property is apparently solidified but in which are also generated positive rights to welfare that upset the assumptions underlying the derivation of private property. The result is a ‘civil society’ (bürgerliche Gesellschaft) marked by a tension between the public welfare and private property, where each claims a self-contradictory absolutism requiring illogical accommodations and concessions. While it is possible to view the takings clause as reflecting this tension, it is also possible (I argue) to view it as belonging to the constitution of a well-ordered political community. In Section 5, I set forth Hegel’s account of the state as a holistic entity of which a public sphere aimed at the common welfare and a private sphere ordered to the singular (atomistic, separate) person are distinct and mutually complementary parts. The idea of a property that is established inside the state but outside the public sphere yields the configuration of norms contained in the takings clause. It also removes the appearance of paradox in that combination.

2. Why Acquisition?

In the justice paradigm Hegel calls Abstract Right, the human individual claims to be an unconditioned end solely by virtue of its inborn capacity for free choice. An unconditioned end is one that is neither relative to a subject (it is objective) nor valuable for the sake of some further end (it is final). The capacity for free choice is plausibly such an end, because it is the original purposiveness that is universally and necessarily expressed in positing the particular, contingent ends toward which action is directed. A bearer of the capacity for positing ends is called a person, and the capacity itself is called personhood.

The person’s capacity for free choice makes possible its rejecting as motives for action all ends given by life. For the person, all such ends are optional and their value relative to the chooser. Accordingly, for the justice paradigm built on the supposed unconditioned end-status of free will, everything but the free will is consigned to the sphere of contingency and relativity. The human individual is pictured as a bifurcated being: on one side, a generic person stripped of individuating features; on the other, a particular individual rich in such features.15 Yet only the generic person counts for the public reason of right and wrong; and so any property right must be derived solely from it, without regard to physical needs or the satisfaction of wants. Because, moreover, the individual qua person is here regarded as morally self-sufficient—as owing its end-status to nothing beyond its free will—Hegel begins with a solitary person, from whose project to validate endstatus he derives a private property.

It would be a mistake, however, to view Abstract Right as a state of nature of the kind deployed by contractarian theories of civil authority. This is so because, unlike Hobbes, Locke, and Kant, Hegel does not think that persons really are morally self-sufficient—that they have natural rights outside all association; and so he does

15 Hegel 1820b, para. 35.

not think that they are by nature dissociated from each other. Hegel’s own standpoint is distanced from that of Abstract Right, which will in the end be integrated into an ethical system ordered to his own conception of an unconditioned end. Hegel begins with a stateless condition, not in order to show why already dignified human beings must institute a state, but rather to show how their quest for dignity conceptually impels them to a state of a certain kind. Like Aristotle, Hegel begins with a stateless condition in order to demonstrate that a political community sufficient for dignity is the human being’s telos or natural end. So, while his account of the state begins from the atomistic person, it is not (as Locke’s and Kant’s accounts are) based on this person. Considered on its own, Abstract Right will turn out to be an untenable abstraction from the political community to which it in truth belongs. A framework of justice ordered to a person who claims to be morally self-sufficient will turn out to be embedded in a political community that requires such an adversary for the confirmation of its own natural authority.

In detaching itself from everything empirically given, the person juxtaposes itself to a world of particular things. A ‘thing’ is whatever is not a person or part of a living person—whatever lacks a capacity for free choice and is not bound up with that capacity in a free nature.16 Lacking free will, a thing has no side that is unconditioned, and so it can place no other being under an obligation not to use or destroy it. Not being an end, it may be used solely as a means. Correlatively, the person is permitted to subdue all things to its ends.17 This permission is unlimited by the survival needs of others, for, as we have just seen, such needs are for persons’ subjective wants with no standing to put an absolute end under an obligation to accommodate them. Thus, there is no proviso on permissible acquisition that no one be disadvantaged by it with respect to life’s needs. The Lockean proviso is unknown to Abstract Right just as it is unknown to the common law.

The question, however, is why one end must respect another’s acquisition. A thing offers no moral resistance to its use by an absolute end, but why should one absolute end respect the dominion over a thing of one who is not his superior? The fact that the empirical individual needs things for biological survival cannot provide a reason for respect, for if another’s chosen attachment to life cannot limit an end’s permission to acquire unoccupied things, neither can it place an end under an obligation not to acquire things already taken into possession. Acquisition by one end could command the respect of equal ends only if it were required by ends qua ends, for only then would respect be necessarily reciprocal and therefore not servile. But why should an absolute end have need of anything?

Hegel’s justification of a private property in things is perhaps best illuminated by a contrast with Kant’s, since both begin from the end-status involved in free will. Kant derives property from the person’s innate right to the maximum liberty consistent with equal liberty. To own something distinct from one’s person, he argues, is to have a right to stop someone else from using it even though one’s

physical possession of the thing has been discontinued. If it were impermissible to do this, then one’s liberty to use usable things would be arbitrarily curtailed, for ownership is consistent with everyone’s equal liberty under law. But an arbitrary limitation of liberty is wrong, and so property must be possible for free wills.18

Though elegant, this argument is incomplete. While it justifies the practice of owning in general, it does not justify a person’s ownership of the particular things it directly (without the mediation of a public authority) acquires, and in fact Kant provides no such justification. On the contrary, he regards a property in things directly acquired (whether by first occupation or through voluntary transfer) as provisional, pending omnilateral review by a citizen legislature in a civil condition. For Kant, only holdings mediated by the general will are conclusively one’s property, if one can call a revocable licence to use state-owned things ‘property’. By contrast, Hegel provides a justification for a person’s property in the specific things it acquires directly—independently of any approval by a public authority. That justification is the subject of this and the following sections. It begins as follows.

The person claims to be an unconditioned end, and yet it is in fact conditioned as a void by the luxuriant world of contingent beings from which it abstracts. As that which is not-contingent, personality depends for its identity on the world of contingent things. This dependence confers on contingent things the appearance of an independence that challenges the person’s claim to unconditioned end-status. That status is something merely claimed and asserted. But this means that the person is an unconditioned end only in its own estimation, which is to say that it is not an unconditioned end after all. A disparity thus opens between the person’s subjective conviction of end-status and the reality of its dependent existence. Insofar, therefore, as the person remains aloof from things, it is self-contradictory as an unconditioned end. This internal contradiction implies that the person lacks the world as that whose subordination to its ends validates the person’s claim of final worth. Because it lacks the world, the person also desires it. This is not an appetite given by nature from which personality can detach itself but an intellectual desire of personality for validation as an end. To satisfy this desire, the person must step out of its self-relation and perform actions of a type that realize or make good its claim of authority over things.19 Specifically, it must perform actions that put objects into a relation of subservience to it. These actions will constitute a property because they will (partially or perfectly) validate a claim of end-status vis-à-vis a thing. The question for discussion is: can there be an objective validation of this claim outside the framework of public law?

3. The Validation Scale and Grades of Ownership

If property in an object is a person’s validated claim to end-status vis-à-vis that object, then we understand property when we understand what types of action

choice to possess something could bind non-consenting equals. But Hegel, we saw, explains acquisition as essential to an end-status self-contradictory without it, and so the obligation to respect acquisition by unilateral actions can be a priori reciprocal. If there is an a priori reciprocal obligation to respect persons as ends, then there is an a priori reciprocal obligation to respect the possession in which endstatus becomes real.

Another reason why first possession might fail to create a right in rem is one that Hegel recognizes. It has to do with interpersonal competition for scarce means of self-validation. The problem is that, in gaining proof of his end-status through the object, the first occupier also makes the object unavailable for the self-validation of others. Why should they accept this? Unilateral possession could confer a valid right to exclusive possession only if that right were somehow reconciled with the freedom of acquisition of competitors for the object; and so far it has not been. I’ll return to this.

A further problem with equating first possession with first ownership was noticed by Holmes.26 If first possession suffices to confer unqualified ownership—a right against the world—then whatever other powers come with ownership, the right to possess must be what ownership is. Someone who divested himself of the right to possess could not be an owner, while someone who acknowledged ownership in another would also acknowledge legal possession in that person and so could assert no possessory right against him. Yet tenants have possessory rights against persons they acknowledge as owners, and owners temporarily divest themselves of possessory rights without ceasing to be owners. If first possession is first ownership, how can possessory right and ownership come apart?

These problems become soluble if we regard the claim that first possession is first ownership as mistakenly seeking a right in rem at the beginning of property’s development rather than at its end. The grain of truth in this claim is that, because it leaves the object with an appearance of independence, possession is the least satisfactory validation of end-status; and so (assuming the competition problem solved) it confers on the first possessor a title relative only to those who have yet to establish even this minimal connection with the object. True, the ‘only’ here is ‘all’, but the possessory right is not yet a right in rem because it is contingent on no other person’s gaining a better validation in the object by annulling its independence; to the one who does, the possessory right will yield. Possession, in other words, confers a relative or imperfect property, better only than no connection to the thing at all. That is why the first occupier has a right to exclude all other would-be possessors, and it is why no trespasser can defeat a possessory title (even that of a thief ) by appealing to the right of the true owner.27 Yet because possession is an imperfect property, it will end up being subordinate to a non-possessory ground of title that represents a fully adequate realization of personality as an unconditioned end. Thus, someone with the best possessory title (e.g. a tenant) may be distinct from the absolute owner; while, conversely, ownership based on actions that confirm

end-status perfectly can serenely cede finite rights of possession to another, even as possession continues to confer relative (including temporally finite) rights.

3.2 Use

That first possession confers no right in rem is attested to by the common law itself. Suppose P takes possession of a pristine tract of land by enclosing it with a fence on which he posts signs warning off trespassers. While P takes an extended holiday, S squats on the land and puts it to intensive use for 12 years. If P takes no action to oust S, his title will be extinguished in favour of S’s.28 What is the ground of S’s title? Against everyone but P, S can point to his possessory actions, because no one else but P has established a possessory connection with the land. Against P, however, S cannot appeal to his physical possession, because there is no reason why S’s possessory acts should displace P’s. On the contrary, since P’s acts occurred first, they should withstand any subsequent acts of possession as those of a mere trespasser. To be sure, we say that P has been dispossessed or that his possession has been discontinued, leaving S alone in possession of the land. However, the discontinuance of P’s possession is not a precondition of S’s possessory right but a legal conclusion thereof. What we mean is that S’s occupation was of such a kind as to oust P’s, to deprive it of juridical force. If S had merely replaced P’s signs with his own, P would not have been dispossessed. Similarly, if P had made the slightest use of a portion of the fenced-in area, no acts of S would have succeeded in dispossessing him.29 Accordingly, P is dispossessed not because S performed actions amounting to mere possession, but because he performed actions that were superior to possessory ones as validations of end-status. What are these actions?

We saw that possession fell short as a validation of end-status because it left the thing with an appearance of independence. Use is a better validation because using something as one pleases subdues it to the person’s free choice of ends. Also, use transforms the thing’s physical character, consumes its use value, and in that way reduces it to the finality of the person.30 Accordingly, use is a better property—a better validation of end-status vis-à-vis the thing—than possession without use. Possession is ‘adverse’ to that of the previous occupier and sufficient to dispossess him only if it consists in public acts of use (with an intention to control) where the previous occupier is making no use of the land. Thus, time will not run in favour of a trespasser, because the intentional possession of the first occupier confers a title good against non-possessors and hence invincible against subsequent acts that are merely possessory. Yet it will run in favour of someone whose use has the potential (needing only a certain longevity to ripen into a mastery of the object) to override the bare possession of the previous occupier and whose property in the thing is thus potentially superior. The user’s property is superior, however, not because the law decrees it to be so for public ends, but because use is superior to possession as a

validation of end-status. Once again, the common law merely recognizes a preexisting relation of dominion.

Nevertheless, use is not a complete property. As so far constituted, property is inadequate as a validation of end-status in several respects. In possession and use, first of all, the person proves its end-status in a self-contradictory way, for it finds itself dependent on external things for the confirmation of its mastery of them. Therefore, the same possessive and usufructuary actions that cancel the object’s independence also perpetually reinstate it. The person’s satisfaction is necessarily ephemeral because each satisfaction produces a new lack ad infinitum.31

Second, taking possession and using are physical actions that purport to ground an intellectual right to own something to the exclusion of others—a right whose validity is independent of the contingency of continuous physical possession. Yet the intellectual right is thus far limited by the requirement that the thing should have been at one time physically possessed. While struggling to free itself from its contingent origins, the right continues to be anchored to them, and this dependency contradicts the unconditioned end-status that personality seeks.

Third, we have not yet bridged the gulf between fact and right. Possessing and using are contingent happenings that purport unilaterally to exclude other persons from control of the object. If excluding were not disadvantaging in a normatively relevant sense, the claim of right to exclusive possession could be validated a priori; for, acquisition being necessary for end-status, the obligation to respect de facto acquisition could be notionally reciprocal, hence acceptable by equal ends. The property unilaterally established by possession and use would then suffice for a right in rem, for the laws of first and adverse possession would reconcile the free acquisition of each with that of all, and no person would be deprived in a way that is normatively significant for Abstract Right. However, if someone is so deprived, then unilateral acquisition could not confer a property, for it could not then be freely recognized by those it purports to bind.

On Hegel’s account of acquisition, unilateral acquisition must deprive others in a normatively significant way. That is, it must deprive others, not only of the things they might biologically need or subjectively fancy, but also of the things they require for the confirmation of their end-status. We have seen that acquisition confers rights insofar as it stems from a contradiction between the person’s claim to end-status and the apparent independence of objects. This contradiction generates an urge of the will to cancel that independence and to validate its own finality. Understood as a desire of the will rather than an appetite of the body, the acquisitive project is inherently one of infinite accumulation. If (as for the ancients) acquisition is understood as required for the body, its limits can be set by the body’s subordination to the final end of living well. When, however, acquisition is viewed as essential to the validation of a final end, all previous restraints are off. No doubt, new (freedom-generated) restraints will emerge once Abstract Right is integrated into the political life sufficient for end-status; but at this stage, there are none.

31 Hegel 1807, paras. 173–5.