisprocess of acquisition. What exactly is the nature of this authorization and howdoes it occur?Two possibilities can be dismissed at the outset, as Ripstein points out.36 First,the authorization of original acquisition cannot occur through the actualconsentof every person. Kant rightly rejects any account of property rights based onactual consent. Even if everyone initially consented, that would not bind subse-quent generations. 3 Moreover, an actual consent criterion would make propertydependent on choices people happen to make about what rights to have. But Kantwants to show that property rights are necessary.

Second, original acquisition cannot be authorized through a fair play prin-ciple of the kind advocated by H.L.A. Hart and John Rawls.3 A fair play prin-ciple provides that one who chooses to enjoy the benefits of a social practice,such as property, must share its burdens in accordance with the practice's estab-lished rules. This principle avoids one shortcoming of actual consent, becauseit covers all subsequent generations that participate in the practice. However,

34 Ernest Weinrib, The IdeaofPrivateLaw (Cambridge, MA: Harvard University Press, 1995).35. This would square with the traditional idea that courts are public institutions but may never-theless adjudicate and enforce rights that remain private in character. Cf Kant, supranote 2 at

6:297; Ernest J Weinrib, Private Law and Public Right (2011) 61 U Toronto LJ 191; JamesPenner, The State Duty to Support the Poor in Kant's Doctrineof Right (2010) 12 BritishPol & Int'l Relations 88 at 97.36 Ripstein, supranote at 184-90.37. See ibid at 156; Byrd & Hruschka, supranote 3 at 269.38. Ripstein, supranote 3 at 185-87; HLA Hart, Are There Any Natural Rights? (1955) 64 PhilRev 175 at 185; John Rawls, Legal Obligation and the Duty of Fair Play in S Hook, ed, LawandPhilosophy: Symposium (New York, NY: New York University Press, 1964).



9/19

ge

like actual consent, the fair play principle renders property rights contingent-here upon persons willingness to participate in the practice. For example, theprinciple would not apply to those who acquire no property for themselves.39Accounts of the civil condition must look elsewhere for a way to transform origi-nal acquisition.i Weinrib accountWeinrib links the transformative power of the civil condition to its ability to en-sure, first, the adjudication and enforcement of rights created by original acquisi-tion, and second, the systematization or mutual relation of such rights.4

First, Weinrib tells us that the civil condition is transformative because it pro-vides adjudication and enforcement. According to Weinrib, no person can beobligated to abide by another's acquisitions unless she is assured that they willabide hers.41 The only way to provide such assurance is for a coercive authority toadjudicate and enforce rights. In the civil condition, public legal institutions canprovide such coercive authority and thereby assure each person of their rights.

This line of reasoning makes sense, but it does not address the particular prob-lem of unilateralism in original acquisition. As we have seen, the need for ad -judication and enforcement are merely procedural concerns. They apply to allkinds of rights.42 They provide no basis for singling out original acquisition as aspecial motivation for the civil condition. Moreover, adjudication and enforce-ment are procedural solutions. They do not touch the validity of the underlyingright adjudicated or enforced. Merely adjudicating and enforcing a right cannottransform its rationale. On the contrary, if a certain right is problematic becauseit is inconsistent with others' freedom, for it to be adjudicated as valid and en-forced can only exacerbate that problem. Adjudication and enforcement in thecivil condition must therefore presume that any problems with the underlyingrights-such as the alleged unilateralism of rights created by original acquisi-tion-have already been solved.

Second, Weinrib argues that the civil condition entails that an original ac-quisition is no longer an isolated individual act, but rather one that is mutuallyrelated to other performances of the same act, through a common legal systemin which all persons are reciprocally obligated to recognize that such acts createvalid rights. According to Weinrib, this systematization or mutual relation of ev -eryone's original acquisitions means that each individual acquisition is no longer unilateral .4

However, systematization or mutual relation cannot solve the problem of orig-inal acquisition. If original acquisition is problematic because it is inconsistent

39 See Ripstein, supra note 3 at 185-90. It is implausible to describe persons who have merely thepotenti l to acquire property as having opted in to the institutions of property. At most, theyare the passive recipients of a benefit, and that cannot itself create duties, at least in a systemof Kantian freedom.40 Weinrib, Poverty and Property , supra note 3 at 807-10.41. Ibid42. Or at least every 'acquired' right. See supra note 27 .43. Weinrib, Poverty and Property , supra note 3 at 809.



10/19

Original cquisition and Unilateralism 7

with others' freedom, then creating a system in which all persons are recipro-cally obligated to recognize original acquisitions as valid can only exacerbatethe problem. Nor does it help to relate one problematic instance of acquisition toanother. By way of analogy, no Kantian would accept that we could legitimizethe theft of property by creating a system in which everyone is obligated to rec-ognize the validity of thefts, and in which each theft is mutually related to otherthefts. Thus, the very idea of systematization or mutual relation assumes that theproblem of unilateralism in original acquisition has already been solved.

Perhaps then, although Weinrib characterizes original acquisition as raisingthe particular problem with which we are concerned-that it allows one personcoercively to restrict another's freedom through unilateral acts that establish aproprietary right to exclude 4-- he does not really believe that it is problematicin this way. However, if that is so then he cannot single out the original acquisi-tion of property as especially motivating and requiring transformation by thecivil condition.45

ii Ripstein accountWhereas Weinrib connects the transformation of original acquisition to the ad-judication, enforcement, and systematization of rights, Ripstein connects it topublic legislation. According to Ripstein, in the civil condition, legislation pro-vides that property may be acquired through original acquisition. This legislationtransforms original acquisition because the legislation embodies the omnilateralwill of all citizens.Ripstein begins by explaining how legislation can be something other thana merely 'unilateral' assertion of the legislators' power over the citizenry. Thisis of course yet another procedural unilateralism' concern: it applies wheneversomeone purports to legislate rights, regardless of the nature of the underlyingrights contained in the legislation. (Just as the adjudication concern is indepen-dent of the underlying rights adjudicated.) Ripstein claims that legislation is non-unilateral when it is done, not in pursuit of legislators' own interests or for someother non-public purpose, but solely for the public good. In this respect, legisla-tors are like fiduciaries whose beneficiary is the public as a whole.) 46

So far, this account of legislation has no connection to the principles of Kantianprivate right. If the fact of legislators acting in the public interest were itself suf-ficient to legitimize legislation, there would be no basis to demand the legisla-tion of any particular kinds of rights, such as property rights established throughoriginal acquisition. And even if legislators did adopt principles of Kantian pri-vate right, such as a rule of original acquisition, there is as yet no reason to view

44. Ibid at 808.45. Weinrib also formulates the problem with original acquisition as a problem for equality Thereare of course various ways in which property acquisition obviously affects equality for ex-

ample, by increasing the acquirer's wealth), but within the Kantian framework the only issueis equality of reedom Thus, if original acquisition is unproblematic from the standpoint ofKantian freedom-as a civil condition that merely adjudicates, enforces, and systematizes orrelates rights presupposes-then it is also consistent with Kantian equality. Each person hasexactly the same (unproblematic) freedom.

46 Ripstein, supranote 3 at 190-98.



11/19

Sage

that legislation as sanctioned by the 'omnilateral will' of everyone.47 If a citizenasks why his will is reflected in a certain piece of legislation, it is no answer tosay, 'Because certain officials have (in good faith) decided that is in the publicinterest.' That does not even attempt to link the justification for the legislation tothe will of the citizenry. At best we have a placeholder, 'in the public interest,'which must be filled with a justification. Conceivably, if the justification is on ethat everyone must rationally accept, we could then view the law as embodyingthe a priori united will of everyone.

Ripstein thus proceeds to discuss the underlying rights that are legislated inthe civil condition, and how they can be regarded as reflecting an omnilateralwill4 -in other words, [w]hat work the idea of self-imposed law [is] doing,and on what basis people decide between potential laws .49 However, at thispoint, with regard to private law all we get is a re-assertion of the principles ofKantian private right (as outlined in Part I). Ripstein tells us that legislators mustenact these principles, and if that is done, the legislation reflects the a prioriunited will of everyone. Ripstein quotes Kant to encapsulate this idea:

[E]veryone omnes et singuli) within a people gives up his external freedom inorder to take it up again immediately as a member of a commonwealth, that is, ofa people considered as a state universi).... [Everyone] has relinquished entirelyhis wild, lawless freedom in order to find his freedom as such undiminished, in adependence upon laws, that is, in a rightful condition, since this dependence arisesfrom his own lawgiving will.5We have thus traveled a long way to end up right back where we started. Theprinciples of Kantian private right were supposed to contain an inherent contra-diction: property must be possible, but the original acquisition of it is problemati-cally unilateral because it restricts others' freedom. Ripstein argues that propertyrights are morally incoherent for this reason.5 However, merely reassertingincoherent principles through public legislation cannot fix them.52

iii. Kant s limitationsNone of this yet proves that no account of the civil condition could solve theproblem of unilateralism. However, there is a general difficulty that no accountcan overcome.

Kant's entire system is built upon a single normative idea: his conception offreedom. Your action must not be chosen by any other person. If that is the case,

47. As Waldron puts it, Kant cannot [think] that we ought to submit to the results of the legislativeprocess as a matter of pure procedural justice. Waldron, Kant's Legal Positivism , supranote 33 at 1564.

48 Ripstein, supranote 3 at 198-204.49. Ibid at 183.50. Ibid at 199, quoting Kant, supra note 2 at 6:315-16.51. Ripstein, supra note 3 at 23, 146, 183.52. There is another issue with Ripstein's characterization of original acquisition in particular as

requiring repair through legislation. (See supra note 3 at 146-49.) At least in common lawcountries, the rules of original acquisition are established by the adjudicative branch. Bu tRipstein's account implies that in establishing original acquisition, courts perform a kind oflegislative act, which differs from what they do in recognizing other private law rights.



12/19


then nothing could sanction a violation of your freedom other than your actualconsent-your choice for the 'violation' to occur, ratifying it as if it were yourown action. But as we have seen, Kant must reject any account of original acqui-sition that makes it contingent on every person's actual consent.Both Weinrib and Ripstein's accounts attempt to grasp a transformative prin-ciple that has the flavor of omnilateral actual consent. Thus, Weinrib invokesthe idea of systematization or mutual relation. However, those processes cannotlegitimize conduct that is inconsistent with freedom. Ripstein is driven to seek ana prioriunited will in the notion that certain rights must be legislated by rationalpersons. But for Kant, any rational necessity must be located within the veryprinciples of freedom whose alleged deficiency needs fixing.The limitations of Kant's system therefore preclude a solution to the problemof the unilateralism of original acquisition. Part IV will argue that if closer atten-tion is paid to those limitations-to Kant's austere conception of freedom-thenthe problem in fact disappears. Before turning to that, it is worth briefly consider-ing another approach to original acquisition: Hegel's.III egel and original acquisitionAt least on one interpretation, Hegel's account of private law proceeds from aconception of freedom similar to Kant's. 3 Hegel calls this conception of freedompersonality. The sparseness of Hegel's account is reflected in his axiom: Be aperson and respect others as persons. 54 The whole of Hegel's system of privateright is built upon his conception of personality or freedom.Personality, insofar as it applies in private law, requires only that one per-son's manifested free will not be subjected to the will of any other person. LikeKantian freedom, personality is relational and negative. Persons' wishes or needsare irrelevant, and nobody has any right to a particular context in which to exer-cise their free will.

Personality entails a right to bodily integrity, because a person's free will ismanifested through their body.55 It also necessitates property rights, since objectsin themselves have no personality, and a person's will can be manifested in thecontrol of objects.5 6 For Hegel, a property right is originally acquired when a per-son manifests her will over an object, by taking control of it. And the property

53. The following tracks the interpretation developed by Peter Benson. See especially AbstractRight and the Possibilityofa Nondistributive Conception ofContract: Hegel and ContemporaryContract Theory (1989) 1 Cardozo L Rev 1077. See also Ernest J Weinrib, Right andAdvantage in Private Law (1989) 1 Cardozo L Rev 1283; Peter Benson, Misfeasance asan Organizing Normative Idea in Private Law (2010) 60 U Toronto L 731, in which Bensonpresents an account of property rights consistent with the Hegelian standpoint. Note that thisinterpretation differs significantly from, for example, that of Jeremy Waldron, he Right toPrivateProperty supranote 1, ch 10, or Alan Brudner, The Unity of he Common Law: Studiesin HegelianJurisprudence Berkeley: University of California Press, 1995).

54. GWF Hegel, Philosophyof Right translated by TM Knox (Oxford: Clarendon Press, 1952)at para 36. At one point, Hegel describes property rights as the freedom of a single personrelated only to himself ; here he is not suggesting property rights are non-relational but con-trasting property to contract, which involves the explicit joining of two wills. See para 40.

55. lbid at para 48.56. Ibid at paras 42, 44.57. Ibid at para 54.



13/19

Sage

right acquired is just the right to control the object. Thus, for Hegel the mode ofacquisition of the property right, the manifestation of control, coheres with thenature of the right thereby established-the right to exclusive control.

Hegel does not find original acquisition problematic. On the contrary: Theprinciple that a thing belongs to the person who happens to be the first in timeto take it into his possession is immediately self-explanatory and superfluous,because a second person cannot take into his possession what is already the prop-erty of another. 8 Since Hegel evidently sees no problem of unilateralism worthaddressing, contemporary Kantians have rejected his account. 9 They supposeHegel must have been strangely oblivious to a critical problem.Kantians have further argued, against Hegel, that there can be no systematicconnection between the mode of acquisition and the normativity of the rightthereby established.6 This claim reflects the Kantians' assumption that the origi-nal acquisition of property is problematically unilateral, but that there is no suchproblem with respect to existing property rights.6' This assumption is odd, for atleast two reasons. First, Kant's philosophy of private right assumes a deep coher-ence throughout private law. 62 Yet here a serious disjunction within a single rightis asserted. Second, there is a very strong resemblance between the mode of ac-quisition of property, the manifestation of control over an object, and the nature ofan existing property right, which entails the right to control the object.

Finally, Kantians have also derided Hegel's account as a 'guardian spirit'theory of property. The idea is that Hegel, in explaining property through theacquirer's 'unilateral' action of taking control, must believe in a guardian spirit-like connection between a person and the thing she acquires.63 This is also apeculiar objection. Hegel, uncharacteristically, could hardly be clearer that heviews all private law rights as relational-as existing between persons. ('Be aperson and respect others as persons.') It would be sophomoric for Hegel tocontradict himself and explain property in terms of connections between personsand things. Surely there must be a more charitable interpretation that does notcommit him to guardian spirits?

Indeed, it turns out all three of these Kantian criticisms arise from the sameerror that generates the unilateralism problem itself: a failure to respect the limi-tations of the Kantian right and the equivalent Hegelian system. Once those limi-tations are recognized the problem of unilateralism disappears.IV The so ut on

Consider how the unilateralism problem is formulated. Original acquisition iscalled 'unilateral' because the acquirer's action 'limits' other persons' 'free-dom -it imposes a new 'constraint,' 'duty' or 'obligation,' it 'changes their

58 bid at para 559. Ripstein, supra note 3 at 97; Jacob Weinrib, supranote 3 at 225-30.60 bid at 230; see also Ripstein, supranote 3 at 96-98, 154.61. bid at 86-106; Jacob Weinrib, supra note 3 at 225-30.62. See, e.g., Weinrib, Law as a Kantian Idea of Reason , supra note 32.63. Ripstein, supra note 3 at 22, 92-93; Jacob Weinrib, supra note 3 at 216 n 55, 228-29; cf Kant,supra note 2 at 6:260.



14/19


normative situation.'64 If those terms have their ordinary meanings then originalacquisition is indeed unilateral. One person's action means that a certain objectis no longer available for others to access. To that extent, the freedom of thosepersons is limited, they are under new constraints, duties or obligations, and theirnormative situation is changed.

In an all-things-considered moral universe this would be troubling. But inthe Kantian right, unilateralism in this sense is irrelevant. A specific concep-tion of freedom carries the justificatory burden of [Kant's] entire argument .Limitations, constraints, duties, and obligations are immaterial unless they con-travene this conception. Likewise, normative change matters only if it implicatesKant's singular norm of freedom.

Recall that for Kant 'freedom' means only that each person's action must betheir own-it cannot be chosen by any other person. This conception of free-dom is purely relational and strictly negative. That is brought out in the contrastbetween, on the one hand, a person's purposive action, and on the other, the'context' for their action or their 'mere wishes'. A person has no right to any par-ticular context for the exercise of their action. Moreover, a person's mere wishfor something creates no entitlement to it. Indeed, even a desperate need for aparticular resource does not bind anyone else.

Why does Kant insist that, while a person's actionnecessarily commands re-spect, their mere wish or need never binds others?66 One answer is that Kant'ssystem concerns only relations between persons, and wishes and needs are non-relational: they bear no necessary relation to any other person. A person can wishfor or need something even though no other person could get it for them. Butwhat about wishes or needs that can be realized with others' help? Most of usthink that people ought to respect each other's needs and at least some wisheswhen this is practicable.

Kant's answer is that if my wish or need bound you as a matter of right then Iwould be choosing your action for you. Even if you did not want to, you wouldhave to direct your action toward satisfying my wishes or needs. I would thusbe using your purposiveness to achieve my ends. That would be inconsistentwith your freedom-your right that you alone choose how you exercise yourpurposiveness.67

Thus, one way that I could violate your freedom-one way could chooseyour action for you-is by forcing you to satisfy my wish, thereby using yourpurposiveness to achieve my end. There is also another way I could choose youraction for you: by acting myself such that I foreseeably interfere with your ac-tion. When my action interferes with yours, your exercise of your purposiveness

64 See notes 16-20, above.65. Ripstein, supra note 3 at 14.66. Kant, supra note 2 at 6:230. Note that the discussion here addresses Kant's philosophy of law,

not his ethics. (The distinction between wish and choice was originally Aristotle's. See supranote 3 at llllb-lIl3b.67. This is what explains the absence of a general duty to rescue as a matter of private right. Notethat without the Kantian conception of freedom in mind, the obligation to respect original ac-quisition resembles a duty to rescue. See Waldron, he Right to PrivateProperty supra note at 269-70; Stephen R Munzer, The Acquisition of Property Rights (1991) 66 Notre DameL Rev 661 at 670-72.



15/19

ge

does not produce the end that you intended. Instead it produces some other end,which I have effectively substituted and thereby chosen for you. (Since it is no talways obvious whether an interference that happens to result from my action isproperly regarded as my choice, sophisticated systems of private right developobjective tests to decide.)68

Under the Kantian conception of freedom, original acquisition is unproblem-atic because your taking control of an unowned object is just your own action.To take control of the object is to subject it to your action. You do not, in takingcontrol of an object, choose any other person's action for them. You do not useanyone else's purposiveness to achieve your end, you just exercise your ow npurposiveness. Nor does your action interfere with anyone else's action-bydefinition, the object in question, which you are origin llyacquiring, is not yetsubjected to any other person's control or action. Thus, the object is at most thetarget of others potenti laction-in other words, of their mere wishes. That isirrelevant for Kant.

We can see the same point by recalling that, for Kant, the categories of pri-vate law entitlement embody 'freedom': they reflect the ways in which personsextend their action or purposiveness in the world.69 A person acts through theirbody, so they have an entitlement to bodily integrity. A person can also acquirea property right over an object that is separate from the body, by subjecting theobject to their action through taking control. Now, prior to original acquisitionan object is clearly not part of any person's body, nor is it any person's property.No person has any entitlement to the object. Which is just to say that no personhas yet subjected it to their action. Therefore the object is as yet unconnected toany person in a way that is recognized by the Kantian right. An unacquired objectmay be connected to persons only in ways that are irrelevant. (For example, asthe target of a wish, or as the anticipated context for their actions.)

We might say, then, that prior to its acquisition an object-which does no thave any normative standing of its own-is invisible to the Kantian right. Anobject appears for the very first time upon acquisition, lre dy incorporated intosome person's sphere of external purposiveness. Or more accurately, since rightsare always relational, we could say that the Kantian right sees just the interrela-tion between two persons' spheres of externalized purposiveness-one or both ofwhich may have already extended over objects.

The formulations of the unilateralism problem obscure all this. Original ac-quisition does diminish 'freedom' in one sense: it shrinks the domain of objectsthat are available for others to access in the future-the domain of objects thatcould potenti lly be subjected to others action. But that has nothing to do withKantian freedom. Likewise, as a pragmatic matter original acquisition imposesa constraint, duty or obligation: others are now obligated not to deal with a cer-tain object. But in Kantian terms obligations are unchanged: each person mustrespect each other's action; one person's action now happens to extend overthe object in question. Finally, original acquisition changes others' normativesituation, conceived as a sort of catalog of options they might pursue or objects

68 See Benson, Misfeasance , supr note 569 See Part 1 bove.



16/19


they could potentially subject to their action. But from Kant's perspective, theirnormative situation remains the same. The object remains unsubjected to theiraction, and they remain obligated to respect the acquirer's. That an object otherpersons couldhave extended their action over is now unavailable to them has nosignificance for Kant. It is only if we see the world in terms irrelevant to Kantianright-not as a world of purposive agents related to each other through theirexternal actions and choices, but as a world of physical objects or resources andcreatures with wishes and needs for them-that original acquisition is problem-atically 'unilateral.'

That a non-Kantian conception of freedom is required to render originalacquisition problematic is brought out by Ripstein's discussion of propertyrights. Ripstein argues that original acquisition is uniquely problematic be-cause one person's unilateral act imposes new obligations on others.7 0 Toshow that this problem is unique to original acquisition, Ripstein contrasts thepurchase of an object with its original acquisition. Based on his examples, wecan contrast two scenarios:1)ust before another person enters the stamp dealer's store, you buy the rare

stamp they had been saving to purchase.(2) The stamp is on an envelope discarded in the gutter. Just before another

person grabs the envelope, you take it for yourself.Ripstein claims that in (1), the purchase scenario, you do not unilaterally im-

pose a new obligation ,7' but in (2), the original acquisition scenario, you do:Purchasing hings that others had hoped to buy narrows the range of things thatthose others might do, but does not place any new obligations on them. Otherswere already under an obligation to refrain from interfering with the stamp thatyou [purchased]; they face no new obligations as a result of your acquisition of it.Only their hopes have been dashed. They are in the same position as against youthat they were in as against the previous owner: they can still try to make you anoffer to convince you to sell it to them, even ifyou do not actively invite offers.The original cquisitionof property remains distinctive because it does not simplychange the world: it places others under new obligations.73

Concerning the purchase scenario, Kant should agree with Ripstein that the factthat others' hopes have been dashed -that their wishes have been thwarted-isirrelevant. They had not yet subjected the stamp to their action, so in obtainingit for yourself you commit no wrong against them. For Kant, that should be theend of the matter.

However, Ripstein supplements this explanation in non-Kantian terms. Hesays that, following your purchase of the stamp, there is no new obligationbecause others are in the same position as against you hat they were in as

70 Here Ripstein joins a debate in contemporary political philosophy as to whether originalacquisition of property raises unique issues of justification. See, e.g., A John Simmons,Original-Acquisition Justifications of Private Property (1994) Social Phil Pol'y 63 at81-84; Gerald F Gaus Loren E Lomasky, Are Property Rights Problematic? (1990) 7Monist 483.

71 Ripstein, supra note 3 at 151-53; see also pages 16, 101.72. bid at 153.73 bid [emphasis added].



17/19

Sage

against the previous owner .74 In other words, the stamps changing hands cre-ates no new obligation' because, following the sale, the scope of others' poten-tial action with respect to the object is unchanged.75

But others potential actions are at most their mere wishes. Thus, just af-ter Ripstein has purportedly excluded the relevance of wishes, his supplementalexplanation invokes them again. On this approach, whether your action createsa 'new obligation' effectively turns on whether others abilities to satisfy theirwishes with respect to the object remain the same after your action as before-hand. That is not a valid consideration in Kant's system.

It is, however, the kind of consideration that must be invoked in order todistinguish between purchase and original acquisition, and to portray originalacquisition as uniquely problematic. Your original acquisition differs from yourpurchase only in that it is likely to limit more severely the potential actions othersmight have liked to take with respect to the object.This brings us to a further set of difficulties with the view that originalacquisition is problematic. If 'unilateralism' is a problem for the original acqui-sition of property, it is also a problem throughout private law. First of all, notethat if the objection to an individual's act of original acquisition is that it restrictsothers' potential action, then there is no reason to limit the objection to those actsof the individual that implicate legal entitlements i.e., 'obligations').76 If otherpersons' legitimate grievance about original acquisition is its impact on theirpotential action, they should have the same right to complain about anything thataffects their potential action, whether this happens through the creation of a legalentitlement or otherwise. For example, from others perspective, your damagingor destroying an object is at least as bad as your acquisition of it.77

Even within the context of legal entitlements over objects, original acquisi-tion cannot be singled out. Following the original acquisition of an object, con-cerns will continue to arise regarding the supposedly 'unilateral' nature of en-titlements to that object. (It is not as if original acquisition takes the object 'out ofcirculation,' so to speak, so that if that act can be legitimized, all subsequent actsby the owner, and subsequent owners, will be legitimate.) For instance, your con-tinued possession of an object is just as problematic as your original acquisition.Every moment you continue to control an object-rather than, say, abandoning itor ceding to adverse possession-you maintain your property right and therebyexclude others. Your alienation of the object is also problematic: why can youdecide to pass the object on to a particular third party, when that will entail thatother persons cannot access it?

Moreover, considered within the context of the creation of legal entitle-ments generally, the original acquisition of property is in no way unique. The

74. id75 While Ripstein mentions the continued ability to offer to buy the stamp, presumably this is

meant to be illustrative rather than determinative in itself. Otherwise, a 'new obligation' wouldarise if the purchaser happened to be (in contrast to the stamp dealer) factually or legally inca-pable of receiving offers for some reason.

76. Compare Alan Gibbard, Natural Property Rights (1976) 10 NoOs 77 at 78 (presuming thatthere is a difference between changing the physical world and creating obligations).

77. Indeed, since wishes are non-relational, others may complain even if their potential access isthwarted by no otherperson-for example, when an object is struck by lightning.



18/19


creation of any legal entitlement is 'unilateral' in that it changes the scope ofothers' 'freedom,' creates 'constraints,' 'duties' or 'obligations,' and alters their'normative situation'-in the non-Kantian sense of those words. Take the rightto bodily integrity. When your body grows, it occupies new space that I can nolonger access. I face new constraints with respect to that space. The same hap-pens when you immigrate to my country, or when you are born and move out intospace as a separate personality for the first time.7 The supposed unilateralismproblem also arises for contract rights. When you contract, you have the otherparty's consent, so your change to that person's normative situation is arguablyunproblematic.7 9 But your contract also alters the rights of non-consenting thirdparties who now have a duty not to induce breach.80 Likewise, the creation ofa fiduciary relationship imposes a duty on third parties not to assist breach.81Previously, we noted that it was odd, given Kant's rigorous systematicity, that theproblem of unilateralism arises only for the initial creationof property rights. 2As it turns out, if unilateralism is a problem for original acquisition, it is a prob-lem that is common to all private law rights.

To summarize: with the distinction between mere wish and purposive ac-tion clearly in mind, we can see that the particular problem of unilateralism inthe original acquisition of property is only a pseudo-problem. The act of originalacquisition does not itself constrain others' freedom, in the Kantian sense of thatterm. Furthermore, the allegedly problematic effects of original acquisition arenot unique, but rather occur throughout private law.

Now, it might be argued that, even if Kant's system cannot confer on per-sons a right against another's acquisition of an unowned object, Kant couldconfer on persons a liberty to use unowned objects,83 and another's purport-ed original acquisition would then violate that liberty. However, this 'liberty'would mean that Kant's theory of private law proceeds from two conceptions offreedom at once: freedom as the right that no other person chooses your action,and freedom as a liberty to use objects. Those two conceptions are incompat-ible: a person's action may conflict with another person's liberty to use objects.Moreover, considered relationally, the suggested 'liberty' is either incoherent,or reduces to a system of original acquisition.84 The liberty could mean that 1

78. While bodily integrity might be contrasted to property rights on the basis that the latter are'acquired' rights whereas the former we somehow have inherently, that does not make bodilyintegrity less problematically 'unilateral.' Cf note 27, above.

79. Depending on how contract rights are understood. Arguably, the irrevocability of the prom-ise gives rise to an analogous unilateralism problem. In contract law if, after promising, youchange your mind and decide not to perform, the promisee can force you to do so, becauseshe has acquired a right to that performance. From the perspective of the promisor who hasrevoked his consent, the promisee's right may be characterized as 'unilateral.' See Penner, State Duty , supranote 35 at 97. But see Waldron, he Right to Private Property supra noteI at 267; Jeremy Paul, Can Rights Move Left? 1990) Mich L Rev 1622 at 1630.

80. Lumley v Gye 1853) 2 El & BI 216. In his most recent work, Weinrib contends that inducingbreach of contract must be explained in terms that refer to public right. Weinrib, Private Lawand Public Right , supra note 35.

81. arnes vAddy 1874) 9 Ch App 244.82. Part II, above.83. f Waldron, he Right to PrivateProperty supranote I at 153-55; Gaus Lomasky, supranote 70 at 486, 488-90; Gibbard, supranote 76 at 78.84. See JE Penner, he Idea ofProperty in Law (Oxford: Clarendon Press, 1997 at 68-70.



19/19

Sage

may subject an object to my action, i.e. control it provided no one else comesalong who wants to do so. But in relational terms, this liberty gives me noth-ing as soon as a conflict arises, the other person prevails. If everybody hasthat liberty, nobody has anything. Alternatively, the liberty could mean that Imay control the object, even if someone else comes along who wants to do so .But again, if everyone has that liberty, nobody has anything. Finally, the libertycould mean that I may control the object regardless of whether someone elsecomes along who wants to do so but provided nobody else is already doing so .That is just a system of original acquisition.

Two final points. First, revealing unilateralism as merely a pseudo-problemfor the Kantian right also answers the contemporary Kantians' peculiar criti-cisms of Hegel's account of property. It explains Hegel's apparent obliviousnessto the unilateralism problem. Using what is for present purposes an equivalentconceptual scheme to Kant, Hegel rightly thought it unproblematic that a prop-erty right arises when a person first manifests their will over an object-by tak-ing control of it i.e. subjecting it to their action. Furthermore, unimpeded byconcerns about unilateralism, Hegel could recognize that the way you acquireproperty, through taking control, matches the content of the property right, theright that others respect your control. Thus he presented a fully integrated an dcoherent account of property. Moreover, the Kantian 'guardian spirit' objec-tion is turned on its head. Hegel views property rules as mediating betweenthe manifested wills of purposive agents. Objects of property are effectivelyinvisible from this perspective-we see only relations between free wills, whichmay happen to extend over objects. In contrast, in order to problematize originalacquisition one must consider connections between persons and objects-suchas wishes, needs, or potential for use-that are non-relational. They connect aperson to an object rather than relating a person to another person. The upshot isthis: if anyone, it is not Hegel but contemporary Kantians who have a 'guardianspirit' account of property.

Finally, if original acquisition is no problem for a coherent version of theKantian right nor is there a problem for a system of corrective justice based onthat version of the Kantian right. In such a system, the explanation for the plain-tiff's private law claim concerning originally acquired property is not her unilat-eral decision to acquire the object. The explanation is that the defendant trespass-er, through his purposive action, has purported to interfere with the proprietor'saction. 5 The rules of property therefore evince equal concern for the 'freedom'of both plaintiff and defendant. A rationalized Kantian or Hegelian account ofproperty supplies the bilateral explanation that corrective justice demands.

85. See Benson, Misfeasance , supr note 53.

Documents

Sage Kant and Original Acquisiton