3. Third Conclusion

87. The third conclusion is that ‘when the precept of the law of nature about having all things common was revoked, and when, as a result, the license to appropriate and make distinction between common things was conceded, no actual distinction was made by the law of nature or by the divine law’.

88. Not by the divine law, as is proved by the remark of Augustine adduced above [n.80], “By what rights”

89. Not by the law of nature, as seems to be probable, because it does not appear that the law of nature may make opposite determinations, and that law has made determination in the case of human nature to the fact that all things are common.

90. Nor may it be said that the proposition in the Institutes of Justinian (II ch.1 n.12, ‘About the division of things’, ‘Wild beasts’), that “What among goods is no one’s, is conceded to him who occupies it,” belongs to the law of nature. But although, immediately after natural apprehension of the fact that things are to be divided, that proposition arises as probable and manifest, yet it is more reasonable to say that it is not of the law of nature but of the positive law. And from this follows that distinction of ownerships was first made by some positive law.