Hegel's Philosophy of Right
A: Possession - B: Use - C: Alienation
§ 41
A person must translate his freedom into an external sphere in order to exist as Idea. Personality is the first, still wholly abstract, determination of the absolute and infinite will, and therefore this sphere distinct from the person, the sphere capable of embodying his freedom, is likewise determined as what is immediately different and separable from him.
Addition: The rationale of property is to be found not in the satisfaction of needs but in the supersession of the pure subjectivity of personality. In his property a person exists for the first time as reason. Even if my freedom is here realised first of all in an external thing, and so falsely realised, nevertheless abstract personality in its immediacy can have no other embodiment save one characterised by immediacy.
§ 42
What is immediately different from free mind is that which, both for mind and in itself, is the external pure and simple, a thing, something not free, not personal, without rights.
Remark: 'Thing', like 'the objective', has two opposed meanings. If we say 'that's the thing' or 'the thing is what matters, not the person', 'thing' means what is substantive. On the other hand, when 'thing' is contrasted with 'Person' as such, not with the particular subject, it means the opposite of what is substantive, i.e. that whose determinate character lies in its pure externality. From the point of view of free mind, which must, of course, be distinguished from mere consciousness, the external is external absolutely, and it is for this reason that the determinate character assigned to nature by the concept is inherent externality.
Addition: Since a thing lacks subjectivity, it is external not merely to the subject but to itself. Space and time are external in this way. As sentient, I am myself external, spatial, and temporal. As receptive of sensuous intuitions, I receive them from something which is external to itself. An animal can intuit, but the soul of an animal has for its object not its soul, itself, but something external.
§ 43
As the concept in its immediacy, and so as in essence a unit, a person has a natural existence partly within himself and partly of such a kind that he is related to it as to an external world. It is only these things in their immediacy as things, not what they are capable of becoming through the mediation of the will, i.e. things with determinate characteristics, which are in question here where the topic under discussion is personality, itself at this point still in its most elementary immediacy.
Remark: Mental aptitudes, erudition, artistic skill, even things ecclesiastical (like sermons, masses, prayers, consecration of votive objects), inventions, and so forth, become subjects of a contract, brought on to a parity, through being bought and sold, with things recognised as things. It may be asked whether the artist, scholar, &c., is from the legal point of view in possession of his art, erudition, ability to preach a sermon, sing a mass, &c., that is, whether such attainments are 'things'. We may hesitate to call such abilities, attainments, aptitudes, &c., 'things', for while possession of these may be the subject of business dealings and contracts, as if they were things, there is also something inward and mental about it, and for this reason the Understanding may be in perplexity about how to describe such possession in legal terms, because its field of vision is as limited to the dilemma that this is 'either a thing or not a thing' as to the dilemma 'either finite or infinite'. Attainments, erudition, talents, and so forth, are, of course, owned by free mind and are some thing internal and not external to it, but even so, by expressing them it may embody them in something external and alienate them (see below), and in this way they are put into the category of 'things'. Therefore the are not immediate at the start but only acquire this character through the mediation of mind which reduces its inner possessions to immediacy and externality.
It was an unjustifiable and unethical proviso of Roman law that children were from their father's point of view 'things'. Hence he was legally the owner of his children, although, of course, he still also stood to them in the ethical relation of love (though this relation must have been much weakened by the injustice of his legal position). Here, then, the two qualities 'being a thing' and 'not being a thing' were united, though quite wrongly.
In the sphere of abstract right, we are concerned only with the person as person, and therefore with the particular (which is indispensable if the person's freedom is to have scope and reality) only in so far as it is something separable from the person and immediately different from him, no matter whether this separability constitutes the essential nature of the particular, or whether the particular receives it only through the mediation of the subjective will. Hence in this sphere we are concerned with mental aptitudes, erudition, &c., only in so far as they are possessions in a legal sense; we have not to treat here the possession of our body and mind which we can achieve through education, study, habit, &c., and which exists as an inward property of mind. But it is not until we come to deal with alienations that we need begin to speak of the transition of such mental property into the external world where it falls under the category of property in the legal sense.
§ 44
A person has as his substantive end the right of putting his will into any and every thing and thereby making it his, because it has no such end in itself and derives its destiny and soul from his will. This is the absolute right of appropriation which man has over all 'things'.
Remark: The so-called 'philosophy' which attributes reality in the sense of self-subsistence and genuine independent self-enclosed existence to unmediated single things, to the non-personal, is directly contradicted by the free will's attitude to these things. The same is true of the other philosophy which assures us that mind cannot apprehend the truth or know the nature of the thing-in-itself. While so-called 'external' things have a show of self-subsistence for consciousness, intuition, and representative thinking, the free will idealises that type of actuality and so is its truth.
Addition: All things may become man's property, because man is free will and consequently is absolute, while what stands over against him lacks this quality. Thus everyone has the right to make his will the thing or to make the thing his will, or in other words to destroy the thing and transform it into his own; for the thing, as externality, has no end in itself; it is not infinite self-relation but something external to itself. A living thing too (an animal) is external to itself in this way and is so far itself a thing. Only the will is the infinite, absolute in contrast with everything other than itself, while that other is on its side only relative. Thus 'to appropriate' means at bottom only to manifest the pre-eminence of my will over the thing and to prove that it is not absolute, is not an end in itself. This is made manifest when I endow the thing with some purpose not directly its own. When the living thing becomes my property, I give to it a soul other than the one it had before, I give to it my soul. The free will, therefore, is the idealism which does not take things as they are to be absolute, while realism pronounces them to be absolute, even if they only exist in the form of finitude. Even an animal has gone beyond this realist philosophy since it devours things and so proves that they are not absolutely self-subsistent.
§ 45
To have power over a thing ab extra constitutes possession. The particular aspect of the matter, the fact that I make something my own as a result of my natural need, impulse, and caprice, is the particular interest satisfied by possession. But I as free will am an object to myself in what I possess and thereby also for the first time am an actual will, and this is the aspect which constitutes the category of property, the true and right factor in possession.
Remark: If emphasis is placed on my needs, then the possession of property appears as a means to their satisfaction, but the true position is that, from the standpoint of freedom, property is the first embodiment of freedom and so is in itself a substantive end.
§ 46
Since my will, as the will of a person, and so as a single will, becomes objective to me in property, property acquires the character of private property; and common property of such a nature that it may be owned by separate persons acquires the character of an inherently dissoluble partnership in which the retention of my share is explicitly a matter of my arbitrary preference.
Remark: The nature of the elements makes it impossible for the use of them to become so particularised as to be the private possession of anyone. In the Roman agrarian laws there was a clash between public and private ownership of land. The latter is the more rational and therefore had to be given preference even at the expense of other rights.
One factor in family testamentary trusts contravenes the right of personality and so the right of private property. But the specific characteristics pertaining to private property may have to be subordinated to a higher sphere of right (e.g. to a society or the state), as happens, for instance, when private property is put into the hands of a so-called 'artificial' person and into mortmain. Still, such exceptions to private property cannot be grounded in chance, in private caprice, or private advantage, but only in the rational organism of the state.
The general principle that underlies Plato's ideal state violates the right of personality by forbidding the holding of private property. The idea of a pious or friendly and even a compulsory brotherhood of men holding their goods in common and rejecting the principle of private property may readily present itself to the disposition which mistakes the true nature of the freedom of mind and right and fails to apprehend it in its determinate moments. As for the moral or religious view behind this idea, when Epicurus's friends proposed to form such an association holding goods in common, he forbade them, precisely on the ground that their proposal betrayed distrust and that those who distrusted each other were not friends.
Addition: In property my will is the will of a person; but a person is a unit and so property becomes the personality of this unitary will. Since property is the means whereby I give my will an embodiment, property must also have the character of being 'this' or 'mine'. This is the important doctrine of the necessity of private property. While the state may cancel private ownership in exceptional cases, it is nevertheless only the state that can do this; but frequently, especially in our day, private property has been re-introduced by the state. For example, many states have dissolved the monasteries, and rightly, for in the last resort no community has so good a right to property as a person has.
§ 47
As a person, I am myself an immediate individual; if we give further precision to this expression, it means in the first instance that I am alive in this bodily organism which is my external existence) universal in content and undivided, the real pre-condition of every further determined mode of existences But, all the same, as person, I possess my life and my body, like other things, only in so far as my will is in them.
Remark: The fact that, considered as existing not as the concept explicit but only as the concept in its immediacy, I am alive and have a bodily organism, depends on the concept of life and on the concept of mind as soul — on moments which are taken over here from the Philosophy of Nature and from Anthropology.
I possess the members of my body, my life, only so long as I will to possess them. An animal cannot maim or destroy itself, but a man can.
Addition: Animals are in possession of themselves; their soul is in possession of their body. But they have no right to their life, because they do not will it.
§ 48
In so far as the body is an immediate existent, it is not in conformity with mind. If it is to be the willing organ and soul-endowed instruments of mind, it must first be taken into possession by mind (see § 57). But from the point of view of others, I am in essence a free entity in my body while my possession of it is still immediate.
Remark: It is only because I am alive as a free entity in my body that this living existent ought not to be misused by being made a beast of burden. While I am alive, my soul (the concept and, to use a higher term, the free entity) and my body are not separated; my body is the embodiment of my freedom and it is with my body that I feel. It is therefore only abstract sophistical reasoning which can so distinguish body and soul as to hold that the 'thing-in-itself', the soul, is not touched or attacked if the body is maltreated and the existent embodiment of personality is subjected to the power of another. I can withdraw into myself out of my bodily existence and make my body something external to myself; particular feelings I can regard as something outside me and in chains I can still be free. But this is my will; so far as others are concerned, I am in my body. To be free from the point of view of others is identical with being free in my determinate existence. If another does violence to my body, he does violence to me.
If my body is touched or suffers violence, then, because I feel, I am touched myself actually, here and now. This creates the distinction between personal injury and damage to my external property, for in such property my will is not actually present in this direct fashion.
§ 49
In relation to external things, the rational aspect is that I possess property, but the particular aspect comprises subjective aims, needs, arbitrariness, abilities, external circumstances, and so forth (see § 45). On these mere possession as such depends, but this particular aspect has in this sphere of abstract personality not yet been established as identical with freedom. What and how much I possess, therefore, is a matter of indifference so far as rights are concerned.
Remark: If at this stage we may speak of more persons than one, although no such distinction has yet been made, then we may say that in respect of their personality persons are equal. But this is an empty tautology, for the person, as something abstract, has not yet been particularised or established as distinct in some specific way.
'Equality' is the abstract identity of the Understanding; reflective thought and all kinds of intellectual mediocrity stumble on it at once when they are confronted by the relation of unity to a difference. At this point, equality could only be the equality of abstract persons as such, and therefore the whole field of possession, this terrain of inequality, falls outside it.
The demand sometimes made for an equal division of land, and other available resources too, is an intellectualism all the more empty and superficial in that at the heart of particular differences there lies not only the external contingency of nature but also the whole compass of mind, endlessly particularised and differentiated, and the rationality of mind developed into an organism.
We may not speak of the injustice of nature in the unequal distribution of possessions and resources, since nature is not free and therefore is neither just nor unjust. That every one ought to have subsistence enough for his needs is a moral wish and thus vaguely expressed is well enough meant, but like anything that is only well meant it lacks objectivity. On the other hand, subsistence is not the same as possession and belongs to another sphere, i.e. to civil society.
Addition: The equality which might be set up, e.g. in connection with the distribution of goods, would all the same soon be destroyed again, because wealth depends on diligence. But if a project cannot be executed, it ought not to be executed. Of course men are equal, but only qua persons, that is, with respect only to the source from which possession springs; the inference from this is that everyone must have property. Hence, if you wish to talk of equality, it is this equality which you must have in view. But this equality is something apart from the fixing of particular amounts, from the question of how much I own. From this point of view it is false to maintain that justice requires everyone's property to be equal, since it requires only that everyone shall own property. The truth is that particularity is just the sphere where there is room for inequality and where equality would be wrong. True enough, men often lust after the goods of others, but that is just doing wrong, since right is that which remains indifferent to particularity.
§ 50
The principle that a thing belongs to the person who happens to be the first in time to take it into his possession is immediately self-explanatory and superfluous, because a second person cannot take into his possession what is already the property of another.
Addition: The points made so far have been mainly concerned with the proposition that personality must be embodied in property. Now the fact that the first person to take possession of a thing should also be its owner is an inference from what has been said. The first is the rightful owner, however, not because he is the first but because he is a free will, for it is only by another's succeeding him that he becomes the first.
§ 51
Since property is the embodiment of personality, my inward idea and will that something is to be mine is not enough to make it my property; to secure this end occupancy is requisite. The embodiment which my willing thereby attains involves its recognisability by others. The fact that a thing of which I can take possession is a res nullius is (see § 50) a self-explanatory negative condition of occupancy, or rather it has a bearing on the anticipated relation to others.
Addition: A person puts his will into a thing - that is just the concept of property, and the next step is the realisation of this concept. The inner act of will which consists in saying that something is mine must also become recognisable by others. If I make a thing mine, I give to it a predicate, 'mine', which must appear in it in an external form and must not simply remain in my inner will. It often happens that children lay stress on their prior willing in preference to the seizure of a thing by others. But for adults this willing is not sufficient, since the form of subjectivity must be removed and must work its way beyond the subjective to objectivity.
§ 52
Occupancy makes the matter of the thing my property, since matter in itself does not belong to itself.
Remark: Matter offers resistance to me — and matter is nothing except the resistance it offers to me — that is, it presents itself to my mind as something abstractly independent only when my mind is taken abstractly as sensations (Sense-perception perversely takes mind as sensation for the concrete and mind as reason for the abstract.) In relation to the will and property, however, this independence of matter has no truth. Occupancy, as an external activity whereby we actualise our universal right of appropriating natural objects, comes to be conditioned by physical strength, cunning, dexterity, the means of one kind or another whereby we take physical possession of things. Owing to the qualitative differences between natural objects, mastery and occupancy of these has an infinite variety of meanings and involves a restriction and contingency that is just as infinite. Apart from that, a 'kind' of thing, or an element as such, is not the correlative object of an individual person. Before it can become such and be appropriated, it must first be individualised into single parts, into a breath of air or a drink of water. In the fact that it is impossible to take possession of an external 'kind' of thing as such, or of an element, it is not the external physical impossibility which must be looked on as ultimate, but the fact that a person, as will, is characterised as individual, while as person he is at the same time immediate individuality; hence as person he is related to the external world as to single things (see Remark to § 13 and § 43).
Thus the mastery and external possession of things becomes, in ways that again are infinite, more or less indeterminate and incomplete. Yet matter is never without an essential form of its own and only because it has one is it anything. The more I appropriate this form, the more do I enter into actual possession of the thing. The consumption of food is an out and out alteration of its qualitative character, the character on the strength of which it was what it was before it was eaten. The training of my body in dexterity, like the training of my mind, is likewise a more or less complete occupancy and penetration of it. It is my mind which of all things I can make most completely my own. Yet this actual occupancy is different from property as such because property is complete as the work of the free will alone. In face of the free will, the thing retains no property in itself even though there still remains in possession, as an external relation to an object, something external. The empty abstraction of a matter without properties which, when a thing is my property, is supposed to remain outside me and the property of the thing, is one which thought must master.
Addition: In Science of Rights, § 19 A, maintains that the farmer has no right to his land as such but only to its products, to its 'accidents', not to its 'substance'; he may not prevent others from grazing cattle on it after harvest, unless, in addition to cultivation rights, he has grazing rights for cattle of his own. Thus, Fichte has raised the question whether the matter too belongs to me if I impose a form on it. On his argument, after I had made a golden cup, it would have to be open to someone else to take the gold provided that in so doing he did no damage to my work. However separable the matter may be in thought, still in reality this distinction is an empty subtlety, because, if I take possession of a field and plough it, it is not only the furrow that is my property, but the rest as well, the furrowed earth. That is to say, I will to take this matter, the whole thing, into my possession; the matter therefore does not remain a res nullius nor does it remain I its own property. Further, even if the matter remains external to the form which I have given to the object, the form is precisely a sign that I claim the thing as mine. The thing therefore does not remain external to my will or outside what I have willed. Hence there is nothing left to be taken into possession by someone else.
§ 53
Property has its modifications determined in the course of the will's relation to the thing. This relation is
(A) taking possession of the thing directly (here it is in the thing qua something positive that the will has its embodiment);
(B) use (the thing is negative in contrast with the will and so it is in the thing as something to be negated that the will has its embodiment);
(C) alienation, the reflection of the will back from the thing into itself.
These three are respectively the positive, negative, and infinite judgments of the will on the thing.
§ 54
We take possession of a thing [a] by directly grasping it physically, [b] by forming it, and [c] by merely marking it as ours.
Addition: These modes of taking possession involve the advance from the category of singularity to that of universality. It is only of a single thing that we can take possession physically, while marking a thing as mine is taking possession of it in idea. In the latter case I have an idea of the thing and mean that the thing as a whole is mine, not simply the part which I can take into my possession physically.
§ 55
[a] From the point of view of sensation, to grasp a thing physically is the most complete of these modes, because then I am directly present in this possession, and therefore my will is recognisable in it. But at bottom this mode is only subjective, temporary, and seriously restricted in scope, as well as by the qualitative nature of the things grasped. — As a result of the connection which I may effect between something and things which have already become my property in other ways, or into which something may otherwise be accidentally brought, the scope of this method is somewhat enlarged, and the same result is produced by other means also.
Remark: Mechanical forces, weapons, tools, extend the range of my power. Connections between my property and something else may be regarded as making it more easily possible for me than for another owner, or sometimes possible for me alone, to take possession of something or to make use of it. Instances of such connections are that my land may be on the seashore, or on a river bank; or my estate may march with hunting country or pasture or land useful for some other purposes stone or other mineral deposits may be under my fields; there may be treasure in or under my ground, and so on. The same is true of connections made by chance and subsequent to possession, like some of what are called 'natural accessions', such as alluvial deposits, &c., and jetsam. (Fetura is an accession to my wealth too, but the connection here is an organic one, it is not a case of a thing being added ab extra to another thing already in my possession; and therefore fetura is of a type quite different from the other accessions.) Alternatively, the addition to my property may be looked upon as a non-self-subsistent accident of the thing to which it has been added. In every case, however, these are external conjunctions whose bond of connection is neither life nor the concept. It devolves, therefore, on the Understanding to adduce and weigh their pros and cons, and on positive legislation to make decisions about them in accordance with the extent to which the relation between the things conjoined has or has not any essentiality.
Addition: Taking possession is always piece-meal in type; I take into possession no more than what I touch with my body. But here comes the second point: external objects extend further than I can grasp. Therefore, whatever I have in my grasp is linked with something else. It is with my hand that I manage to take possession of a thing, but its reach can be extended. What I hold in my hand - that magnificent tool which no animal possesses - can itself be a means to gripping something else. If I am in possession of something, the intellect immediately draws the inference that it is not only the immediate object in my grasp which is mine but also what is connected with it. At this point positive law must enact its statutes since nothing further on this topic can be deduced from the concept.
§ 56
[b] When I impose a form on something, the thing's determinant character as mine acquires an independent externality and ceases to be restricted to my presence here and now and to the direct presence of my awareness and will.
Remark: To impose a form on a thing is the mode of taking possession most in conformity with the Idea to this extent, that it implies a union of subject and object, although it varies endlessly with the qualitative character of the objects and the variety of subjective aims.
Under this head there also falls the formation of the organic. What I do to the organic does not remain external to it but is assimilated by it. Examples are the tilling of the soil, the cultivation of plants, the taming in and feeding of animals, the preservation of game, as well as contrivances for utilising raw materials or the forces of nature and processes for making one material produce effects on another, and so forth.
Addition: This forming of an object may in practice assume the most various guises. In farming land I impose a form on it. Where inorganic objects are concerned, the imposition of a form is not always direct. For example, if I build a windmill, I have not imposed a form on the air, but I have formed something for utilising the air, though I am not on that account at liberty to call the air mine, since I have not formed the air itself. Further, the preserving of game may be regarded as a way of forming game, for we preserve it with a view to maintaining the species. [The same is true of] the taming of animals, only of course that is a more direct way of forming them and it depends on me to a greater extent.
§ 57.
Man, pursuant to his immediate existence within himself, is something natural, external to his concept. It is only through the development of his own body and mind, essentially through his self-consciousness's apprehension of itself as free, that he takes possession of himself and becomes his own property and no one else's.
Remark: This taking possession of oneself, looked at from the opposite point view, is the translation into actuality of what one is according to one's concept, i.e. a potentiality, capacity, potency. In that translation one's self-consciousness for the first time becomes established as one's own, as one's object also and distinct from self-consciousness pure and simple, and thereby capable of taking the form of a 'thing' (compare Remark to § 43).
The alleged justification of slavery (by reference to all its proximate beginnings through physical force, capture in war, saving and preservation of life, upkeep, education, philanthropy, the slave's own acquiescence, and so forth), as well as the justification of a slave-ownership as simple lordship in general, and all historical views of the justice of slavery and lordship, depend on regarding man as a natural entity pure and simple, as an existent not in conformity with its concept (an existent also to which arbitrariness is appropriate). The argument for the absolute injustice of slavery, on the other hand, adheres to the concept of man as mind, as something inherently free. This view is one-sided in regarding man as free by nature, or in other words it takes the concept as such in its immediacy, not the Idea, as the truth. This antinomy rests, like all others, on the abstract thinking which asserts both the moments of an Idea in separation from one another and clings to each of them in its independence and so in its inadequacy to the Idea and in its falsity. Free mind consists precisely (see § 21) in its being no longer implicit or as concept alone, but in its transcending this formal stage of its being, and eo ipso its immediate natural existence, until the existence which it gives to itself is one which is solely its own and free. The side of the antinomy which asserts the concept of freedom therefore has the merit of implying the absolute starting-point, though only the starting-point, for the discovery of truth, while the other side goes no further than existence without the concept and therefore excludes the outlook of rationality and right altogether. The position of the free will, with which right and the science of right begin, is already in advance of the false position at which man, as a natural entity and only the concept implicit, is for that reason capable of being enslaved. This false, comparatively primitive, phenomenon of slavery is one which befalls mind when mind is only at the level of consciousness. The dialectic of the concept and of the purely immediate consciousness of freedom brings about at that point the fight for recognition and the relationship of master and slave. But that objective mind, the content of the right, should no longer be apprehended in its subjective concept alone, and consequently that man's absolute unfitness for slavery should no longer be apprehended as a mere 'ought to be', is something which does not come home to our minds until we recognise that the Idea of freedom is genuinely actual only as the state.
Addition: To adhere to man's absolute freedom - one aspect of the matter - is eo ipso to condemn slavery. Yet if a man is a slave, his own will is responsible for his slavery, just as it is its will which is responsible if a people is subjugated. Hence the wrong of slavery lies at the door, not simply of enslavers or conquerors, but of the slaves and the conquered themselves. Slavery occurs in man's transition from the state of nature to genuinely ethical conditions; it occurs in a world where a wrong is still right. At that stage wrong has validity and so is necessarily in place.
§ 58
[c] The mode of taking possession which in itself is not actual but is only representative of my will is to mark the thing, and the meaning of the mark is supposed to be that I have put my will into the thing. In its objective scope and its meaning, this mode of taking possession is very indeterminate.
Addition: To take possession by marking a thing is of all sorts of taking possession the most complete, since the mark is implicitly at work to some extent in the other sorts too. When I grasp a thing or form it, this also means in the last resort that I mark it, and mark it for others, in order to exclude them and show that I have put my will into the thing. The notion of the mark, that is to say, is that the thing does not count as the thing which it is but as what it is supposed to signify. A cockade, for instance, signifies citizenship of a state, though the colour has no connection with the nation and represents not itself but the nation. By being able to give a mark to things and thereby to acquire them, man just shows his mastery over things.
§ 59
By being taken into possession, the thing acquires the predicate 'mine' and my will is related to it positively. Within this identity, the thing is equally established as something negative, and my will in this situation is a particular will, i.e. need, inclination, and so forth. Yet my need, as the particular aspect of a single will, is the positive element which finds satisfaction, and the thing, as something negative in itself, exists only for my need and is at its service. — The use of the thing is my need being externally realised through the change, destruction, and consumption of the thing. The thing thereby stands revealed as naturally self-less and so fulfils its destiny.
Remark: The fact that property is realised and actualised only in use floats before the minds of those who look upon property as derelict and a res nullius if it is not being put to any use, and who excuse its unlawful occupancy on the ground that it has not been used by its owner. But the owner's will, in accordance with which a thing is his, is the primary substantive basis of property; use is a further modification of property, secondary to that universal basis, and is only its manifestation and particular mode.
Addition: While in marking a thing I am taking possession in a universal way of the thing as such, the use of it implies a still more universal relation to the thing, because, when it is used, the thing in its particularity is not recognised but is negated by the user. When I mark a thing as mine, I attribute to it the universal predicate 'mine' and 'recognise' its particular characteristics in the sense that I do not interfere with them. But when I use it I 'negate' its particular characteristics in the sense that I change them to suit my purpose. To mark land as mine by fencing it does not change its character, but to use it, e.g. by planting it, does. The thing is reduced to a means to the satisfaction of my need. When I and the thing meet, an identity is established and therefore one or other must lose its qualitative character. But I am alive, a being who wills and is truly affirmative; the thing on the other hand is something physical. Therefore the thing must b destroyed while I preserve myself. This, in general terms, is the prerogative and the principle of the organic.
§ 60
To use a thing by grasping it directly is in itself to take possession of a single thing here and now. But if my use of it is grounded on a persistent need, and if I make repeated use of a product which continually renews itself, restricting my use if necessary to safeguard that renewal, then these and other circumstances transform the direct single grasp of the thing into a mark, intended to signify that I am taking it into my possession in a universal way, and thereby taking possession of the elemental or organic basis of such products, or of anything else that conditions them.
§ 61
Since the substance of the thing which is my property is, if we take the thing by itself, its externality, i.e. its non-substantiality — in contrast with me it is not an end in itself (see § 42) and since in my use or employment of it this externality is realised, it follows that my full use or employment of a thing is the thing in its entirety, so that if I have the full use of the thing I am its owner. Over and above the entirety of its use, there is nothing left of the thing which could be the property of another.
Addition: The relation of use to property is the same as that of substance to accident, inner to outer, force to its manifestation. Just as force exists only in manifesting itself, so arable land is amble land only in bearing crops. Thus he who has the use of arable land is the owner of the whole, and it is an empty abstraction to recognise still another property in the object itself.
§ 62
My merely partial or temporary use of a thing, like my partial or temporary possession of it (a possession which itself is simply the partial or temporary possibility of using it) is therefore to be distinguished from ownership of the thing itself. If the whole and entire use of a thing were mine, while the abstract ownership was supposed to be someone else's, then the thing as mine would be penetrated through and through by my will (see §s 52 and 61), and at the same time there would remain in the thing something impenetrable by me, namely the will, the empty will, of another. As a positive will, I would be at one and the same time objective and not objective to myself in the thing — an absolute contradiction. Ownership therefore is in essence free and complete.
Remark: To distinguish between the right to the whole and entire use of a thing and ownership in the abstract is the work of the empty Understanding for which the Idea — i.e. in this instance the unity of (a) ownership (or even the person's will as such) and (b) its realisation — is not the truth, but for which these two moments in their separation from one another pass as something which is true. This distinction, then, as a relation in the world of fact, is that of an overlord to nothing, and this might be called an 'insanity of personality'(if we may mean by 'insanity' not merely the presence of a direct contradiction between a man's purely subjective ideas and the actual facts of his life), because 'mine' as applied to a single object would have to mean the direct presence in it of both my single exclusive will and also the single exclusive will of someone else.
In the Institutes we read: 'usufruct is the right of using another's property, of enjoying its fruits short of waste of its substance ... Nevertheless, in order that properties should not remain wholly unused through the entire cessation of usufruct, the law has been pleased to ordain that in certain circumstances the right of usufruct shall be annulled and that the owner proper shall resume the land.' Placuit! As if it were in the first instance a whim or a fiat to make this proviso and thereby give some sense to that empty distinction! A proprietas SEMPER abscedente usufructu would not merely be ututilis, it would be no Proprietas at all.
To examine other distinctions in property itself, e.g. between res mancipi and nec mancipi, dominium quiritarium and bonitarium, &C., is inappropriate here since they have no bearing on any of the modifications of property determined by the concept and are merely tit-bits culled from the history of the right of property. The empty distinction discussed above, however, is in a way contained in the relations of dominium directum and dominium utile, in the contractus emphyteuticus, in the further relations involved in estates in fee with the ground rents and other rents, dues, villeinage, &c., entailed in their sundry modifications, in cases where such burdens are irredeemable. But from another point of view, these relations preclude that distinction. They preclude it in so far as burdens are entailed in dominium utile, with the result that dominium directum becomes at the same time a dominium utile. Were there nothing in these two relationships except that distinction in its rigid abstraction, then in them we would not have two overlords (domini) in the strict sense, but an owner on the one hand and an overlord who was the overlord of nothing on the other. But on the score of the burdens imposed there are two owners standing in relation to each other. Although their relation is not that of being common owners of a property, still the transition from it to common ownership is very easy — a transition which has already begun in dominium directum when the yield of the property is calculated and looked upon as the essential thing, while that incalculable factor in the overlordship of a property, the factor which has perhaps been regarded as the honourable thing about property, is subordinated to the utile which here is the rational factor.
It is about a millennium and a half since the freedom of personality began through the spread of Christianity to blossom and gain recognition as a universal principle from a part, though still a small part, of the human race. But it was only yesterday, we might say, that the principle, of the freedom of property became recognised in some places. This example from history may serve to rebuke the impatience of opinion and to show the length of time that mind requires for progress in its self-consciousness.
§ 63
A thing in use is a single thing determined quantitatively and qualitatively and related to a specific need. But its specific utility, being quantitatively determinate, is at the same time comparable with [the specific utility of] other things of like utility. Similarly, the specific need which it satisfies is at the same time need in general and thus is comparable on its particular side with other needs, while the thing in virtue of the same considerations is comparable with things meeting other needs. This, the thing's universality, whose simple determinate character arises from the particularity of the thing, so that it is eo ipso abstracted from the thing's specific quality, is the thing's value, wherein its genuine substantiality becomes determinate and an object of consciousness. As full owner of the thing, I am eo ipso owner of its value as well as of its use.
Remark: The distinctive character of the property of a feudal tenant is that he is supposed to be the owner of the use only, not of the value of the thing.
Addition: The qualitative disappears here in the form of the quantitative; that is to say, when I speak of 'need', I use a term under which the most various things may be brought; they share it in common and so become commensurable. The advance of thought here therefore is from a thing's specific quality to a character which is indifferent to quality, i.e. quantity. A similar thing occurs in mathematics. The definition of a circle, an ellipse, and a parabola reveals their specific difference. But in spite of this, the distinction between these different curves is determined purely quantitatively, i.e. in such a way that the only important thing is a purely quantitative difference which rests on their coefficients alone, on purely empirical magnitudes. In property, the quantitative character which emerges from the qualitative is value. Here the qualitative provides the quantity with its quantum and in consequence is as much preserved in the quantity as superseded by it. If we consider the concept of value, we must look on the thing itself only as a symbol; it counts not as itself but as what it is worth. A bill of exchange, for instance, does not represent what it really is - paper; it is only a symbol of another universal - value. The value of a thing may be very heterogeneous; it depends on need. But if you want to express the value of a thing not in a specific case but in the abstract, then it is money which expresses this. Money represents any and every thing, though since it does not portray the need itself but is only a symbol of it, it is itself controlled by the specific value [of the commodity]. Money, as an abstraction, merely expresses this value. It is possible in principle to be the owner of a thing without at the same time being the owner of its value. If a family can neither sell nor pawn its goods, it is not the owner of their value. But since this form of property is not in accordance with the concept of property, such restrictions on ownership (feudal tenure, testamentary trusts) are mostly in course of disappearing.
§ 64
The form given to a possession and its mark are themselves externalities but for the subjective presence of the will which alone constitutes the meaning and value of externalities. This presence, however, which is use, employment, or some other mode in which the will expresses itself, is an event in time, and what is objective in time is the continuance of this expression of the will. Without this the thing becomes a res nullius, because it has been deprived of the actuality of the will and possession. Therefore I gain or lose possession of property through prescription.
Remark: Prescription, therefore, has not been introduced into law solely from an external consideration running counter to right in the strict sense, i.e. with a view to truncating the disputes and confusions which old claims would introduce into the security of property. On the contrary, prescription rests at bottom on the specific character of property as 'real', on the fact that the will to possess something must express itself.
Public memorials are national property, or, more precisely, like works of art in general so far as their enjoyment is concerned, they have life and count as ends in themselves so long as they enshrine the spirit of remembrance and honour. If they lose this spirit, they become in this respect res nullius in the eyes of a nation and the private possession of the first comer, like e.g. the Greek and Egyptian works of art in Turkey.
The right of private property which the family of an author has in his publications dies out for a similar reason; such publications become res nullius in the sense that like public memorials, though in an opposite way, they become public property, and, by having their special handling of their topic copied, the private property of anyone.
Vacant land consecrated for a burial ground, or even to lie unused in perpetuity, embodies an empty absent arbitrary will. If such a will is infringed, nothing actual is infringed, and hence respect for it cannot be guaranteed.
Addition: Prescription rests on the presumption that I have ceased to regard the thing as mine. If a thing is to remain mine, my will must continue in it, and using it or keeping it safe shows this continuance. That public memorials may lose their value was frequently shown during the Reformation in the case of foundations, endowments, &c., for the Mass. The spirit of the old faith, i.e. of these foundations, had fled., and consequently they could be seized as private property.
§ 65
The reason I can alienate my property is that it is mine only in so far as I put my will into it. Hence I may abandon (derelinquere) as a res nullius anything that I have or yield it to the will of another and so into his possession, provided always that the thing in question is a thing external by nature.
Addition: While prescription is an alienation with no direct expression of the will to alienate, alienation proper is an expression of my will, of my will no longer to regard the thing as mine. The whole matter may also be so viewed that alienation is seen to be a true mode of taking possession. To take possession of the thing directly is the first moment in property. Use is likewise a way of acquiring property. The third moment then is the unity of these two, taking possession of the thing by alienating it. [Taking possession is positive acquisition. Use is the negation of a thing's Particular characteristics (see § 59). Alienation is the synthesis of Positive and negative; it is negative in that it involves spurning the thing altogether; it is positive because it is only a thing completely mine which I can so spurn.]
§ 66
Therefore those goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible. Such characteristics are my personality as such, my universal freedom of will, my ethical life, my religion.
Remark: The fact that what mind is in accordance with its concept or implicitly it also should be explicitly and existentially (the fact that thus mind should be a person, be capable of holding property, should have an ethical life, a religion) is the Idea which is itself the concept of mind. As causqa sui, i.e as free causality, mind is that cuius natura non potest concipi nisi existens.
It is just in this concept of mind as that which is what it is only through its own free causality and through its endless return into itself out of the natural immediacy of its existence, that there lies the possibility of a clash: i.e. what it is potentially it may not be actually (see § 57), and vice versa what it is actually (e.g. evil, in the case of the will) may be other than what it is potentially. Herein lies the possibility of the alienation of personality and its substantive being, whether this alienation occurs unconsciously or intentionally. Examples of the alienation of personality are slavery, serfdom, disqualification from holding property, encumbrances on property, and so forth. Alienation of intelligence and rationality, of morality, ethical life, and religion, is exemplified in superstition, in ceding to someone else full power and authority to fix and prescribe what actions are to be done (as when an individual binds himself expressly to steal or to murder, &c., or to a course of action that may involve crime), or what duties are binding on one's conscience or what religious truth is, &c.
The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them. This return of mine into myself, whereby I make myself existent as Idea, as a person with rights and moral principles, annuls the previous position and the wrong done to my concept and my reason by others and myself when the infinite embodiment of self-consciousness has been treated as something external, and that with my consent. This return into myself makes clear the contradiction in supposing that I have given into another's possession my capacity for rights, my ethical life and religious feeling; for either I have given up what I myself did not possess, or I am giving up what, so soon as I possess it, exists in essence as mine alone and not as something external.
Addition: It is in the nature of the case that a slave has an absolute right to free himself and that if anyone has prostituted his ethical life by hiring himself to thieve and murder, this is an absolute nullity and everyone has a warrant to repudiate this contract. The same is the case if I hire my religious feeling to a priest who is my confessor, for such an inward matter a man has to settle with himself alone. A religious feeling which is partly in control of someone else is no proper religious feeling at all. The spirit is always one and single and should dwell in me. I am entitled to the union of my potential and my actual being.
§ 67
Single products of my particular physical and mental skill and of my power to act I can alienate to someone else and I can give him the use of my abilities for a restricted period, because, on the strength of this restriction, my abilities acquire an external relation to the totality and universality of my being. By alienating the whole of my time, as crystallised in my work, and everything I produced, I would be making into another's property the substance of my being, my universal activity and actuality, my personality.
Remark: The relation here between myself and the exercise of my abilities is the same as that between the substance of a thing and its use (see § 61). It is only when use is restricted that a distinction between use and substance arises. So here, the use of my powers differs from my powers and therefore from myself, only in so far as it is quantitatively restricted. Force is the totality of its manifestations, substance of its accidents, the universal of its particulars.
Addition: The distinction here explained is that between a slave and a modern domestic servant or day-labourer. The Athenian slave perhaps had an easier occupation and more intellectual work than is usually the case with our servants, but he was still a slave, because he had alienated to his master the whole range of his activity.
§ 68
What is peculiarly mine in a product of my mind may, owing to the method whereby it is expressed, turn at once into something external like a 'thing' which eo ipso may then be produced by other people. The result is that by taking possession of a thing of this kind, its new owner may make his own the thoughts communicated in it or the mechanical invention which it contains, and it is ability to do this which sometimes (i.e. in the case of books) constitutes the value of these things and the only purpose of possessing them. But besides this, the new owner at the same time comes into possession of the universal methods of so expressing himself and producing numerous other things of the same sort.
Remark: In the case of works of art, the form — the portrayal of thought in an external medium — is, regarded as a thing, so peculiarly the property of the individual artist that a copy of a work of art is essentially a product of the copyist's own mental and technical ability. In the case of a literary work, the form in virtue of which it is an external thing is of a mechanical kind, and the same is true of the invention of a machine; for in the first case the thought is presented not en bloc, as a statue is, but in a series of separable abstract symbols, while in the second case the thought has a mechanical content throughout. The ways and means of producing things of that mechanical kind as things are commonplace accomplishments.
But between the work of art at one extreme and the mere journeyman production at the other there are transitional stages which to a greater or less degree partake of the character of one or other of the extremes.
§ 69
Since the owner of such a product, in owning a copy of it, is in possession of the entire use and value of that copy qua a single thing, he has complete and free ownership of that copy qua a single thing, even if the author of the book or the inventor of the machine remains the owner of the universal ways and means of multiplying such books and machines, &c. Qua universal ways and means of expression, he has not necessarily alienated them, but may reserve them to himself as means of expression which belong to him.
Remark: The substance of an author's or an inventor's right cannot in the first instance be found in the supposition that when he disposes of a single copy of his work, he arbitrarily makes it a condition that the power to produce facsimiles as things, a power which thereupon passes into another's possession, should not become the property of the other but should remain his own. The first question is whether such a separation between ownership of the thing and the power to produce facsimiles which is given with the thing is compatible with the concept of property, or whether it does not cancel the complete and free ownership (see § 62) on which there originally depends the option of the original producer of intellectual work to reserve to himself the power to reproduce, or to part with this power as a thing of value, or to attach no value to it at all and surrender it together with the single exemplar of his work. I reply that this power to reproduce has a special character, viz. it is that in virtue of which the thing is not merely a possession but a capital asset (see §§ 170 ff.); the fact that it is such an asset depends on the particular external kind of way in which the thing is used, a way distinct and separable from the use to which the thing is directly destined (the asset here is not, as has been said, an acessio naturalis like fetura). Since then this distinction falls into the sphere of that whose nature entails its divisibility, into the sphere of external use, the retention of part of a thing's [external] use and the alienation of another part is not the retention of a proprietorship without utile.
The purely negative, though the primary, means of advancing the sciences and arts is to guarantee scientists and artists against theft and to enable them to benefit from the protection of their property, just as it was the primary and most important means of advancing trade and industry to guarantee it against highway robbery.
Moreover, the purpose of a product of mind is that people other than its author should understand it and make it the possession of their ideas, memory, thinking, &c. Their mode of expression, whereby in turn they make what they have learnt (for 'learning' means more than 'learning things by heart', 'memorising them'; the thoughts of others can be apprehended only by thinking, and this re-thinking the thoughts of learning too) into a 'thing' which they can alienate, very likely has some special form of its own in every case. The result is that they may regard as their own property the capital asset accruing from their claim for themselves the right to reproduce their learning in books of their own. Those engaged in the propagation of knowledge of all kinds, in particular those whose appointed task is teaching, have as their specific function and duty (above all in the case of the positive sciences, the doctrine of a church, the study of positive law, &c.) the repetition of well-established thoughts, taken up ab extra and all of them given expression already. The same is true of writings devised for teaching purposes and the spread and propagation of the sciences. Now to what extent does the new form which turns up when something is expressed again and again transform the available stock of knowledge, and in particular the thoughts of others who still retain external property in those intellectual productions of theirs, into a private mental property of the individual reproducer and thereby give him or fail to give him the right to make them his external property as well? To what extent is such repetition of another's material in one's book a plagiarism? There is no precise principle of determination available to answer these questions, and therefore they cannot be finally settled either in principle or by positive legislation. Hence plagiarism would have to be a matter of honour and be held in check by honour.
Thus copyright legislation attains its end of securing the property rights of author and publisher only to a very restricted extent, though it does attain it within limits. The ease with which we may deliberately change something in the form of what we are expounding or invent a trifling modification in a large body of knowledge or a comprehensive theory which is another's work, and even the impossibility of sticking to the author's words in expounding something we have learnt, all lead of themselves (quite apart from the particular purposes for which such repetitions are required) to an endless multiplicity of alterations which more or less superficially stamp someone else's property as our own. For instance, the hundreds and hundreds of compendia, selections, anthologies, &c., arithmetics, geometries, religious tracts, &c., show how every new idea in a review or annual or encyclopaedia, &c., can be forthwith repeated over and over again under the same or a different title, and yet may be claimed as something peculiarly the writer's own. The result of this may easily be that the profit promised to the author, or the projector of the original undertaking, by his work or his original idea becomes negligible or reduced for both parties or lost to all concerned.
But as for the effectiveness of honour in checking plagiarism, what has happened is that nowadays we scarcely hear the word 'plagiarism', nor are scholars accused of stealing each other's results. It may be that honour has been effective in abolishing plagiarism, or perhaps plagiarism has ceased to be dishonourable and feeling against it is a thing of the past; or possibly an ingenious and trivial idea, and a change in external form, is rated so highly as originality and a product of independent thinking that the thought of plagiarism becomes wholly insufferable.
§ 70
The comprehensive sum of external activity, i.e. life, is not external to personality as that which itself is, immediate and a this. The surrender or the sacrifice of life is not the existence of this personality but the very opposite. There is therefore no unqualified right to sacrifice one's life. To such a sacrifice nothing is entitled except an ethical Idea as that in which this immediately single personality has vanished and to whose power it is actually subjected. Just as life as such is immediate, so death is its immediate negation and hence must come from without, either by natural causes, or else, in the service of the Idea, by the hand of a foreigner.
Addition: A single person, I need hardly say, is something subordinate, and as such he must dedicate himself to the ethical whole. Hence if the state claims life, the individual must surrender it. But may a man take his own life? Suicide may at a first glance be regarded as an act of courage, but only the false courage of tailors and servant girls. Or again it may be looked upon as a misfortune, since it is inward distraction which leads to it. But the fundamental question is: Have I a right to take my life? The answer will be that I, as this individual, am not master of my life, because life, as the comprehensive sum of, my activity, is nothing external to personality, which itself is this immediate personality. Thus when a person is said to have a right over his life, the words are a contradiction, because they mean that a person has a right over himself. But he has no such right, since he does not stand over himself and he cannot pass judgement on himself. When Hercules destroyed himself by fire and when Brutus fell on his sword, this was the conduct of a hero against his personality. But as for an unqualified right to suicide, we must simply say that there is no such thing, even for heroes.
§ 71
Existence as determinate being is in essence being for another (see Remark to § 48). One aspect of property is that it is an existent as an external thing, and in this respect property exists for other external things and is connected with their necessity and contingency. But it is also an existent as an embodiment of the will, and from this point of view the 'other' for which it exists can only be the will of another person. This relation of will to will is the true and proper ground in which freedom is existent. — The sphere of contract is made up of this mediation whereby I hold property not merely by means of a thing and my subjective will, but by means of another person's will as well and so hold it in virtue of my participation in a common will.
Remark: Reason makes it just as necessary for men to enter into contractual relationship — gift, exchange, trade, &c. — as to possess property (see Remark to § 45) — While all they are conscious of is that they are led to make contracts by need in general, by benevolence, advantage, &c., the fact remains that they are led to do this by reason implicit within them, i.e. by the Idea of the real existence of free personality, 'real' here meaning 'present in the will alone'.
Contract presupposes that the parties entering it recognise each other n persons and property owners. It is a relationship at the level of mind objective, and so contains and presupposes from the start the moment of recognition (compare Remarks to §§ 35 and 57).
Addition: In a contract I hold property on the strength of a common will; that is to say, it is the interest of reason that the subjective will should become universal and raise itself to this degree of actualisation. Thus in contract my will still has the character 'this', though it has it in community with another will. The universal will, however, still appears here only in the form and guise of community.
Contract (next section)