For as long as history is recorded, senseless conflict and misery regularly transpired on the whims one head of state alone. During the 18th century many of the philosophers of the Enlightenment were concerned with ideas surrounding human beings’ autonomy and self-determination and challenged the idea of rule by a monarchy which had prevailed until then. One of the most significant, if not the most significant of these thinkers was Immanuel Kant. Kant’s work on property, and thus society and government, was not only revolutionary at the time but still remains as an underpinning in democratic thought.
His work on property begins with his formulation of the social contract, an implicit societal agreement regarding cooperation and subjugation to an authority, which comes following social contract philosophers such as Thomas Hobbes and John Locke. Hobbes believed that in the anarchic state of nature life is chaotic and violent, and humans agreed to a social contract of subjugation to an authority to escape this brutal condition. In Locke’s formulation of the social contract, members of society receive freedom and rights (while sacrificing some) in exchange for subjecting themselves to the rulership of society which enforces the protection of the freedom and rights of all members of society. In Kant’s social contract theory, the carefully reasoned formulations of freedom, property, and government are all derived consequentially from the existence of the will and it’s undeniable special autonomy.
Unlike Hobbes and Lockes’ social contract theories in which man enters the social contract for their greater material well being, for Kant, the entrance into a social contract and creation of society represents a moral right necessary to his doctrine of property. As noted Kant scholar Kenneth Baynes posits, according to Kant “consent to the social contract is not based upon considerations of rational self interest or prudence (Hobbes), nor upon a natural right to self-preservation and the guarantee of absolute property rights (Locke), but upon a moral obligation to institutionalize and make peremptory in a social contract property rights that in the state of nature have only a provisional character” Baynes (433). For Kant, the right to property and the freedom of the will are intertwined (as I will explain), and it is the institutionalization of property that is provided by entering the social contract and formation of society that is a moral right. The moral “rightness” of entering a social contract and its necessity to Kant’s conception of property can be better understood in his explanation of the acquisition of property which I will further explore.
Kant ventured to formulate an objective doctrine of property using reason alone (as opposed to one based off experience or subjective conditions), one in which “abstraction is made from all spatial and temporal conditions” [and would] apply to anyone “merely because and insofar as he is free and has practical reason”‘ (Kierney 302, quoting Kant). In his first conception of property, Kant posits that human beings have the unique capacity to use practical reason, and thus a unique capacity to extend their independent will on to objects. Considering that this special independent will is innately and internally self determined, we can derive that any imposition of an external will is violating its freedom. The notion of possession, then, “is the subjective condition of the possibility of the use of an object.” I have a right to possession only if I can claim that the use of an object by someone else, without my consent, constitutes an injury to me. By “injury” Kant means anything that diminishes my freedom” (Baynes 434). In other words, the idiosyncratic property of “property”, or the characteristic of the right to possession, materializes if the use of said object which I claim to be mine by another harms me (imposes my freedom). If I, bearing my independent will, am holding an apple, than taking it would be harming me by diminishing my freedom. This is what Kant calls physical possession. However, it does not extend to, say, apples on my kitchen table, whose use by another without my consent would also harm me.
While the of physical possession is relatively straightforward (if someone takes an apple out of my hand he is directly and unambiguously violating my freedom), what connects me to an object I claim as mine that isn’t physically in my possession? This is what Kant calls intelligible possession, the necessity of which he derives from that fact that I can be harmed by someones use of an object (which establishes the right to possession) even if I am not physically holding it. This, however, is problematic considering the concept of external freedom, as one’s unilateral willed acquisition of intelligible property would be limiting the choice (and thus freedom) of others (Baynes 435, and Tierney 303). In order to resolve this apparent contradiction we have to rely on Kant’s application of a permissive law.
A permissive law, defined by Kant scholar Mary Gregor, is a law which states “the conditions under which a general prohibition does not apply, and the permission to prohibit others from interfering with our exclusive use of an object is a limitation upon the prohibition, contained in the inherent right of freedom, against interfering with the freedom of activity of others”… [or in Kant’s own words, one which creates]…”a compulsion to do something one cannot be compelled to do”. (Baynes citing Gregor and Kant, 437). Kant asserts the application of a permissive law here as a “postulate of practical reason”, which he offers in two formulations:
“It is possible to have any and every external object of my will as my property (246)”.
“It is a duty of justice to act toward others so that external objects (usable objects) can also become someone’s property. (252)” (Baynes citing Kant 436).
This postulate thus aims to vindicate both the rightful acquisition and claim to property not held in physical possession simply by limiting the freedom of others to acquire and claim it. While for Kant his assertion of a permissive law here as a postulate of practical reason allows for intelligible possession, this ace in the hole Kant produces is viewed by Bayne’s as amounting to merely a “blunt assertion that external property rights (and, hence, intelligible possession) are possible” (436). Kant justifies this by further asserting that this restriction on the prohibition of limiting others’ freedom yields a greater freedom which wouldn’t have been possible otherwise: with the restricting of one’s unilateral will with the creation of society (even forcibly), we facilitate the freedom of will of everyone in society. Kant, now, says that in the state of nature possession is only provisional, and it is the institutionalization of peremptory possession that is part and parcel of entering in the social contract and the creation of society. Without a permissive law which restricts some freedom, there would be no moral right to leave the state of nature and the entering of the social tract and creating society (438).
In regard to the conditions surrounding the creation of society, what prevented the acquisition of another’s possession in the state of nature, Kant then reasons, must have been backed by an a priori united agreement amongst men. Unlike Locke’s theorized pre-societal community in which he considers men to have actually contracted to create society, for Kant this is not a historical event, as original common ownership itself would entail the existence of private property, which in turn requires an entrance into society. According to Kant, the united agreement is a rather a precondition for the social contract and must therefore be considered part of humans innate right (441). In other words, rights and obligations presuppose a pre-existing agreement, yet the existence of said agreement would require pre-existing rights. Further, the notion of ownerless property is likewise conceptually problematic: considering that property rights are based on agreements, without some original ownership, property rights would be impossible. Accordingly, Kant concludes that the original united agreement is “an idea that has objective (juridical-practical) reality” (Baynes 441). This of course is deeply problematic, however, as he conjures this scenario out of thin air: he concedes that it didn’t happen, yet posits that it is conceptually or theoretically sound. It’s unclear how or why we should accept the counterfactual nature of his theory on the basis of reason, as it represents a gap in his chain of reasoning.
Reflecting a defense of his reasoning, Kant reformulates his conception of the logistics of acquisition. While thus far bearing loosely with Locke and asserting that the earth is naturally a common possession to all man, and the characteristic “property” is established when one uses his will and mixes it with an object, Kant diverges. From here on considering property rights as consisting of a relation between people (as opposed between people and objects), Kant further believes that in order to have moral authority, one needs consent, and rightful acquisition is thus the right to exclude others from an objects use, which requires their consent (Baynes 442). However, after modifying his stance, Kant likewise doesn’t view this consent as taking place historically, he instead uses this as the idea of reason which is the precondition of the social contract and the formation of society.
Considering that he is by his own admission using reason from the ground up, Kant’s framework ultimately falls short, as we are forced to accept some of his seemingly arbitrary postulates to repair it simply because he says they are so. Further, Kant refers to the theoretical united agreement as an concept of objective reality, yet it is by his admission, totally fiction. However, despite its shortcomings, Kant’s work on property is still strong conceptually and is remarkable in that it almost succeeds in establishing freedom, property, and government sequentially from the existence and primacy of the will while using (almost) reason alone.
Baynes, Kenneth. “Kant on Property Rights and the Social Contract.” Monist, vol. 72, no. 3, 1989, pp. 433–453., doi:10.5840/monist198972319.
Tierney, Brian. “Kant on Property: The Problem of Permissive Law.” Journal of the History of Ideas, vol. 62, no. 2, 2001, p. 301., doi:10.2307/3654360.
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