Smith discusses how Kant used his theory of property rights to justify government, and how he distinguished physical possession from rightful ownership.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

Before proceeding with a discussion of Kant’s conception and defense of private property, it is crucial to understand that his view of the proper role of government was essentially the same as that defended by Ayn Rand and many other modern libertarians. As Howard Williams put it in Kant’s Political Philosophy (St. Martin’s Press, 1983, p. 164–5):

Kant does not regard the State as embodying a higher good above and beyond that of the good of the individuals composing it. In a genuinely [classical] liberal fashion Kant believes the State exists so individuals might justly pursue their own private interests….In his view, the State exists to make possible individual liberty, it does not provide the content of this liberty.

I have stressed Kant’s defense of a limited government in order to offset the impression that readers may have gotten from my last essay, in which I discussed Kant’s notion of a hypothetical social contract and his unqualified opposition to the rights of resistance and revolution, even against tyrannical governments. Kant was a peculiar blend of radical individualism and political conservatism. Beginning with the moral premise of individual autonomy that might seem to lead logically to anarchism (as Kantian scholar Robert Paul Wolff argued in In Defense of Anarchism), Kant ended up, practically speaking, on the most conservative wing of classical liberalism. Kant’s theory of social contract played a major role in this significant change of direction, but equally important was Kant’s theory of private property rights.

A satisfactory explanation of how Kant used property rights to justify government must await my next essay; for now suffice it to say that Kant did not believe that property rights are the creation of governments. On the contrary, he maintained that private property rights would exist in a state of nature—a society without government and established laws. As Kant wrote: “A civil constitution only provides the juridical condition under which each person’s property is secured and guaranteed to him, but it does not actually stipulate and determine what that property shall be.” (The Metaphysical Elements of Justice [MEJ], trans. John Ladd, Bobbs‐​Merrill, 1965, p. 65.)

Although property rights would exist in a society without government, Kant called these rights “provisional” because they would lack a reliable method of enforcement. Only with a government that enforces an impartial rule of law would property rights qualify as “juridical,” because only a government can establish a consistent system of justice in which the property rights of every person are protected and enforced equally. On its face this position would appear to agree with the standard doctrine defended by previous classical liberals, but Kant justified his position with unusual arguments that were sometimes unique.

In his discussion of property rights, Kant drew a distinction between the “sensible” (or “empirical”) possession of an external object and the “intelligible” (or “rational”) possession of an object. By “sensible possession” Kant meant “the physical possession of an object” which we are capable of using. He also called this “empirical” possession because it is something we can observe with our senses, as when we see a person holding an apple in his hand. But from the empirical fact that I am holding an apple in my hand, from the fact that I “possess it physically,” it does not necessarily follow that I own the apple in question. Ownership differs from physical possession; to own the apple means that I have moral authority in regard how others may use my apple, even when I am not in physical possession of it. Ownership pertains to an abstract, moral relationship, not to the empirical fact of possession, and we cannot derive the concept of ownership from the concept of physical possession alone, even if we may reasonably assume, as a defeasible presumption, that a person who possesses an object also owns that object.

This is why Kant called ownership intelligible possession, or rational possession, in contrast to physical possession. The latter gives one only physical control over an object, whereas ownership gives one the moral authority to say how an object shall be used, even when it is not in one’s physical possession. The concept of ownership abstracts all spatial and temporal elements from a situation (who possesses what at a particular point in time) and focuses instead on who has the moral right to control an object. Here is how Kant put the matter:

I cannot call an object in space (a corporeal thing) mine unless I can claim still another actual (nonphysical) kind of possession of that object even when I do not have physical possession of it.

Thus, for example, I do not call an apple mine simply because I hold it in my hand (possess it physically), but only if I can say: “I possess it even when I let it out of the hand that is holding it.” Similarly, I cannot say of the land on which I am camping that it is mine just because I am camping on it; I can say that is it mine only if I can assert that it is my possession even if I leave the place in question. (MEJ, p. 54.)

Suppose someone wrenches the apple out of my hand. In this case, according to Kant, we may say that my freedom to use the apple (assuming the apple is unowned) has been violated, but we may not say that my property right in the apple has been violated unless I own the apple in question. Similarly, suppose someone forcibly carries me off a parcel of unowned land. Again, we may say that my freedom to use unowned land (a right I share with everyone else) has been violated by the aggressor, but “he would not injure me as far as my external property is concerned unless I could also claim to have possession of the object even without detention [possession] of it; in the present case, I cannot call these objects (the apple and the camp) mine (MEJ, p. 54).

Here and in similar passages we see Kant engaged in what he called the “deduction” of a concept. Kant used the term “deduction” in an idiosyncratic way. By this word he did not mean, as we normally do, a process of reasoning from premises to conclusion. Rather, by “deduction” Kant meant breaking down a concept into its constituent elements and then examining each element in turn for its source and soundness. I mention this unusual usage because it is far from the only instance that may confuse readers unfamiliar with Kant’s technical vocabulary but who attempt to read Kant first‐​hand. Another possible source of confusion is the distinction Kant drew between “understanding” and “reason.” For Kant “understanding” signifies our ability to form concepts based on our sensory experiences, whereas our “reason” is concerned solely with a priori concepts, that is, only with concepts that are rooted in “pure reason” without any reference to sense perception.

Failure to appreciate Kant’s distinction between “understanding” and “reason” can easily lead to misunderstandings about what he was attempting to say. Such misunderstandings are often found in the criticisms of Kant written by Objectivists who, following Ayn Rand’s lead in viewing “reason” as “the faculty that identifies and integrates the material provided by man’s senses,” quote Kant on reason to “prove” that he wished to drive a wedge between reason and the external world. Well, this is true in a way, given Kant’s specialized concept of “reason” as dealing solely with a priori knowledge, but it is only fair to acknowledge that Kant and Rand used “reason” to mean different things, and that the function served by “reason” in Rand’s philosophy was called the “understanding” by Kant. Although I happen to believe that Kant’s distinction between “reason” and “understanding” is artificial and ultimately unjustified, our agreement or disagreement with a philosopher should not warp our attempt to understand, as objectively as possible, what that philosopher meant to say. It will not do to quote a few passages from Kant about “reason” and then make sweeping, negative generalizations, as if Kant and Rand used “reason” with identical meanings. Right or wrong, Kant deserves the same fair hearing that we expect from readers and critics of Rand.

I apologize, more or less, for this bit of preaching, but some broader issues are involved. Most importantly, as I noted in a previous essay, we needn’t agree with everything a philosopher had to say in order to benefit from some features of his philosophy. We can be selective, after all, rejecting some of his arguments while agreeing with others. Moreover, even if we disagree with a particular point, that point, if presented intelligently, may cause us to think more rigorously about our own beliefs and thereby motivate us to fortify our own doctrines with better reasoning. This lesson, I believe, is especially applicable to Kant’s discussion of property. So far I have covered only Kant’s distinction between physical and intelligible possession, but as Kant delved deeper into this distinction he hit on a number of points that deserve serious consideration. So in my next essay I shall pick up where I left off in Kant’s treatment of property rights.

Kant’s conception of property rights was the foundation of his argument that a government is absolutely necessary, even to the point that we may coerce people to submit to a government against their wills. This position was a significant departure from the Lockean strain in classical liberalism, according to which the founding of a civil society requires the unanimous consent of every member. Kant, in my judgment, fudged on some key issues to get where he wanted to go, but Kant was not alone in this. Lockeans, for example, fudged to avoid the anarchistic implications their individualistic theory of rights and government by consent by invoking the notion of “tacit consent,” which served as a rationale for all occasions whenever the legitimacy of the state was called into question.