The Natural Law Duty to Recognize Private Property Ownership: Kant's Theory of Property in His Doctrine of Right

Der Anfang des Eigentums ist schwer zu begreifen. [The origin of ownership is difficult to comprehend.]1 [End Page 217] I Introduction Property rights generally tend to be subordinated to other rights, such as the right to life and bodily integrity. A crime of violence evokes far more outrage than a simple pickpocketing. Slogans such as 'property is theft' and 'no blood for oil' abound, but one is at a loss to cite similar slogans downgrading life or limb. Socialist and communist states have felt most justified in depriving citizens of the right to own property, but they could not ignore the right to bodily integrity entirely. And modern scholars have claimed that property rights are not rights at all but, instead, depend on the state and its decisions on wealth allocation. Yet property rights are fundamental. Without recognition of ownership rights, no system of law is conceivable.2 No system of law is conceivable because without ownership rights no state is conceivable. It is the concept of ownership3 that defines a state's territory: it is this territory over which the state can exercise its power and, it is over the people occupying that territory that the power is exercised. The institution of property ownership is thus more fundamental than the state itself, because it is a necessary condition for the state's existence. Furthermore, the concept of ownership defines a state's territory in relation to other states as well. If they did not mutually recognize one another's territorial claims, states would constantly dispute the extent of their respective sovereign rights. The more powerful would attempt to allocate and reallocate territory by waging war, just as some despotic leaders attempt to allocate and reallocate ownership rights among their own people. If the acquisition of ownership rights is not recognized on an international level, all rights to external objects of choice will remain insecure,4 because states will depend on brute force for their protection from outside invasion. Perhaps for that reason, Kant devotes the largest single part of his Doctrine of Right to showing how individual ownership rights are possible.5 [End Page 218] If Kant can establish ownership rights for the individual, he can establish not only the basis of public law but, simultaneously, the basis of international law, or what should be called private law among states.6 By mutually recognizing acquisition and ownership, be it acquisition of individual property rights or acquisition of a state's territorial rights, we can avoid constant conflict and strive toward the single goal of the Doctrine of Right, namely perpetual peace. In what follows, we interpret Kant's arguments on property ownership within an unconventional framework for understanding the Doctrine of Right. We forge a new path in understanding aspects of the Doctrine of Right that have remained puzzling even for the best of past interpretations of that work. This article focuses on those puzzles. They arise in Kant's discussion of three leges – the lex iusti, the lex iuridica, and the lex iustitiæ distributivæ – which we believe have been incorrectly interpreted for 200 years.7 They also arise in understanding the architecture of the Doctrine of Right, which we believe has never been fully explained. Finally, and most significantly, they arise in understanding Kant's justification of the natural law right to own property. The purpose of this article is to show that Kant, correctly understood, does provide a powerful justification for the right to own private property. Kant's argumentation begins with the one assumption that we have an innate right to external freedom, or a right to move around freely without...

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