One of the major topics of Wolff’s earlier volumes of Jus naturae was the distinction between the primaeval community of things and the later introduction of private ownership. Wolff considered the move toward the latter a good thing, but now he reveals that the ownership is not an absolute thing: there is a tacit assumption that if a person is bereft of necessities of life, they can even use things owned by another to satisfy these necessities. This right he calls a residual right remaining from the primaeval community.
This residual right, Wolff continues, is but an example of the more extensive class of rights of necessity (jus necessitatis). By this he refers to any right to do something that is usually not allowed, for the sake of some indispensable obligation that could not be otherwise satisfied. In other words, a right of necessity occurs in cases where several laws collide with one another. Indeed, he adds, all natural laws have tacit exceptions that they need not be followed, if some inevitable necessity prevents this. For instance, although we are usually obligated to help people in danger, the case is different if we are also in danger and have to first and foremost save ourselves.
While duties toward others can be overridden by right of necessity, Wolff insists, duties toward God cannot. In other words, Wolff thinks God should be worshipped, no matter what the necessity. Immediately after saying this, Wolff notes some exceptions. We should worship God internally, but we cannot do this, if we happen to be out of our mind – still, even in this case, Wolff notes, the obligation to worship exists, but it has just been suspended until we come back to our senses. In case of external worship, such as going to church, on the other hand, there might be some other duty that requires immediate satisfaction and thus prevents us from going to church for the time being.
Wolff goes into more detail investigating various cases where a right of necessity holds. One very classical example is that of shipwreck, with people trying to save themselves by using a boat that cannot carry all the passengers. Wolff thinks that, in general, first come is first served, and if all enter the boat at the same time, the stronger ones can just throw away the weaker ones. The case is somewhat different, he thinks, if the owner of the boat is present, as they have the right to decide who is to board the boat.
An example particularly relevant to rights remaining from the primaeval community occurs when a person is starving, but cannot obtain food by purchase, work or even begging. In such a state, Wolff says, the person is allowed to just take what they need from others, if necessary, even by using violence, and this is not to be seen as theft or robbery. More generally, if a person necessarily requires the use of a thing they cannot otherwise obtain, they can use such a thing belonging to someone else: for example, we are allowed to use weapons of another person, if we are threatened by an assailant and have no means of our own to defend ourselves. Even so, Wolff adds, the thing in question should be returned to its original owner, if possible. If not, for instance, if the thing is consumed by its use, like a piece of food, similar thing or at least something of equal worth should be returned.
A case that intrigues Wolff very much is that of a common danger making it necessary to destroy the property of a person, say, when an impending shipwreck necessitates throwing some cargo in the sea or when preventing the spread of fire requires wrecking some building. The basic principle is simple – if the destruction is necessary, it can be done, but the damages are to be compensated – but the more intricate question is who is to contribute in each case. In the case of cargo thrown from the ship, Wolff suggests that the compensation should be the duty of the owner of the ship and of everyone who had cargo that was not thrown in the sea, and to determine how much each is to contribute, the value of the destroyed and the saved cargo and of the ship with all instruments is to be estimated. To make matters even more complicated, Wolff adds that passengers and the payment they have contributed should also be taken into account, as well as the weight of various pieces of cargo and even of the passengers (e.g. if someone has thrown away lighter, but more expensive cargo, they should be more responsible of the damages). And of course, if the ship sinks, even if cargo was thrown in sea, no contribution is required.
In the case of the house destroyed because of raging fire, Wolff explains, the owners of the buildings that the fire could have reached should first and foremost contribute to the compensation for the damages. Wolff makes two important exceptions: firstly, those whose buildings were not saved, but burned down, need undoubtedly not contribute, and secondly, if the destroyed building was already being burned to ground, no one has to compensate for anything. Finally, if there was a certain person who was responsible, either through deliberate choice or through negligence, of the fire, this person is solely responsible for the compensation.
Wolff argues that the rights remaining from the primaeval community also go further than mere jus necessitatis. This is the case with what Wolff calls res innoxia utilitas, that is, something that we can use to our advantage without harming anyone, not even the owner of the thing, An example Wolff provides is a river: its owner is not hurt in any way, if someone draws water from it. A perhaps more important case of innoxia utilitas is that of using other people's lands. Passage through those lands and their rivers, roads and bridges should be allowed for both people and their merchandise, unless there is reasonable fear for damages, Wolff insists, although the owners might ask for a fee to provide for the maintenance of the road network. Wolff even thinks one is allowed to remain for a time in the lands of others for just reasons, and homeless people should even have the right of perpetual habitation. People should even have a right to acquire things they need for living for a fair price, which requires the maintenance of inns for travelers.
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