The usual definition of real right, or "right in a thing" (jus reale, jus in re), is that "it is a right as against every possessor of it." This is a correct nominal definition.But what is it that entitles me to claim an external object from any one who may appear as its possessor, and to compel him, per vindicationem, to put me again, in place of himself, into possession of it? Is this external juridical relation of my will a kind of immediate relation to an external thing? If so, whoever might think of his right as referring not immediately to persons but to things would have to represent it, although only in an obscure way, somewhat thus.A right on one side has always a duty corresponding to it on the other, so that an external thing, although away from the hands of its first possessor, continues to be still connected with him by a continuing obligation;and thus it refuses to fall under the claim of any other possessor, because it is already bound to another.In this way my right, viewed as a kind of good genius accompanying a thing and preserving it from all external attack, would refer an alien possessor always to me! It is, however, absurd to think of an obligation of persons towards things, and conversely; although it may be allowed in any particular case to represent the juridical relation by a sensible image of this kind, and to express it in this way.
The real definition would run thus: "Right in a thing is a right to the private use of a thing, of which I am in possession- original or derivative- in common with all others." For this is the one condition under which it is alone possible that I can exclude every others possessor from the private use of the thing (jus contra quemlibet hujus rei possessorem).For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it.By an individual act of my own will I cannot oblige any other person to abstain from the use of a thing in respect of which he would otherwise be under no obligation; and, accordingly, such an obligation can only arise from the collective will of all united in a relation of common possession.Otherwise, I would have to think of a right in a thing, as if the thing has an obligation towards me, and as if the right as against every possessor of it had to be derived from this obligation in the thing, which is an absurd way of representing the subject.
Further, by the term real right (jus reale) is meant not only the right in a thing (jus in re), but also the constitutive principle of all the laws which relate to the real mine and thine.It is, however, evident that a man entirely alone upon the earth could properly neither have nor acquire any external thing as his own;because, between him as a person and all external things as material objects, there could be no relations of obligation.There is therefore, literally, no direct right in a thing, but only that right is to be properly called "real" which belongs to any one as constituted against a person, who is in common possession of things with all others in the civil state of society.
12.The First Acquisition of a Thing can only be that of the Soil.
By the soil is understood all habitable Land.In relation to everything that is moveable upon it, it is to be regarded as a substance, and the mode of the existence of the moveables is viewed as an inherence in it.And just as, in the theoretical acceptance, accidents cannot exist apart from their substances, so, in the practical relation, moveables upon the soil cannot be regarded as belonging to any one unless he is supposed to have been previously in juridical possession of the soil, so that it is thus considered to be his.
For, let it be supposed that the soil belongs to no one.Then Iwould be entitled to remove every moveable thing found upon it from its place, even to total loss of it, in order to occupy that place, without infringing thereby on the ******* of any other; there being, by the hypothesis, no possessor of it at all.But everything that can be destroyed, such as a tree, a house, and such like- as regards its matter at least- is moveable; and if we call a thing which cannot be moved without destruction of its form an immoveable, the mine and thine in it is not understood as applying to its substance, but to that which is adherent to it and which does not essentially constitute the thing itself.
13.Every Part of the Soil may be Originally Acquired; and the Principle of the Possibility of such Acquisition is the Original Community of the Soil Generally.
The first clause of this proposition is founded upon the postulate of the practical reason (SS 2); the second is established by the following proof.
All men are originally and before any juridical act of will in rightful possession of the soil; that is, they have a right to be wherever nature or chance has placed them without their will.
