IIa: Rights of the Individual (Connatural Rights)
We have connatural rights concerned with relative freedom (connatural rights of the third class), and one of the rights in this category is the right to acquire more rights, in ways consistent with and appropriate to our connatural rights. These acquired rights result not from personhood or human nature, but from human action; but of course, since their foundation lies in the connatural rights, even acquired rights are, so to speak, a contingent extension of the connatural rights. To have this extension, we have to pay much closer attention to a point already noted, namely, that every basic right consists of a law and a title. The law provides the moral structure of the right and its possibility, and the title is the fact that determines how it is relevant and actual in a given case. To be the title of a right, a fact must not itself involve any injustice (which would make it conflict with its law) and it must connect with moral activity, what was previously called the 'governance'. This moral activity, if its relevance is just the activity itself, is what has been called jural freedom; if it works thorugh an instrument, we have proprietà or jural own-ness. Every acquired right, by definition, has to have some associated act of acquisition that provides the title. So we need to consider how this works first with jural freedom and then with proprietà.
The kind of connatural jural freedom we have cannot be expanded or reduced; it is just that which we have in our own person. But obviously our interactions with the world around us admits of greater or lesser 'reach' in our actions. We can increase our sphere of freedom by increasing the 'reach' of our actions, often by overcoming or working around things that interfere with our actions. We do this fundamentally by actively exercising the freedom we have naturally, and making other things our own in some way. This is complicated by the fact that we live in a world in which other people are doing the same, and our attempts to extend our sphere of proprietà can sometimes interfere with the attempts of others to extend their own spheres of proprietà. I claim something as my property; this limits your ability to claim it as your property. And, of course, if we both do, we have a conflict. Two women may pursue the same man, which is a conflict, and if one woman marries him, that puts him in her sphere of proprietà and complicates the attempt the other woman to put the man in her sphere of proprietà. This conflict will end up being important, because on Rosmini's account civil society exists to coordinate action and set frameworks in a way that reduces and minimizes these conflicts in our attempts to expand our rights. But civil society cannot justly prevent us from expanding our personal sphere, where this can be done in a reasonable way which other people can take into account without harming their own expansions of their personal spheres. This is the basic level of acquired jural freedom, which Rosmini characterizes as "the faculty to do all that is lawful in itself except what is forbidden by law" (p. 91).
In acquired rights that consist in proprietà itself, the proper-ness or own-ness lies in a connection that is made between something else and ourselves, so that that something else is instrumental to our own ends. The act of acquisition consists of forging this connection. We can do this in a very simple way -- for instance, I can pick a spot in the park for my picnic and thereby make it my own, although temporarily and in a limited way. But I could also buy or homestead a parcel of land and make it my own in a stronger and more permanent way, for my enduring and continual use. Rosmini speculates that originally people mostly just did the first -- when people were few and the world was large, people just staked out places to be for the brief periods that they needed them, and then moved on and did the same without retaining much connection to where they had been. They just used things for the present. The second way of making things one's own is more complicated, and involves four levels:
(1) Right of Relative Freedom of Action -- We have a right to any lawful action that does not encroach on another person's proprietà.
(2) Right of Ownership of Action -- In exercising our relative freedom, we engage in an action that incorporates something as part of our action. The action itself is part of our proprietà (ownership), and we have made the other things instrumentally part of the action in at least a basic way.
(3) Right of Relative Freedom to the Thing -- Where the thing incorporated instrumentally into our action becomes adjoined to us -- e.g., it has no strings already attached and we want to keep using it instrumentally -- we can do so. This can be the case even if it is in some sense not ours fully and enduringly.
(4) Right of Ownership over the Thing -- Where we have joined the thing to ourself as an enduring, continual instrument and thus increased our power to act more or less permanently, we have brought the thing fully into our proprietà (own-ship), and it is now said to be our own.
For instance, we are free to act in ways that relate to unclaimed land (1) and stake out a spot useful to us (2) and use it (3) in a way that makes it recognizably our land-property (4). Likewise, two people can interact with each other (1) and show interest in each other (2) so as to create a stable relationship (3) that can be made permanent in marriage (4), so that they now enduringly belong to each other, each one the other's own spouse. Note again, that we have to recognize that bringing something into our proprietà does not necessarily mean that we possess it as nothing but an instrument (like land or house or even horse), but only that it becomes part of who we are in a way instrumental to our ends. Just as you do not own yourself in the way you own property you buy, so your friends, your spouse, your children, your city, are not your own in the way property you buy is your own -- but they are your own, extensions of your own person. This is fundamentally important. On Rosmini's account of rights, we are not atomistic individuals; our rights make us juridically overlap with each other, and it is out of these juridical overlaps that societies and communities are formed. Every person has other persons as extended parts of his own person, as part of his proprietà.
To be relevant to rights at all, the connection between us and the other thing that becomes our own must be simultaneously physical, intellectual, and moral, each of which arises from two things:
I. Physical Connection
--- A. A real relationship of use between a person and something else.
--- B. Taking possession of a thing by some physical act.
II. Intellectual Connection
-- A. An act of understanding the thing as good for oneself in some way.
-- B. An act of judging that the thing may be taken.
III. Moral Connection
-- A. An act of intending to take possession of a thing for our own use.
-- B. A jural quality in the act by which the thing becomes in some sense part of ourself, so that a jural duty arises in others to take that into account.
Ignoring any of these connections leads to a distorted conception of acquired rights involving proprietà; the physical connection is necessary for the title, the moral connection for the law, and the intellectual connection for putting them together.
So what are the particular ways in which we bring things into our proprietà, or, in other words, what are the kinds of title that we have for our acquired rights over other things?
The first kind of title is, in jurisprudence, universally known as occupancy. This is the simplest title in which all three kinds of connection (physical, intellectual, and moral) arise, and its limitations are those of simple versions of connection; you obviously can only occupy the occupiable, and the occupiable has to be something that can be used in a non-injurious way and that we can 'take possession of'. We take possession of things by some form of work, either preparatory work, as in fencing a piece of land, or productive work, as in cultivating a field, or consumptive work, as in putting logs on a fire, or craft and productive skill, as in constructing a machine. This kind of possession is not strictly exclusive; it does not prevent other people's harmless and reasonable use of what is possessed. It just gives a priority to the use of the owner, and thereby excludes anything that inconveniences the owner or interferes with their use. All of this is on the physical side. On the moral side, occupancy also requires some sort of designation, a sign of occupancy. You can't be occupying something if nobody can possibly tell. The sign doesn't need to be elaborate -- mere verbal or written declaration can suffice if custom makes it recognizable as a designation of something as belonging to you.
Occupancy is not exclusive in another way; more than once person can occupy the same thing, either separately or as a collective body. Rosmini's examples (p. 146) are when two hunters, legally hunting, shoot the same deer at the same time, so that they both have a right to it separately, with two different occupations, whereas a society of persons could take possession of a deserted island together, in a single occupation. Such occupation requires that the occupiers come to a mutually beneficial agreement that modifies or modulates the exercise of each occupier's rights so that they can be consistent.
Every person, distinct from the connatural right he has over himself, also can develop acquired occupancy-rights over himself; we do this, for instance, when we grow up and become adults. We can also occupy others with their consent, although Rosmini thinks that this is not the foundation of any new right but a transmission of already existing rights. We can also occupy others who are incapable of having occupancy-rights over themselves. None of these kinds of occupancy. which Rosmini calls seigniory or lordship or dominion, can be occupation of a person as such (that would interfere with their connatural rights, which acquired rights can never do). What you can occupy are publicly available aspects of their interaction with the world, their exercised faculties. A common example would be having a right to someone's labor due to an employment contract; the labor of a person is not something separate and detachable from the person, so employment is a consensual occupation of a person in the respect of the agreed-upon labor, in an agreement in which the employer transmits occupancy-rights for the wages in order to have occupancy-rights to the labor transmitted to them. Not all such occupancy is consensual, however; Rosmini's example is an abandoned baby whom someone takes responsibility for; someone taking responsibility for the baby doesn't need the consent of the baby to have a right (always consistent with the baby's connatural rights) to move the baby place to place, diaper them, and so forth, despite the fact that these would sometimes be intolerable usurpations of authority if done to adults. The reason for this is that babies have not acquired occupancy-rights over themselves yet; they have the physical connection required, but not the intellectual and moral connections.
The right of seigniory over children is a provisional right because the relevant occupation is necessarily provisional -- as the child grows, their scope of action increases, and their connatural freedom and rights over this action have to be accommodated by any acquired right, until eventually there is no more room for occupancy by another. Children also have certain moral duties (gratitude, submission, restitution) because the adult is the benefactor who fosters them (so that fostering can be a distinct title of rights); but the jural duties here are not much different from any other jural duties in any other instance of beneficence, which are usually quite limited.
However, children are an interesting case because there is another, more important title that might be had with respect to them: generation. Parents, of course, typically have this title with respect to their children, and this is distinct from the titles they have by occupancy or by beneficence. It is the foundation for the right that historically has been known as patria potestas and that forms the household or family. Almost universally children have been seen as partially extensions of their parents and as having a direct, personal, natural connection to them. This title, like that of occupancy, must presuppose the connatural rights of the child; the child cannot be a mere means to the parent because the child is a person. But parental rights are over the child as a means to the mutually consistent ends of the child and the parents. A difference between the title of generation and that of occupancy is that occupancy with regard to children is provisional, whereas generation is not. As such, it structures the family as a collective person, a unified society through time, given order by the parents. Within this society (and limited by its bounds), the parent has the right to correct and punish the wayward child and the right to administer the goods of the child where necessary. (Abuses and usurpations arise when people fail to recognize the 'wayward' in the first case and the 'where necessary' in the second, or when attempts are made to extend this outside the family/household, but as long as this is avoided, Rosmini thinks both parental rights are quite extensive.)
Unlike connatural rights, acquired rights are subject to change; the very first forms they take are not the only forms they can take, because they can be transmitted from person to person and they can be modified in their exercise. We therefore need to consider their transmission and modification.
to be continued
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Antonio Rosmini, The Philosophy of Right, Volume 2: Rights of the Individual, Cleary and Watson, trs. Rosmini House (Durham, UK: 1993).
