The A Priori of Ownership: Kant on Property
Immanuel Kant (1724–1804) is a highly significant resource for classical liberalism and libertarianism. Not only can one rely upon Kant's account of the foundations of morality to derive libertarian principles: Kant's own specifically political philosophy is written very much in a classical liberal vein that opposed paternalist government while emphasizing the centrality of the individual's property rights.
Kant's account of property rights is useful in explaining—from the perspective of human reason—how we determine what belongs to each, and why it is wrong to take what belongs to others. In this way, Kant renders a service akin to that which Aristotle, Aquinas, and Locke offer though their descriptions of natural law.
Notably, though, Kant undertakes his justification of property rights while relying upon a concept of human reason more in keeping with post-Newton, post-onto-theistic methods of moral argumentation. Kant grounds his account neither in alleged knowledge of the purposes of natural objects, nor in alleged knowledge of the existence of God. Rather, Kant points us to the universal conditions of human existence in this world.
Kant does not posit self-ownership. In the Metaphysics of Morals [Metaphysik der Sitten], Kant claims that each individual has only one innate right, that of freedom. It is because of this right that one's person may not be arbitrarily coerced, and not because of a right to property that covers self-ownership. "Freedom (independence from being constrained by another's choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity."
Property rights are, strictly speaking, acquired rights, not natural rights. If the issue of self-ownership does not arise, then it would be odd to say that one naturally owned this-or-that item in the world. An action on your part or on that of another is required for ownership to result. In this way, one's right to a given thing is acquired, not natural.
At the same time, the law that ultimately determines how one is to treat the property of others is not dependent on circumstances, but is a natural law. "Any action is right if it can co-exist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law." "Something external can be originally acquired only in conformity with the idea of a civil condition. . . ." This law of right and this law of just acquisition are a priori, and are in this sense "nature's law." This is thus the same sense in which property rights are natural rights.
Even here, though, one must keep in mind that Kant has made a major break with "classical" or Thomistic natural law theory. Kantian natural law is ultimately rooted in the reason of the rational being, and in what a rational being can consistently will as a binding principle for the actions of all such possible beings. In other words, such law is rooted in Kant's famous "Categorical Imperative," which beats in the heart of every human being—and is not directly to be found in nature at all.
Second, one must note that Kant rejects the Lockean account of initial acquisition of property. Kant agrees with Locke that individually un-owned goods can be acquired by individuals. Where Kant disagrees is over how the individual is to acquire goods from nature. For Kant, there is no proper grounding to the Lockean principle of acquisition through mixing one's labor. "The first working, enclosing, or, in general, transforming of a piece of land can furnish no title of acquisition to it. . . ."
Why would "mixing one's labor" with an un-owned good make it yours? Locke's answer seems to be that there is no other obvious candidate for grounding acquisition, since one cannot possibly require that everyone else consent to one's acquisition before one makes it. If one was morally required to wait for permission from all and sundry before picking the fruit from trees, or the flesh from bones, "moral" human beings would long ago have starved to death.
Kant does not see things in quite this way. Kant's view is that you are indeed to receive everyone else's consent to your property claims if they are to be fully valid. "[T]he rational title of acquisition can lie only in the idea of a will of all united a priori (necessarily to be united). . . ." However, Kant posits an 'in-between' type of ownership: provisional acquisition. One can provisionally acquire goods from nature without the consent of others, so long as one aims to achieve this consent as soon as possible.
One also has to give a sign that one aims to acquire goods from nature. For Kant, the goods would in fact always be land, so this would involve building fences, posting signs, etc. One must further have some capacity to defend the land acquired from the encroachments of others. But—regardless of the specific requirements—it is possible to provisionally acquire land without getting other's consent.
The consent that one must aim at is consent to a "civil condition": one must acquire land in the natural condition always with the aim of bringing the land into "a state," and thus under the laws of that state. The state, in this context, is a collection of individuals united under binding laws. The "government" is something else in Kant's terms: the ruler of the state. The ruler is one of the three main 'authorities' in the state, the other two being the legislature and the judiciary.
The third thing to note about Kant's account of property rights is that it doesn't offer a very detailed account of what counts as a good way to form a state, or of how the real or hypothetical origins of the state impact the rightness or wrongness of laws governing property rights that spring up later on.
We learn that one must get the consent of one's neighbors if one wants to finalize one's property claims—a consent ostensibly to be gotten by trading away one's recognition of their property claims—but we don't learn very much about what is to happen when two people claim the same parcel of land. The idea would seem to be that parties to this kind of conflict have a very powerful duty to come to some settlement as quickly as is possible. Moreover, those not directly involved also have some kind of authorization to force settlement as quickly as possible.
It would further seem that, although one must give weight to many factors in deciding what to settle for, the central factor will tend to be the physical power of the other party vis-à-vis one's own ("military" power). Thus we get something like peace negotiations,where both sides must consider the damage to themselves, to others, and to human civilization as a whole that might result from failing to agree to the other side's claims to land; but where it is not always unreasonable to reject such claims when the other side could not de facto make good on them through the use of violence. (Other limits on one's "duty to agree" are also to be gleaned from Kant's account, but this is the most notable one.)
What does all this tell us about ongoing conflicts about property within a given state? The king may want your land for his cronies—or, at least, the king may want the land that you and your neighbors had previously taken to be "your land"—but you may prefer to keep it. What to do if the legislature and the judiciary go along with the king's decision? How is this conflict over property claims to be resolved?
On Kant's view, there is very little that you can do as the potentially aggrieved land-owner. Kant's publicly-related opinion is that only passive resistance may be offered to the state (i.e., the people have some leeway to refuse to do what they are told to by the government, but one cannot try to overthrow the government or otherwise act violently against it). However, Kant is very clear that there are principles—natural law—governing how the state authorities ought to act.
Nonetheless, one can correctly judge that a wrong has occurred if there is an ownership title that goes back to an initial set of agreements that got further and further recognition by wider and wider groups of individuals, but where a state authority nonetheless acted contrary to what has been agreed. The government ought not do such things on Kant's account. Rather, the government is there to enforce pre-existing agreements (e.g., on property) in the face of internal and external aggressors. These agreements cannot be ignored for the sake of paternalist goals such as increased socio-economic equality or the moral betterment of the individual.
The individual must be free to dispose of his or her person and property as desired, so long as nothing is done that is incompatible with a like freedom for others; and this holds true even if the actions that the individual takes are immoral in the eyes of the community. "An external object which in terms of its substance belongs to someone is his property (dominium), in which all rights in this thing inhere (as accidents of a substance) and which the owner (dominus) can, accordingly, dispose of as he pleases (ius disponedi de re sua)."
What is the value of Kant's view?
From the start, we ought to note some confusions involved in Kant's view that detract from its value. Kant tends to identify 'the state' with 'the territorial nation-state,' and to assign this entity a strange importance over and above the lateral agreements of individuals negotiating with each to move from violent conflict over land to peaceful interaction. For example, Kant suggests that there must be a degree of unity among the religious faiths of the nation-state, and that the nation-state is an indissoluble entity.
Nonetheless, it must be said that Kant offers a powerful alternative to the Lockean account of initial acquisition. This is extremely significant, as Lockean property rights seem difficult to justify except on contingent, utilitarian grounds. For example, although one may argue that Lockean property rights are justified because respecting them tends to further economic growth, this does not tell us much about how to proceed once a desired level of growth has occurred. One may easily come to conclude that new considerations of utility obviate the need for fully respecting property rights.
This type of problem does not occur as readily with Kant. Kant's account is oriented much more strongly toward issues of fairness to individuals: specifically, toward describing universal conditions for fair treatment of others quite apart from the question of what increases overall societal "utility" or "happiness." And insofar as Kant's account is focused upon larger questions of economic development, the emphasis is on the development of humanity in terms of furthering our ability to achieve: an endless task.
Moreover, Kant's views on property are embedded within an overarching system of morality, aesthetics, anthropology, and philosophical theology that stands as one of the greatest accomplishments of the Modern era.
Potentially, then, when we turn to Kant on property rights, we may come to learn something not merely about determining property claims, or about the wrongness of their violation: we may also come to better appreciate the meaning of our struggle to "allow each to keep what is their own."
Awareness of this meaning provides welcome invigoration in times of statist banality and spiritual-deadness; and may well inform both the productive and the consumptive poles of creative action.
Unless noted otherwise, all quotations are from Immanuel Kant, The Metaphysics of Morals, tr. and ed. Mary Gregor, with an intro. by Roger Sullivan (Cambridge University Press, 1996).
See my 'Kant and Property Rights,' forthcoming, Journal of Libertarian Studies, Vol. 18, n. 3.
This is my own translation from the Metaphysik der Sitten.