第 10 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  entering into civil union with us; we are to be considered entitled in
  any case to proceed with force in the intention of founding such a
  union; and bringing into a juridical state such men as the savage
  American Indians; the Hottentots;and the New Hollanders; or… and the
  case is not much better… whether we may establish colonies by
  deceptive purchase; and so become owners of their soil; and; in
  general; without regard to their first possession; make use at will of
  our superiority in relation to them? Further; may it not be held
  that Nature herself; as abhorring a vacuum; seems to demand such a
  procedure; and that large regions in other continents; that are now
  magnificently peopled; would otherwise have remained unpossessed by
  civilized inhabitants and might have for ever remained thus; so that
  the end of creation would have so far been frustrated? It is almost
  unnecessary to answer; for it is easy to see through all this flimsy
  veil of injustice; which just amounts to the Jesuitism of making a
  good end justify any means。 This mode of acquiring the soil is;
  therefore; to be repudiated。
  The indefiniteness of external acquirable objects in respect of
  their quantity; as well as their quality; makes the problem of the
  sole primary external acquisition of them one of the most difficult to
  solve。 There must; however; be some one first acquisition of an
  external object; for every Acquisition cannot be derivative。 Hence;
  the problem is not to be given up as insoluble or in itself as
  impossible。 If it is solved by reference to the original contract;
  unless this contract is extended so as to include the whole human
  race; acquisition under it would still remain but provisional。
  16。 Exposition of the Conception of a Primary
  Acquisition of the Soil。
  All men are originally in a common collective possession of the soil
  of the whole earth (communio fundi originaria); and they have
  naturally each a will to use it (lex justi)。 But on account of the
  opposition of the free will of one to that of the other in the
  sphere of action; which is inevitable by nature; all use of the soil
  would be prevented did not every will contain at the same time a law
  for the regulation of the relation of all wills in action; according
  to which a particular possession can be determined to every one upon
  the common soil。 This is the juridical law (lex juridica)。 But the
  distributive law of the mine and thine; as applicable to each
  individual on the soil; according to the axiom of external freedom;
  cannot proceed otherwise than from a primarily united will a priori…
  which does not presuppose any juridical act as requisite for this
  union。 This Law can only take form in the civil state (lex justitiae
  distributivae); as it is in this state alone that the united common
  will determines what is right; what is rightful; and what is the
  constitution of Right。 In reference to this state; however… and
  prior to its establishment and in view of it… it is provisorily a duty
  for every one to proceed according to the law of external acquisition;
  and accordingly it is a juridical procedure on the part of the will to
  lay every one under obligation to recognise the act of possessing
  and appropriating; although it be only unilaterally。 Hence a provisory
  acquisition of the soil; with all its juridical consequences; is
  possible in the state of nature。
  Such an acquisition; however; requires and also obtains the favour
  of a permissive law (lex permissiva); in respect of the
  determination of the limits of juridically possible possession。 For it
  precedes the juridical state; and as merely introductory to it is
  not yet peremptory; and this favour does not extend farther than the
  date of the consent of the other co…operators in the establishment
  of the civil state。 But if they are opposed to entering into the civil
  state; as long as this opposition lasts it carries all the effect of a
  guaranteed juridical acquisition with it; because the advance from the
  state of nature to the civil state is founded upon a duty。
  17。 Deduction of the Conception of the Original
  Primary Acquisition。
  We have found the title of acquisition in a universal original
  community of the soil; under the conditions of an external acquisition
  in space; and the mode of acquisition is contained in the empirical
  fact of taking possession (apprehensio); conjoined with the will to
  have an external object as one's own。 It is further necessary to
  unfold; from the principles of the pure juridically practical reason
  involved in the conception; the juridical acquisition proper of an
  object… that is; the external mine and thine that follows from the two
  previous conditions; as rational possession (possessio noumenon)。
  The juridical conception of the external mine and thine; so far as
  it involves the category of substance; cannot by 〃that which is
  external to me〃 mean merely 〃in a place other than that in which I
  am〃; for it is a rational conception。 As under the conceptions of
  the reason only intellectual conceptions can be embraced; the
  expression in question can only signify 〃something that is different
  and distinct from me〃 according to the idea of a non…empirical
  possession through; as it were; a continuous activity in taking
  possession of an external object; and it involves only the notion of
  having something in my power; which indicates the connection of an
  object with myself; as a subjective condition of the possibility of
  making use of it。 This forms a purely intellectual conception of the
  understanding。 Now we can leave out or abstract from the sensible
  conditions of possession; as relations of a person to objects which
  have no obligation。 This process of elimination just gives the
  rational relation of a person to persons; and it is such that he can
  bind them all by an obligation in reference to the use of things
  through his act of will; so far as it is conformable to the axiom of
  freedom; the postulate of right; and the universal legislation of
  the common will; conceived as united a priori。 This is therefore the
  rational intelligible possession of things as by pure right;
  although they are objects of sense。
  It is evident that the first modification; limitation; or
  transformation generally; of a portion of the soil cannot of itself
  furnish a title to its acquisition; since possession of an accident
  does not form a ground for legal possession of the substance。
  Rather; conversely; the inference as to the mine and thine must be
  drawn from ownership of the substance according to the rule:
  Accessarium sequitur suum principale。 Hence one who has spent labour
  on a piece of ground that was not already his own; has lost his effort
  and work to the former owner。 This position is so evident of itself
  that the old opinion to the opposite effect; that is still spread
  far and wide; can hardly be ascribed to any other than the
  prevailing illusion which unconsciously leads to the personification
  of things; and; then; as if they could be bound under an obligation by
  the labour bestowed upon them to be at the service of the person who
  does the labour; to regard them as his by immediate right。 Otherwise
  it is probable that the natural question… already discussed… would not
  have been passed over with so light a tread; namely: 〃How is a right
  in a thing possible?〃 For; right as against every possible possessor
  of a thing means only the claim of a particular will to the use of
  an object so far as it may be included in the all…comprehending
  universal will; and can be thought as in harmony with its law。
  As regards bodies situated upon a piece of ground which is already
  mine; if they otherwise belong to no other person; they belong to me
  without my requiring any particular juridical act for the purpose of
  this acquisition; they are mine not facto; but lege。 For they may be
  regarded as accidents inhering in the substance of the soil; and
  they are thus mine jure rei meae。 To this category also belongs
  everything which is so connected with anything of mine that it
  cannot be separated from what is mine without altering it
  substantially。 Examples of this are gilding on an object; mixture of a
  material belonging to me with other things; alluvial deposit; or
  even alteration of the adjoining bed of a stream or river in my favour
  so as to produce an increase of my land; etc。 By the same
  principles; the question must also be decided as to whether the
  acquirable soil may extend farther than the existing land; so as
  even to include part of the bed of the sea; with the right to fish
  on my own shores; to gather amber and such like。 So far as I have
  the mechanical capability from my own site; as the place I occupy;
  to secure my soil from the attack of others… and; therefore; as far as
  cannon can carry from the shore… all is included in my possession; and
  the sea is thus far closed (mare c