第 11 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  cannon can carry from the shore… all is included in my possession; and
  the sea is thus far closed (mare clausum)。 But as there is no site for
  occupation upon the wide sea itself; possible possession cannot be
  extended so far; and the open sea is free (mare liberum)。 But in the
  case of men; or things that belong to them; becoming stranded on the
  shore; since the fact is not voluntary; it cannot be regarded by the
  owner of the shore as giving him a right of acquisition。 For shipwreck
  is not an act of will; nor is its result a lesion to him; and things
  which may have come thus upon his soil; as still belonging to some
  one; are not to be treated as being without an owner or res nullius。
  On the other hand; a river; so far as possession of the bank
  reaches; may be originally acquired; like any other piece of ground;
  under the above restrictions; by one who is in possession of both
  its banks。
  PROPERTY。
  An external object; which in respect of its substance can be claimed
  by some one as his own; is called the property (dominium) of that
  person to whom all the rights in it as a thing belong… like the
  accidents inhering in a substance… and which; therefore; he as the
  proprietor (dominus) can dispose of at will (jus disponendi de re
  sua)。 But from this it follows at once that such an object can only be
  a corporeal thing towards which there is no direct personal
  obligation。 Hence a man may be his own master (sui juris) but not
  the proprietor of himself (sui dominus); so as to be able to dispose
  of himself at will; to say nothing of the possibility of such a
  relation to other men; because he is responsible to humanity in his
  own person。 This point; however; as belonging to the right of humanity
  as such; rather than to that of individual men; would not be discussed
  at its proper place here; but is only mentioned incidentally for the
  better elucidation of what has just been said。 It may be further
  observed that there may be two full proprietors of one and the same
  thing; without there being a mine and thine in common; but only in
  so far as they are common possessors of what belongs only to one of
  them as his own。 In such a case the whole possession; without the
  use of the thing; belongs to one only of the co…proprietors
  (condomini); while to the others belongs all the use of the thing
  along with its possession。 The former as the direct proprietor
  (dominus directus); therefore; restricts the latter as the
  proprietor in use (dominus utilis) to the condition of a certain
  continuous performance; with reference to the thing itself; without
  limiting him in the use of it。
  SECTION II。 Principles of Personal Right。
  18。 Nature and Acquisition of Personal Right。
  The possession of the active free…will of another person; as the
  power to determine it by my will to a certain action; according to
  laws of freedom; is a form of right relating to the external mine
  and thine; as affected by the causality of another。 It is possible
  to have several such rights in reference to the same person or to
  different persons。 The principle of the system of laws; according to
  which I can be in such possession; is that of personal right; and
  there is only one such principle。
  The acquisition of a personal right can never be primary or
  arbitrary; for such a mode of acquiring it would not be in
  accordance with the principle of the harmony of the freedom of my will
  with the freedom of every other; and it would therefore be wrong。
  Nor can such a right be acquired by means of any unjust act of another
  (facto injusti alterius); as being itself contrary to right; for if
  such a wrong as it implies were perpetrated on me; and I could
  demand satisfaction from the other; in accordance with right; yet in
  such a case I would only be entitled to maintain undiminished what was
  mine; and not to acquire anything more than what I formerly had。
  Acquisition by means of the action of another; to which I
  determine his will according to laws of right; is therefore always
  derived from what that other has as his own。 This derivation; as a
  juridical act; cannot be effected by a mere negative relinquishment or
  renunciation of what is his (per derelictionem aut renunciationem);
  because such a negative act would only amount to a cessation of his
  right; and not to the acquirement of a right on the part of another。
  It is therefore only by positive transference (translatio); or
  conveyance; that a personal right can be acquired; and this is only
  possible by means of a common will; through which objects come into
  the power of one or other; so that as one renounces a particular thing
  which he holds under the common right; the same object when accepted
  by another; in consequence of a positive act of will; becomes his。
  Such transference of the property of one to another is termed its
  alienation。 The act of the united wills of two persons; by which
  what belonged to one passes to the other; constitutes contract。
  19。 Acquisition by Contract。
  In every contract there are four juridical acts of will involved;
  two of them being preparatory acts; and two of them constitutive acts。
  The two preparatory acts; as forms of treating in the transaction; are
  offer (oblatio) and approval (approbatio); the two constitutive
  acts; as the forms of concluding the transaction; are promise
  (promissum) and acceptance (acceptatio)。 For an offer cannot
  constitute a promise before it can be judged that the thing offered
  (oblatum) is something that is agreeable to the party to whom it is
  offered; and this much is shown by the first two declarations; but
  by them alone there is nothing as yet acquired。
  Further; it is neither by the particular will of the promiser nor
  that of the acceptor that the property of the former passes over to
  the latter。 This is effected only by the combined or united wills of
  both; and consequently so far only as the will of both is declared
  at the same time or simultaneously。 Now; such simultaneousness is
  impossible by empirical acts of declaration; which can only follow
  each other in time and are never actually simultaneous。 For if I
  have promised; and another person is now merely willing to accept;
  during the interval before actual acceptance; however short it may be;
  I may retract my offer; because I am thus far still free; and; on
  the other side; the acceptor; for the same reason; may likewise hold
  himself not to be bound; up till the moment of acceptance; by his
  counter…declaration following upon the promise。 The external
  formalities or solemnities (solemnia) on the conclusion of a contract…
  such as shaking hands or breaking a straw (stipula) laid hold of by
  two persons… and all the various modes of confirming the
  declarations on either side; prove in fact the embarrassment of the
  contracting parties as to how and in what way they may represent
  declarations; which are always successive; as existing
  simultaneously at the same moment; and these forms fail to do this。
  They are; by their very nature; acts necessarily following each
  other in time; so that when the one act is; the other either is not
  yet or is no longer。
  It is only the philosophical transcendental deduction of the
  conception of acquisition by contract that can remove all these
  difficulties。 In a juridical external relation; my taking possession
  of the free…will of another; as the cause that determined it to a
  certain act; is conceived at first empirically by means of the
  declaration and counter…declaration of the free…will of each of us
  in time; as the sensible conditions of taking possession; and the
  two juridical acts must necessarily be regarded as following one
  another in time。 But because this relation; viewed as juridical; is
  purely rational in itself; the will as a law…giving faculty of
  reason represents this possession as intelligible or rational
  (possessio noumenon); in accordance with conceptions of freedom and
  under abstraction of those empirical conditions。 And now; the two acts
  of promise and acceptance are not regarded as following one another in
  time; but; in the manner of a pactum re initum; as proceeding from a
  common will; which is expressed by the term 〃at the same time;〃 or
  〃simultaneous;〃 and the object promised (promissum) is represented;
  under elimination of empirical conditions; as acquired according to
  the law of the pure practical reason。
  That this is the true and only possible deduction of the idea of
  acquisition by contract is sufficiently attested by the laborious
  yet always futile striving of writers on jurisprudence such as Moses
  Mendelssohn in his Jerusalem… to adduce a proof of its rational
  possibility。 The question is put thus: 〃Why ought I to keep my
  Promise?〃 For it is assumed as understood by all that I ought to do
  so。 It is; however; absolutely impossible to give any further proof of
  the categorical imperative imp