sition that "the right to be and to continue
to be implies a right to the conditions of existence." Accordingly he
says that the idea of property is inseparably connected "not only with
the life of man but with organic existence in general"; that "life
confers rights to its exercise corresponding in extent to the powers
of which it consists." When, however, this is applied in explaining
the basis of the present proprietary system in all its details resort
must be had to a type of artificial reasoning similar to that employed
by the jurists of the seventeenth and eighteenth centuries. The
abstract idea of ownership is not the only thing the legal philosopher
has to consider. Moreover the reasoning by which that application is
made may not be reconciled with the arguments by which the doctrine
of _res extra commercium_ is regarded also as a bit of natural law.

Although it purports to be wholly different, the positive theory of
the basis of property is essentially the same as the metaphysical.
Thus Spencer's theory is a deduction from a fundamental "law of equal
freedom" verified by observation of the facts of primitive society.
But the "law of equal freedom" supposed to be ascertained by
observation, in the same way in which physical or chemical laws are
ascertained, is in fact, as has often been pointed out, Kant's formula
of justice. And the verification of deductions from this law by
observation of the facts of primitive civilization is not essentially
different from the verification of the deductions from the
metaphysical fundamental law carried on by the historical jurists. The
metaphysical jurist reached a principle metaphysically and deduced
property therefrom. The historical jurist thereupon verified the
deduction by showing the same principle as the idea realizing itself
in legal history. In the hands of the positivists the same principle
is reached by observation, the same deduction is made therefrom, and
the deduction is verified by finding the institution latent in
primitive society and unfolding with the development of civilization.
The most notable difference is that the metaphysical and historical
jurists rely chiefly on primitive occupation of ownerless things,
while the positivists have been inclined to lay stress upon creation
of new things by labor. In any event, laying aside the verification
for the moment, the deduction as made by Spencer involves the same
difficulties as those involved in the metaph