General Will and Property Acquisition in Kant's 'Doctrine of Right'

In the state of nature, according to Kant, property rights are provisional. Because acquisition of external objects occurs through unilateral act, we cannot, strictly speaking, own anything prior to civil condition, in which our property rights claims will be omnilaterally approved. This, however, does not mean that the idea of general will has no relevance for property acquisition in the state of nature. As an a priori and originally united choice of all, it ‘wills’ the introduction of property and thus grounds provisional validity of property rights, making our empirical acts of appropriation morally valid rights claims, instead of them being mere arbitrary acts without legal consequences for others. But since general will is actual and effective only in the civil condition, we cannot conclusively acquire anything in the state of nature. We should therefore distinguish between two instantiations of the general will: one ‘original’ in the state of nature, that authorises our property rights claims and another ‘actual’ and ‘derived’ (from the particular will of each) in the civil condition, that affords us with conclusive property rights. Although they are two instantiations of the same general will, some difference between them remains and that difference has two important implications for the status of property rights in the civil condition. First, guided by the ‘actual’ general will, which it represents and responding to the requirements of public interest in specific circumstances (environmental issues, social justice, economic efficiency), civil authority has considerable latitude in deciding between different property regimes. However, as a representative of the actual general will, civil authority is to certain extent normatively bound by the idea of the originally united will in the state of nature, i.e. the latter sets some limits to its own actualization in the civil condition. It demands e.g. that some form of property be introduced, or that we do not remain in a condition where only physical possession (and physical use) is possible, and it contains the condition of non-discrimination, meaning that no one can be denied the possibility to acquire property rights, or that all external objects must be possible property of everyone. But these demands allow for more than one property regime. Second, as Kant’s remarks on the relation between property rights and perpetual peace indicate, the ‘originally’ united will points to the necessity of some form of its institutionalization on a global level. All existing states are, in other words, only partial, imperfect and, taken together, contingent instantiations of the originally united will. That will must be actualized as the united will of all, or the will of the whole humanity, analogous to its ‘original’ instantiation in the state of nature. Until some global institutional form of civil condition is established, with its own will, which can be credibly taken as an expression of the general will of humanity, all territorial rights of individual states, together with their particular property rights regimes, remain, to a certain degree, provisional.