Question 3: Rightful Acquisition and the Civil Condition

Thomas Ruble

1. Introduction and abstract
In the summary passage at the end of 44 in the Doctrine of Right (6:312), Kant briefly
presents two different essential features of the civil condition, but leaves their connection mostly
implicit. They are (1) a particular necessary condition for the possibility of the civil condition as
such, and (2) a sufficient condition for the rightful command to leave the state of nature for the
sake of entering a civil condition. Both of these points have to do with acquisition, first, with
regard to the cognition merely of its possible rightfulness, and, second, with regard to the
conditions under which it could actually occur with right. I will argue that the connection
between the possibility of the civil condition and the command to enter into it lies in that the
form of an act of rightful acquisition is incompatible with the form of the state of nature; the
form of acquisition itself provides for both the formal definition of the civil state, and the
practical requirement to establish it an analytic implication by which it can be argued that
given the rightfulness of acquisition, one will not only be duty-bound to institute a civil
condition, but will be graced by the aegis of right even while coercing others to join in against
their own free choice.
There is an apparent paradox for one who superficially observes in this case the
hindrance to anothers freedom in the name of freedom, and there is an errant temptation to solve
the puzzle by an appeal to how much better it would be for the uncivilized property holders if
they would but recognize the threat they pose to each other and then strive to secure better their
possessions by means of the reign of law, so that Kants argument supporting an act of coercion
in order to form the civil state appeals to freedom plus an element of prudence for the sake of
daily conveniences, or whatever. However persuasive this argument may be, it presupposes an
experience of human behavior (e.g., a malevolent tendency, 6:312), which belies that its
reasoning is shot through with contingencies and could not be Kants. The fear of a neighbor
does not justify a coercive response; only an all-or-nothing universal distributive justice justifies.
Since I will argue that it is a formal relation which grounds the right to coerce others to institute
a civil state, my argument will also deny that the rightful motivation for entering a civil condition
could be the guarded concern over ones own possessions, fear of expropriation, curtailment of
violence, or any other such material differences as there may be between a certain state of nature
and its civilized institutions. When Kant explains that, in the state of nature, a moment of
possession could, at its best approximation to the reality of its concept, be provisional
(provisorisch), he is not so much as drawing attention to its tentative instability, as he is
describing the way that the rightful mode of possession in the state of nature is one that must
look ahead to the promise of public justice and its conclusive (peremptorisch) decree. One does
not institute a civil state because of any fear over the provisionality of acquisitions, but rather
because the concept of rightful possession itself previsions and prefigures the only condition
wherein it can enjoy actuality.

2. The civil condition is a formal modification of the state of nature based on the form of
rightful possession as such
The so-called state of nature (Naturzustand) is the fount of natural right (Naturrecht), for it
is the unsurpassable a priori condition of any humans simply having been born into having
humanity, and therewith endowed with an innate (angeborne) independence from the force of
anothers coercive choice -- an independence to which all subsequent acquired rights must be led
back as to their highest measure (6:237 and cf. 6:256). The state of nature is thus one in which
every human has, by nature, an isolated individuality free for itself. Every person, as an
independent subject, thus has the moral responsibility to judge for oneself the rightfulness of
ones conduct, and the capacity to opine about that of another. Due to the inborn freedom of
autonomy, the right to this freedom, when applied to the external shared world, results in a
situation which almost certainly will abound in disagreement about what is right for a neighbor,
since no matter what opinions get bandied about each has her own right to do what seems right
and good to herself (6:312). In this situation, there is no unavoidable reason that disagreements
will take a turn toward positive un-rightfulness (Ungerechtigkeit), but there will certainly be no
standard of adjudication that effects equally each disputing party, in the absence of which their
disagreements will inevitably spin in the vacuum of rightlessness (Rechtlsigkeit) (6:312). Kant
makes these fine distinctions in order to account for the possible strange situation where each
disputing person has an equal opportunity to claim to be in the right, while yet remaining unable
to establish that another is in the wrong. Without a pre-defined system of law, it is conceivable
that each disputant can choose an act that could possibly coexist together with everyones
freedom according to a universal law which would qualify as acting rightly (6:230) but
nevertheless remain not in accord with ones neighbor about precisely what that law should be.
This stalemate is not due to the actors in relation to each other, who have every right to judge
their own conduct as rightful, but in truth the fault owes to the condition itself. The state of
nature, not necessarily its populace nor its laws, is itself non-rightful (nicht-rechtliche) (6:306).
Although I have laid emphasis on the individuality of those isolated subjects that populate the
state of nature, it is conceivable that they may yet form any kind of society, great or small, and
they may regulate themselves according to any laws they please, but insofar as they have not
both universalized their laws and unified their wills they will yet be plagued by the fact that
when even one man resists the rules of external acquisition honored by the rest of society
together, then the will of all others except for the man which proposes to put him under
obligation to give up a certain possession, is merely unilateral, which is to say, by the principle
of equal independence from anothers coercive choice, that the will of all-but-one holds as little
lawful force (since this can only be found in the general will) in contradicting him as he has in
his asserting (6:257, trans. modified), and thus any mere development in the mores of society
and any quantitative enlargement of their reach could not advance the state of natures standing
with respect to an authoritative force of law holding for all, unless those in the state of nature aim
to enter into a truly different form of their being-together (Form ihres Beisammenseins, 6:306),
wherein their individual wills to obligate each other take a collective shape as one which is all-
general and all-powerful, under the legislation of which they will find themselves in the civil
condition. Since the duties humans have must each and all be deducible from the rights
belonging to mere humanity, the duties and acquired rights found in any civil condition must
each and all be at least potentially lawful within a mere state of nature; this parity between the
two condition leaves for the innovation brought about by the institution of a civil state not any
material addendum to any list of acquired rights, but only a formal purity from contradictory
claims to rightful action, with the consequence that the rule of law, which subsists merely as an
aspiration for those in the state of nature, would at last achieve peremptory authority -- it could
be put into effect (zur Ausbung, more accurately: into practice, 6:312). The importance
that law be able to be observed in practice stems from the inescapable scarcity of resources (a
fact which Kant highlights when declaring that the postulate of public right holds for those who
cannot avoid living together, see 6:307 and 6:312), which makes for the case that, in the state of
nature, one mans possession is a hindrance to another mans external freedom of choice, and
thus this possession qua dispossession provides a shared cause for them to fall into a
contradiction of unilateral claims over a middle term with no conclusive status. The possibility
that this contradiction would come to an end could only follow from a formal alteration in the
practiced concept of possession itself (since any mere material change to the distribution of
property would never rid it of unilateral endorsement), in such a way that possession would
become rightful and thereby not unable to coexist with anothers freedom. If this concept of
possession by right were impossible, then the civil condition too would be impossible. Clearly,
then, the cognition of rightful possession is a necessary condition for the possibility of the civil
condition.

3. The command to leave the state of nature follows from the form of actual rightful
possession
A dispute over an article of property in the state of nature can have no rightful issue, since
anyone has the entitlement to fend off coercively a potential threat. Men do one another no
wrong at all when they feud among themselves; for what holds for one holds also in turn for the
other (6:307). How is it, then, that a person acting alone in order to dispel invaders or to force
another to enter into a civil state is able to attain a status of rightfulness while all other unilateral
actors fail? The difference is that, prior to the civil condition, claims to property can do no
material wrong, but the intention to remain in the state of nature commits a formal wrong. Only
such acquisitions made by those who are also willing to formalize the rule of their acquisition
into a universal law can be judged to be made in accord with the form of right, which gives them
an advantage in disputes (6:257). If an actual possession in the state of nature is to become
rightful, it must be held by one who willingly looks forward to the eventual condition where the
actual possession would conclusively receive the sanction of universal law.
The provisionality of acquisition in the state of nature is a double entendre based, on the
one hand, from the incompatibility of the concept of rightful acquisition with the merely
unilateral claim to possess it, and, on the other, from the fact that it is essentially on the side of
right insofar as it is ready for peremptory legalization. But to will the end is to will the means,
and so the form of actual rightful possession in the state of nature, being only provisional,
commands that the one who wills it must intend also to enter into a civil condition. Indeed,
provisionally rightful acquisition is the only toehold for the movement toward rightful civility
from within the limits of the state of nature, for actual right must begin as provisional. Since
external appropriation of scarce resources is itself coercive toward others (who cannot also enjoy
the use of the resource) one who intends to leave the state the nature is now sanctioned, and
indeed commanded, to coerce. Gregor captures the key transition to rightful coercion with a
revealing inconsistency in her translation: it occurs within a single sentence where Kant justifies
that one may impel the other by force [mit Gewalt antreiben] to leave the state of nature and
enter into a rightful condition on the ground that provisional acquisition calls for an authority
putting this right into effect [dies Recht ausbende Gewalt] (6:312). Mere force (Gewalt),
natural violence (Gewaltttigkeit), does not vanish outright but passes through a transfiguration
into what Gregor thinks best to call authority (Gewalt). The provisional rightfulness of
possession lends a provisional authority to coerce others for the sake of a public justice.