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Original Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice

Published online by Cambridge University Press:  20 July 2015

N.W. Sage
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Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else (to respect the property right) through her own “unilateral” action or choice. This article first addresses proposed Kantian solutions to the supposed “unilateralism” problem, which involve the creation of a “civil condition” of public legal institutions to determine property rights. Such solutions make property rights a matter of distributive justice rather than corrective justice. Moreover, they cannot actually solve the unilateralism problem. But in any event, the supposed “unilateralism” problem is in fact no problem at all for Kant. This is because one person’s original acquisition does not limit others’ “freedom” in the Kantian sense of that term. In this respect Kant’s account of property is equivalent to Hegel’s, which contemporary Kantians have criticized for denying any problem of unilateralism. And both Kant and Hegel’s accounts are fully consistent with a theory that explains property as a matter of corrective, rather than distributive, justice.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 25 , Issue 1 , January 2012 , pp. 119 - 136
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Copyright © Canadian Journal of Law and Jurisprudence 2012

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References

Thanks to Peter Benson, Ernest Weinrib, Jacob Weinrib, Sinziana Tugulea, and Zoe Sinel for comments on previous drafts.

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

2. Kant, Immanuel, Doctrine of Right in The Metaphysics of Morals in Practical Philosophy, translated by Gregor, Mary (Cambridge: Cambridge University Press, 1996).Google Scholar

3. Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009)CrossRefGoogle Scholar; Weinrib, Jacob, “What Can Kant Teach Us about Legal Classification?” (2010) 23 Can JL & Jur 203 Google Scholar; Weinrib, Ernest J, “Poverty and Property in Kant’s System of Rights” (2003) 78 Notre Dame L Rev 795.Google Scholar See also Sharon Byrd, B & Hruschka, Joachim, “The Natural Law Duty To Recognize Private Property Ownership: Kant’s Theory of Property in his Doctrine of Right” (2006) 56 U Toronto LJ 217.CrossRefGoogle Scholar (Byrd and Hruschka’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-interpreted to avoid them, but that project is not taken on here.

4. Kant, supra note 2 at 6:230.

5. Ibid at 6:237. On the interpretation being considered here, innate right re-presents aspects of the universal principle without adding to it. See Weinrib, “Poverty and Property”, supra note 3 at 803; Ripstein, supra note 3 at 35-36; Jacob Weinrib, supra note 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.

8. Kant, supra note 2 at 6:230; Ripstein, supra note 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. As Weinrib 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, supra note 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 of private right” is employed at times by Ripstein, supra note 3 at 196, and Jacob Weinrib, supra note 3 at 214. Byrd and Hruschka call it the “postulate of private law”, supra note 3 at 247.

15. Kant, supra note 2 at 6:263; Ripstein, supra note 3 at 104-05. Cf Pierson v Post 3 Cai 175 (NY Sup Ct, 1805).Google ScholarPubMed

16. See, e.g., Ripstein, supra note 3 at 90, 151-55.

17. Ibid 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.

20. See, e.g., Ripstein, supra note 3 at 153; Jacob Weinrib, supra note 3 at 229; Weinrib, “Poverty and Property”, supra note 3 at 808; Byrd & Hruschka, supra note 3 at 255-56.

21. See Weinrib, Ernest J, “Corrective Justice in a Nutshell” (2002) 52 U Toronto LJ 349.CrossRefGoogle Scholar

22. Kant, supra note 2 at 6:307.

23. Ripstein, supra note 3 at 148-59, 182-83; Jacob Weinrib, supra note 3 at 216; Weinrib, “Poverty and Property”, supra note 3 at 808-10. Byrd and Hruschka’s account of the solution is somewhat different and cannot be covered here.

24. See Ripstein, supra note 3 at 146; Jacob Weinrib, supra note 3 at 215-16; Weinrib, “Poverty and Property”, supra note 3 at 807-10.

25. Ripstein, supra note 3 at 146-47; Weinrib, “Poverty and Property”, supra note 3 at 807-08.

26. The rest of the article will use this terminology. Any reference to the unilateralism problem simpliciter—as opposed to a ‘procedural’ unilateralism concern—denotes the particular problem 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, supra note 3 at 266 and n 243, or enforcement, see Ripstein, supra note 3 at 161-62, 176-80. That seems implausible: 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 if acquired rights are contingent in a way that innate rights are not. In any event, the point above stands even if it applies merely across all ‘acquired’ rights.

28. See Ripstein, supra note 3 at 148-59; Jacob Weinrib, supra note 3 at 215-16; Weinrib, “Poverty and Property”, supra note 3 at 807; Byrd & Hruschka, supra note 3 at 260-61.

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

30. Cf Epstein, Richard A, “Possession as the Root of Title” (1979) 13 Ga L Rev 1221 at 1228Google Scholar, citing Kelsen, Hans, “The Pure Theory of Law” (1934) 50 LQ Rev 474 at 494.Google Scholar

31. Aristotle, Nicomachean Ethics, translated by Ostwald, Martin (Upper Saddle River, NJ: Prentice Hall, 1999) at 1130b30–1132b20.Google Scholar

32. Weinrib, Ernest J, “Law as a Kantian Idea of Reason” (1987) 87 Colum L Rev 472 at 477CrossRefGoogle Scholar. At least, 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 “provisional” in the state of nature they need not be respected by lawmakers in the civil condition. Brudner, Alan, “Private Law and Kantian Right” (2011) 61 U Toronto LJ 279 at 295ffCrossRefGoogle Scholar; Waldron, Jeremy, “Kant’s Legal Positivism” (1996) 109 Harv L Rev 1535 at 1564-65.CrossRefGoogle Scholar

34. Weinrib, Ernest J, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995).Google Scholar

35. This would square with the traditional idea that courts are public institutions but may nevertheless adjudicate and enforce rights that remain private in character. Cf Kant, supra note 2 at 6:297; Weinrib, Ernest J, “Private Law and Public Right” (2011) 61 U Toronto LJ 191 CrossRefGoogle Scholar; Penner, James, “The State Duty to Support the Poor in Kant’s Doctrine of Right” (2010) 12 British J Pol & Int’l Relations 88 at 97.CrossRefGoogle Scholar

36. Ripstein, supra note 3 at 184-90.

37. See ibid at 156; Byrd & Hruschka, supra note 3 at 269.

38. Ripstein, supra note 3 at 185-87; Hart, HLA, “Are There Any Natural Rights?” (1955) 64 Phil Rev 175 at 185CrossRefGoogle Scholar; Rawls, John, “Legal Obligation and the Duty of Fair Play” in Hook, S, ed, Law and Philosophy: A Symposium (New York, NY: New York University Press, 1964).Google Scholar

39. See Ripstein, supra note 3 at 185-90. It is implausible to describe persons who have merely the potential to acquire property as having ‘opted in’ to the institutions of property. At most, they are the passive recipients of a benefit, and that cannot itself create duties, at least in a system of Kantian freedom.

40. Weinrib, “Poverty and Property”, supra note 3 at 807-10.

41. Ibid.

42. Or at least every ‘acquired’ right. See supra note 27.

43. Weinrib, “Poverty and Property”, supra note 3 at 809.

44. Ibid at 808.

45. Weinrib also formulates the problem with original acquisition as a problem for equality. There are of course various ways in which property acquisition obviously affects equality (for example, by increasing the acquirer’s wealth), but within the Kantian framework the only issue is equality of freedom. Thus, if original acquisition is unproblematic from the standpoint of Kantian freedom—as a civil condition that merely adjudicates, enforces, and systematizes or relates rights presupposes—then it is also consistent with Kantian equality. Each person has exactly the same (unproblematic) freedom.

46. Ripstein, supra note 3 at 190-98.

47. As Waldron puts it, Kant cannot “[think] that we ought to submit to the results of the legislative process … as a matter of pure procedural justice.” Waldron, “Kant’s Legal Positivism”, supra note 33 at 1564.

48. Ripstein, supra note 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 law countries, the rules of original acquisition are established by the adjudicative branch. But Ripstein’s account implies that in establishing original acquisition, courts perform a kind of legislative act, which differs from what they do in recognizing other private law rights.

53. The following tracks the interpretation developed by Benson, Peter. See especially “Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory” (1989) 10 Cardozo L Rev 1077.Google Scholar See also Weinrib, Ernest J, “Right and Advantage in Private Law” (1989) 10 Cardozo L Rev 1283 Google Scholar; Benson, Peter, “Misfeasance as an Organizing Normative Idea in Private Law” (2010) 60 U Toronto LJ 731 CrossRefGoogle Scholar, in which Benson presents an account of property rights consistent with the Hegelian standpoint. Note that this interpretation differs significantly from, for example, that of Jeremy Waldron, The Right to Private Property, supra note 1, ch 10, or Brudner, Alan, The Unity of the Common Law: Studies in Hegelian Jurisprudence (Berkeley: University of California Press, 1995).Google Scholar

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

55. Ibid at para 48.

56. Ibid at paras 42, 44.

57. Ibid at para 54.

58. Ibid at para 50.

59. Ripstein, supra note 3 at 97; Jacob Weinrib, supra note 3 at 225-30.

60. Ibid at 230; see also Ripstein, supra note 3 at 96-98, 154.

61. Ibid 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.

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 supra note 31 at 1111b-1113b.)

67. This is what explains the absence of a general duty to rescue as a matter of private right. Note that without the Kantian conception of freedom in mind, the obligation to respect original acquisition resembles a duty to rescue. See Waldron, The Right to Private Property, supra note 1 at 269-70; Munzer, Stephen R, “The Acquisition of Property Rights” (1991) 66 Notre Dame L Rev 661 at 670-72.Google Scholar

68. See Benson, “Misfeasance”, supra note 53.

69. See Part I, above.

70. Here Ripstein joins a debate in contemporary political philosophy as to whether original acquisition of property raises unique issues of justification. See, e.g., John Simmons, A, “Original-Acquisition Justifications of Private Property” (1994) 11 Social Phil & Pol’y 63 at 81-84CrossRefGoogle Scholar; Gaus, Gerald F & Lomasky, Loren E, “Are Property Rights Problematic?” (1990) 73 Monist 483.CrossRefGoogle Scholar

71. Ripstein, supra note 3 at 151-53; see also pages 16, 101.

72. Ibid at 153.

73. Ibid [emphasis added].

74. Ibid.

75. 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’ would arise if the purchaser happened to be (in contrast to the stamp dealer) factually or legally incapable of receiving offers for some reason.

76. Compare Gibbard, Alan, “Natural Property Rights” (1976) 10 Nous 77 at 78CrossRefGoogle Scholar (presuming that there 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 is thwarted by no other person—for example, when an object is struck by lightning.

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 bodily integrity less problematically ‘unilateral.’ Cf note 27, above.

79. Depending on how contract rights are understood. Arguably, the irrevocability of the promise gives rise to an analogous unilateralism problem. In contract law if, after promising, you change your mind and decide not to perform, the promisee can force you to do so, because she has acquired a right to that performance. From the perspective of the promisor who has revoked his consent, the promisee’s right may be characterized as ‘unilateral.’ See Penner, “State Duty”, supra note 35 at 97. But see Waldron, The Right to Private Property, supra note 1 at 267; Paul, Jeremy, “Can Rights Move Left?” (1990) Mich L Rev 1622 at 1630.CrossRefGoogle Scholar

80. Gye, Lumley v (1853) 2 El & Bl 216.Google Scholar In his most recent work, Weinrib contends that inducing breach of contract must be explained in terms that refer to public right. Weinrib, “Private Law and Public Right”, supra note 35.

81. Barnes v Addy (1874) 9 Ch App 244.Google Scholar

82. Part II, above.

83. Cf Waldron, The Right to Private Property, supra note 1 at 153-55; Gaus & Lomasky, supra note 70 at 486, 488-90; Gibbard, supra note 76 at 78.

84. See Penner, JE, The Idea of Property in Law (Oxford: Clarendon Press, 1997) at 68–70.Google Scholar

85. See Benson, “Misfeasance”, supra note 53.