Abstract
The problem of the provisionality of private law in Kant is an enduring philosophical and interpretive puzzle. Kant seems to claim both that ownership interests in objects, choices, and statuses are actual rights even in a state of nature and that such rights are only grounded in the civil condition. For the purposes of this paper I will focus on ownership interests in objects (Sachenrecht), which itself bears a problematic relationship to modern theories of property law (to which it is often too hastily assimilated). If Kant shares the general problem of the modern concept of property, his solution to that problem is unique and distinctive of the German social condition in the Sattelzeit period (1770–1830). Two features of that period are central to understanding Kant’s view on provisionality. First, the practical problem of ownership rights is not that of determining the boundaries of exclusive titles, but rather of disentangling and reweaving a complex set of ownership relations. Second, the relevant contrast to which the state of nature versus civil condition distinction refers is not a contrast between a situation of no political authority and one with political authority. It is, rather, a contrast between a society which had many different political authorities and one in which only the state had political authority.
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Notes
- 1.
For what it is worth, I do not see this appeal to historical context as an exclusive methodological choice that involves the rejection of other approaches. Certainly, the significance of Kant’s theory of provisional right involves at least three factors: its relation to the tradition of modern political philosophy, its relation to other aspects of his own thinking, and its relation to its social context. But it strikes me that in the extant literature the first two factors are rather well-represented, so that attention to the latter may be helpful in advancing the debate. I thank Helga Varden for pushing me on this point.
- 2.
An argument for similar conclusions to my own, but drawn rather more from traditional rational reconstruction of Kant’s text, can be found in Messina (2019).
- 3.
Since Schwab’s entry is internally well-organized, I have not thought it necessary to add additional citations for the specific points made here.
- 4.
See also MM 6:264: “Something can be acquired conclusively [peremptorisch] only in a civil constitution; in a state of nature it can also be acquired, but only provisionally [provisorisch].”
- 5.
See also Ripstein (2009, 88): “Having things subject to your choice must be understood in terms of their being subject to your purposiveness, and so to your exclusive use of them.”
- 6.
- 7.
For this view, see Westphal (2002).
- 8.
This topic deserves more discussion than I can give it here. For a useful analysis—though one that comes to opposed conclusions from my own—see Weinrib (2018).
- 9.
This is slightly overstated, leaving out for the moment Kant’s emphasis on land as the fundamentally ownable thing (MM 6:261–2).
- 10.
For an amusing and clear recital of many of these difficulties, see Hubbard (2008), Ch. 1.
- 11.
Ludwig’s analytical reconstruction of this aspect of original communal ownership in Kant is quite helpful. See Ludwig (2005, 130–32).
- 12.
My translation.
- 13.
Here Schwab 89–93 has a good summary of the difficulties, and the different ways in which property rights could be incompatible; also Koselleck (1967).
- 14.
See also Varden (2008).
- 15.
Kant speaks of “civil society [bürgerliche Gesellschaft]” only later in the discussion of punishment (MM 6:331 & 333), in a context that is ambiguous as to its referent between society and state.
- 16.
Also Varden (2008, 11).
- 17.
See also Messina (2019, 449–54) for an argument along these lines and texts from Kant to suggest that he had the same doubts.
- 18.
For a longer argument for her contrary view, see Varden (2009).
- 19.
In addition to Schwab, see Koselleck (1967, 23–25).
- 20.
Koselleck is particularly good on the ramifications of this point. See, for example, Koselleck (1967, 32–7).
- 21.
To be clear, I endorse only this aspect of their view. They are also weak provisionality theorists in Hasan’s sense, but that part of their view does not follow directly from the placement of the juridical state within the adventitious state. Thanks to Rafeeq Hasan for pushing me to make this clear. Cf. Messina (2019, 456).
- 22.
- 23.
This paper greatly improved in response to criticism from Ansgar Lyssy, Rafeeq Hasan, and Helga Varden.
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Yeomans, C. (2021). Kant and the Provisionality of Property. In: Lyssy, A., Yeomans, C. (eds) Kant on Morality, Humanity, and Legality. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-54050-0_13
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