ABSTRACT
What gives this line of argument its weight is that we find in it a moral theory of the right of the first occupier. Kant does not at all shirk this consequence of his theory. He does not hesitate to claim as his own the well-known saying: ‘fortunate, he who is in possession’, beati possidentes. For this privilege however,
usually put forward as a social necessity or convention or fiction, he undertakes to find a basis in law. “This prerogative of right that follows from the fact of empirical possession according to the formula of beati possidentes, does not come about because the possessor, presumably an honest man, is not bound to prove that his possession is legitimate but because…everyone is invested with the faculty of having as his own any object exterior to his will.” (Princ. of Priv. Right, para, ix.) There is, then, an element in the concept of property here set out quite different from that of labour, and that is why it is important to appreciate this theory which, in itself, makes us feel what there is one-sided about the first theory. There can indeed be no doubt that in any occupancy not contrary to a preexisting right, there is an act that confers certain rights. At all times in history, mankind has been wont to grant privileges of right to a first possession. The declaration of will by which we assert our intention to appropriate an object that has no actual owner at the time, is not without moral value and has a right to some respect.
