A Short Critical Survey
(Author’s note: This essay was written some ten years ago and may not reflect my current views in every detail although it does still represent the general tenor of my thought.)
I have another motive for starting with rights and property rights. I am politically libertarian, but I have not, for the most part, been terribly impressed either by standard libertarian accounts of property rights in general or by standard libertarian critiques of intellectual property rights in particular. Here and in the essays that will eventually follow, I shall severely criticize standard libertarian approaches to these issues.
A short taxonomy of rights
What follows here is a very short and simplified taxonomy of “rights” — a taxonomy, I hasten to add, that is not in any way original with me. Essentially it is a modified version of Judith Jarvis Thomson’s own adaptation, for use in ethics, of Wesley Hohfeld’s account of legal rights and duties.
A “right,” in the most general sense of the word, is simply a moral claim. Such a claim seems to presume (unless one can hold a right against oneself) that there are at least two parties involved, namely, the person who holds the right and at least one person against whom the right is held. (This point seems trivial, but we shall see later that the failure to keep it clearly in mind can engender all sorts of confusion.)
We are not making any assumptions about whether the claims in question are absolute or “un-trump-able,” or even about whether they are legally enforceable. Those are separate questions and we shall address them later. For us, a “right” is a prima facie moral claim of any kind — independently of its possible indefeasibility, and independently also of how, or even whether, it may be enforced.
We are also not making any assumptions about either the metaphysical nature of rights or the epistemological grounds on which we assert knowledge of such rights. My own account is, roughly, idealistic/teleological in metaphysics and intuitionist-constructivist in epistemology, but that does not (yet) concern us here. All we require at this point is that moral claims do exist, however we account for them metaphysically and however we account for our knowledge of them epistemologically.
We are also not making any assumptions about who does or does not count as a “person” in the required sense. There is arguably a presumption that the person against whom a right is held must be capable of grasping and acting on moral distinctions, but we are making no such presumption about the bearer of the right. We are therefore not assuming that all bearers of rights are sane, mature, rational, adult human beings, or even that they are human beings at all.
The “claim” at issue in a right may be of any of several sorts. I may have a right against you that you should perform some positive act — say, that you should mow my lawn on Friday afternoon. This sort of right we shall call a positive right. I may have a right against you that you should refrain from performing some positive act — say, that you should not forcibly prevent me from mowing my own lawn. This sort of right we shall call a negative right.
In this sense, each right is the obverse side of a duty. Such duties, like the rights of which they are the flipsides, may be positive or negative: a duty to perform a positive act is a positive duty, and a duty to refrain from performing some positive act is a negative duty.
Under a strictly Hohfeldian taxonomy, some of these rights would be called “privileges” — “rights” in something less than the strictest sense, covering things that I may do. Along with a “privilege” I may also have certain moral claims against various sorts of interference, but on a strict Hohfeldian analysis these claims against interference are distinguishable from the privilege itself. I may have, for example, a “right” to jump up and down in front of my house while waving my arms around, in the sense that no one has a moral claim against me that I should refrain from doing so. This right is what Hohfeld would call a “privilege”, and it may or may not carry with it a claim against others that they not interfere with my jumping around. Nevertheless we shall not be fastidious here, especially since a privilege in the ordinary sense of the word seems stronger than this; it seems under ordinary circumstances to entail a duty of noninterference, which in turn is the obverse side of a right against interference.
Some rights may be more than prima facie claims. We shall say that a right is absolute in any respect in which it is never overruled by any other consideration. We shall say that a right is inalienable in any respect in which it cannot be transferred or otherwise given up.
A right may be “in rem” or “in personam“. By an “in rem” right we mean a right with respect to a “thing” or “object” that binds everyone else. By an “in personam” right we mean a right held specifically against certain persons, perhaps but not necessarily with respect to a “thing” or “object”.
A right that binds everyone else may also be called a universal right whether or not it is with respect to a “thing” or “object,” but we shall have to be careful to use this term only when there is no possibility of confusion. A “universal” right is not, in this sense, a right that is held by everyone, and we shall not use the term in any context in which it might be unclear or ambiguous. Generally we shall use the term “in rem” overbroadly and perhaps a little misleadingly, to describe any right held against all other persons. (This usage may not be all that misleading anyway; ordinarily we shall be able to conjure up some sort of “thing” or “object” with respect to which such a right is held. Really, any right has, or can be taken to have, some sort of “virtual object”.)
The use of “universal” here is a somewhat dangerous one for another reason: no moral claim is really “universal”. Suppose I own a ball-point pen. I may have a right against you that you should not take my pen; I may have a right against Smith that Smith should not take my pen; but I have no right against you that Smith should not take my pen. (And of course my claim against each of you could be broken out further into claims that you should refrain from various more specific sorts of action.) I do not, that is, hold a single right against both you and Smith; I hold a distinguishable claim (actually a huge number of distinguishable claims) against each of you. My “universal” right against theft resolves upon analysis into a vast congeries of concrete rights against distinguishable persons.
We shall want to be chary, therefore, of treating a moral claim as what would, in older neo-Hegelian parlance, have been called a “false universal” or “abstract universal”. A “universal” claim, in our sense, is really what would have been called a “concrete universal” — that is, an overarching system that coherently includes, in some sense expresses itself through or manifests as, but is not exhausted in specific claims against specific persons.
An alleged single “universal right” against theft, then, is an abstraction and a false universal; there is no single claim literally common to all my specific claims against theft. But it would be a mistake to conclude from this point that we simply have no universal claims or rights. In fact our specific claims make sense only within, and indeed take their meaning and moral necessity from, the single overarching system we have identified as a concrete universal. It is in this sense, and this sense only, that we shall refer to “universal” rights.
Bearing this in mind will help us in two respects. First, it will help us avoid thinking in aggregates or collectives ourselves; and second, it will help us see that a neo-Hegelian account of rights does not require us to think in aggregates or collectives. We may therefore be a little more sympathetic than libertarians usually are to a neo-Hegelian account of property rights.
At any rate, note carefully that each of these “dimensions” is distinguishable from the others. In particular, a universal or “in rem” right need not be absolute, and an absolute right may be a right either in personam or in rem. If I have a right against Jones that he shall never, ever, under any circumstances, say the word “gorse” in my presence, then I have an absolute right in personam against Jones. If a have a prima facie right against the entire world that I should not be forcibly prevented from turning on the lights in my house but this right is overruled in case of a wartime air raid by night, then I have a nonabsolute right in rem.
We have enough machinery at this point to start discussing property rights. The usual understanding of a property right is that it is a right against persons with respect to things. (We must be careful here not to confuse “property rights” with “rights in rem,” for they are not the same thing.) For our purposes it will be best to think of “property rights” as one extreme of a spectrum of rights.
Under ordinary theories of property, property rights generally consist of a “bundle of rights”, and this bundle typically includes (at least) three major types of right: rights to use, rights to exclude, and rights to transfer. A bundle of rights that includes rights of all three types is very “propertylike”. The more rights are missing from the bundle, the less the right looks like a property right.
Each type of right — use, exclusion, transfer — may be broken out further. I may have a right to use a piece of “property” only for certain purposes, as for instance when a zoning law prohibits my building a factory or a farm on my residential lot, or when your license to me of your intellectual property limits my rights to a specific “field of use”. I may have a right of exclusion that applies only to certain persons or that specifically fails to apply under certain conditions, as for instance when the police have a warrant to search my house or when a landlord reserves the right to inspect a rental property. I may be unable to transfer certain rights, as when (under a libertarian theory of self-ownership) I hold an inalienable property right in my own body, or when I hold a “moral right” of authorship in a copyrighted work and cannot transfer to another the “right of attribution”.
But in none of these cases of limitation would we simply say that there was no “property right” involved. It is therefore better to think of bundles of rights as being more or less “propertylike” to the degree to which they include rights of use, exclusion, and transfer.
A more common approach to property rights, at least among libertarian thinkers, is to start with “things” or “objects” and try to see how our relations with them give rise to rights. There are several problems with this approach that will emerge from the following discussion. One of these is that it presupposes a particular theory of how property rights are acquired (namely the Lockean or “first-user” theory); another is that it fails to consider carefully how such relations give rise to moral claims that are binding on other parties; a third is that it fails to give a clear account of which “sticks” in the “bundle of rights” arise in what manner, against whom, and under what conditions.
We shall find it more fruitful to begin by treating all rights as at least prima facie moral claims, held by specific persons against specific persons (or against all other persons as such), and then try to see how, and under what conditions, people acquire “propertylike” rights.
One problem that shall concern us is one with which none of the standard property accounts deals adequately: the problem of what I shall call moral availability. In order for one person to acquire a right against other persons, the right must be in some sense “morally available” in the first place. But the possibility that a purported “right” is one not morally available for acquisition is a possibility on which the standard theories are pretty uniformly silent. (Indeed, a repeated problem in the history of both philosophy and law is the difficulty of avoiding a pure “labor theory” with respect to both rights and values, according to which the sheer investment of effort is sufficient to generate a morally legitimate and/or legally protectible interest. This problem surely arises in large part because of the relative silence of such theories about what other conditions must first be met in order for a right to be “available’ for acquisition by effort.)
Where do property rights come from?
Where do property rights come from? There are at least three major theories on this question, and a couple of minor ones that deserve mention. (In each of the following summaries I refer to “the” theory of each type, but of course there are numerous variants that fall under each heading — approximately as many as there are theorists. For the most part my interest here is not in specific theorists, so I shall treat the theories only broadly and in general.)
The Lockean or “first-user” theory. According to theories of this type, one acquires some sort of ownership right in anything with which one “mixes one’s labor” (assuming the item in question was previously unowned). Called “Lockean” because it was propounded in John Locke’s “Second Treatise on Government,” this type of theory has been enormously influential among libertarians.
The Hegelian or “personality” theory. According to theories of this type, what makes something “mine” is that I appropriate it to myself and thereby make it an extension of my personality, a significant feature of the way I appear and act in the world. Called “Hegelian” because it was propounded in Georg Wilhelm Friedrich Hegel’s The Philosophy of Right, this type of theory has enjoyed little influence among libertarians and not much more elsewhere. But it has recently been given a new lease on life by Margaret Jane Radin, who uses it as a foundation from which to criticize “market rhetoric” and the “commodification” of our social discourse.
The Benthamite or “utilitarian” theory. According to theories of this type, what accounts for the existence of property rights in general is that they subserve a common end of the usual utilitarian sort. This end may be variously characterized as the maximization of subjective utility, economic efficiency, or (actual or potential) Pareto optimality; the common feature is the claim that property rights are supposed to maximize something, together with a broadly utilitarian understanding of what they are supposed to maximize. Called “Benthamite” because a utilitarian account of rights in general was propounded in Jeremy Bentham’s Principles of Morals and Legislation, this type of theory has been influential among libertarians (and others) who subscribe to “Chicago-school” economics.
The territorial-imperative theory. According to theories of this type, human beings exercise “property rights” because we are territorial primates. I have named the theory for Robert Ardrey’s The Territorial Imperative, but at a broad level of generality, something like it (though usually without Ardrey’s emphasis on “aggression”) underlies most “evolutionary” accounts of property rights and social norms. (Something along these lines may be involved in Matt Ridley’s The Origins of Virtue, which builds on Richard Dawkins’s work.)
The rational-expectations theory. According to theories of this type, persons have a prima facie moral obligation to respect and protect the rational expectations of persons other than themselves (especially, but not exclusively, when the persons against whom the rights are held have helped to create those expectations). Property rights, on such a view, emerge from persons’ rational expectation that they will be unmolested in their use of whatever is supposed to be the object of the rights.
These five theories are not, at least in any obvious way, mutually exclusive. It could be, for example, that I acquire a property right in something by “mixing my labor” with it, precisely because I thereby make it an extension of my “personality” as a territorial primate and therefore have a “rational expectation” that other territorial primates will respect my right, and that the social practice of respecting such rights leads overall to an economically “efficient” allocation of subjective satisfaction among territorial primates.
Now, using the taxonomic distinctions with which we opened this essay, let us examine the most important difficulties in each of these accounts. I am interested here, not in the theories of any particular philosopher, but rather in how (or whether) the sorts of consideration involved in these theories can plausibly give rise to “propertylike” moral claims (and specifically claims with respect to the standard types of “intellectual property,” though we shall not reach that question until later). We shall not, therefore, criticize or even elaborate the account of any specific philosopher here.
The first-user theory
The “first-user” account, at least in Locke’s original formulation, treats the stock of natural objects as the common endowment of humankind and includes a requirement that the first user leave “as good” for others (a requirement, by the way, that libertarian property theorists generally omit). In view of the latter requirement, this account seems to presume that a property right is defensible only if it does not detract from the future good of other possible acquirers.
But it does not quite tell us how the various sticks in the propertylike bundle of rights become available for acquisition in the first place. At most it tells us that it is good for me that I be able to “own” a bit of acquired property in some sense that does not seem to commit us to any specific theory of ownership. It does not tell us why what is “good for me” should give rise to any moral claim against you. Even supposing I have left “as good” for you and others in the common stock, why does this mean you should refrain from taking what is “mine”?
The theory also does not tell us whether the right in question is a right in rem or in personam. It is probably presumed to be a right in rem, but in that case there is a begged question in the account. How does mixing one’s labor with a previously unowned item give one a universal right, against everyone else in the world (including future generations)?
Nor does the theory do anything to “break out” the sticks in the bundle of rights. It is not just obvious, for example, how my right to use a piece of land for agriculture also gives me the right to exclude you from walking across it or even hunting on it (at least insofar as your doing so does not interfere with my farming). And the first-user theory certainly does not explain how I can acquire a right to transfer ownership of the land to another person; indeed it seems to presume that I cannot, since I can hardly “unmix” my labor from the soil and thereby make the land “not mine” again.
It is not very effective in telling us what rights to use we actually acquire, either. With rare exceptions, libertarian accounts of property acquisition tend to presume that, once we mix our labor with something, the rights that then wink into existence look — surprise! — pretty much like the bundles of property rights that have become standard in American and/or Western European societies.
But it is not obvious how, merely by mixing my labor with a plot of land, I also acquire the right to use the land for other purposes — living on it, building a house on it, hunting on it, making use of any water that happens to run through it, and so forth. Nor does it give any reason why the first user should receive any sort of ownership in perpetuity — independently, that is, of continued or ongoing use of the land.
Nor does such a theory tell us how to fix the boundaries of the land acquired. Suppose I mix my labor with a bit of soil. How large a lot did I acquire? As far as the eye can see? Out to the nearest “natural” boundary — the river on one side, say, and the bottom of the hill on the other? The largest plot I can feasibly use for the activity in which I was engaged when I “mixed my labor” with the soil? How far up? How far down?
And if I am required to leave “as good” for others, to which “others” does this requirement apply? Those in my own community or society? The whole world? Future generations? Indeed, is “others” intended collectively or severally? If “others” means everyone overall or in total, then I do not need to leave very much behind; to put it roughly, I can “take” up to half of whatever is available for acquisition. But if I need to leave “as good” for each person, then I can take very little — arguably nothing at all.
These problems are more serious than it might appear from this trivial example. Suppose I “acquire” some land by “mixing my labor” with it, and then discover that “my” land provides access to a huge oil deposit. Even if the entire deposit is located directly under “my” land, is it at all clear that I have acquired the right to use all of this oil? How did my property rights come to extend that far under the soil? For that matter, how did I acquire any “rights” to the oil with which I have not yet mixed my labor? If the ascription of property rights is a reward for discovering the deposit, then why is ownership an appropriate reward? Why not, as Judith Jarvis Thomson pointedly asks, a medal and a handshake from the President?
Worse: so far we have applied the theory only in its original context, namely the acquisition of land ownership. It fails even more completely when applied to objects other than land. We shall mention two respects in which it thus fails.
(1) Land is, by nature, what economists call “scarce” — meaning that there is a finite amount of it and no part of it can be used by different people at the same time in the same way. But the first-user theory is sometimes invoked to support ownership of objects of which this is not true — ideas, for example, or computer software. A strictly Lockean theory should probably reach the opposite result, namely that “infinitely copiable” objects are not subject to “ownership”. (Indeed this is one argument Lockean libertarians sometimes use to deny the legitimacy of intellectual property rights. We shall examine it in due course.)
(2) What about putative “property” that may have moral claims of its own? Unless we presume from the very beginning that, for example, nonhuman animals are subject to ownership, it is not clear that property rights to them are “morally available” in the first place. The Lockean theory does tell us that we cannot acquire rights to property that is already owned by other persons. But a first-user theory cannot in and of itself tell us who will count as a “person” in the required sense, and as a matter of history such theories have tended to presume that only human beings (or subclasses thereof) are such “persons”. (Nor, alternatively, is it obvious why ownership of other humans is ruled out.)
In general, the first-user account does not take us very far. Nevertheless we should acknowledge the grain of truth in the account. It does seem that the first person to “mix one’s labor” with something previously unowned and morally available for acquisition should thereby acquire a moral claim against all comers to some rights of use, exclusion, and transfer. The problem is that, even if this moral intuition is entirely correct, it does not in and of itself tell us exactly what specific rights belong in the bundle under what conditions.
The personality theory
The Hegelian “personality” theory does not fare much better in this respect, but in an important sense it is not supposed to. For the most part we may simply repeat all the criticisms we levelled against the Lockean theory and we shall find that the Hegelian theory fails in the same respects. But there is a bit more to be said in defense of the present theory.
For one thing, at a philosophical level at least, it gives us a slight advance on the Lockean theory in telling us why a “first user” might acquire some rights against the rest of the world. It is because the first user is a personality acting in the world and, as such, appropriates comparatively external objects to itself as part of its activity. This does not take us far in detail, but it does help to spell out our moral intuition a bit.
Moreover, as this view has its origins in Hegelianism, it also carries with it an approach to metaphysics and epistemology that grounds this moral intuition. Broadly, a Hegelian or neo-Hegelian ethic holds that our rights against one another are grounded teleologically, in a common moral end that coherently includes but is not exhausted in the particular ends of particular persons. This, too, does not take us far in detail, but it does at least tell us how one person’s “good” or well-being gets a moral purchase on other moral agents.
Then, too, the personality theory provides a firmer foundation for property rights in non-scarce goods. If, for example, it is essential to my “personality” that I represent myself in the world by a certain name or public image, then it is at least intelligible that I might have some sort of “right to exclude” others from either using or tarnishing that name and/or image.
Otherwise, all our previous objections continue to apply. The only advantage of the Hegelian account over the Lockean here is that it can tell us why a theory of rights “lives” at such a high level of generality as to be effectively useless in deducing particular rights and duties.
Essentially the answer is this. Our rights against one another are grounded in an ideal common end, but our only “access” to this end is constructive: we literally and actually develop the end itself in the very process of intuiting our moral rights and duties and reflecting on them so as to modify them into coherence with one another. In other words, this theory is (or should be) associated with metaphysical idealism and epistemological intuitionism-constructivism. The sheer fact (if it is one) that a common end exists does not tell us much of anything about its content; for that, we have to start with our current moral insights and do the hard mental spadework of reflection and modification, taking full account of conditions and circumstances, and probably never in fact arriving at a single, wholly unconditional and never-overrulable ethical principle. (We cannot pause here to mount a full case for this claim; for a partial case, see chapter 12 of my book Objectivism and the Corruption of Rationality: A Critique of Ayn Rand’s Epistemology and my essay “Objective Idealism and Ethics”.)
This view lends some perhaps unexpected support to Randy Barnett’s claim (in e.g. The Structure of Liberty) that broad, general principles of rights do not tell us in detail what our rights are. Our exposition of it is also, I hope, a salutary rebuke to libertarians who reject Hegelian-inflected thought out of hand because of its association with statism and Prussianism. (The essential mistake of the Hegelian statist is the presumption — a presumption that the theory itself, properly understood, actually rules out — that there is some existing person or institution who speaks for the ideal common end that grounds our rights.)
Nevertheless, as far as property rights are concerned, all the theory can really tell us is that in order to determine what such rights we have, we must look to circumstance and context with one eye while keeping the other eye on the ideal end in the process of realization through our social instituions. Advice at this level of abstraction may be salubrious to the ethical theorist, but it does not (and is not supposed to) offer much positive help when the rubber hits the road.
Margaret Jane Radin has invoked it fairly effectively, however, in criticizing the Posnerian “law and economics” approach to property rights. Specifically, she has argued that a “personality” theory of rights would hold that we should resist “commodification” — by which she means, roughly, the view that some of our rights are alienable, not that that are “propertylike” rights at all.
As Radin’s main concern is with the role of “market rhetoric” in the impoverishment of our moral discourse, we shall not offer a systematic exposition of her views here. But we must acknowledge in passing that her personality-based account of rights at least raises an important question: what rights of transfer do we actually have? (To what extent, for example, are our rights with respect to our bodies really “propertylike” in respect of transferability or alienability? If a surrogate mother rents out her womb under contract, does she thereby alienate her parental rights with respect to the child involved, or are those rights that she cannot alienate?)
The utilitarian theory
We shall not be very specific here as to the sort of utilitarianism involved. The crucial thing is that we understand the term broadly enough to subsume the current schools of “law and economics”, especially including the “Chicago school” and Judge Richard Posner. Our discussion here will be limited to that school.
This is not the place for a full criticism of the field of “law and economics”. In any case we can agree with much of it, at least in its less aggressively reductionist forms. Our concern here is specifically with its account of property rights.
Even here there is much in the spirit of the movement with which we can concur. On the positive side, it has two (closely related) features that fit well with what we have already said here: (1) it recognizes that, far from detailed “property rights” being just metaphysically obvious, there is something fluid and institution-dependent about such rights; and (2) it recognizes that such rights are grounded in, and are justified by their subserving of, a common end.
Nevertheless we must raise two crucial objections to the general approach of L&E.
(1) Its conception of our ideal end is both too limited and too specific. If what we have already said is correct, then our rights do require a teleological grounding in order for your well-being to have any moral purchase on me. But it is simply not true that we can characterize this common end in terms of some simple, single criterion like “utility” or “economic efficiency”. The end itself is what would, in older parlance, have been called a “concrete universal,” or a complex overarching system that expresses itself in, but resists complete characterization as, each of its parts. To put the matter more practically: it just is not true, on this view, that we can start with a principle like “Pareto optimality” or “Kaldor-Hicks efficiency” and deduce specific moral or legal rules. We have to come at the overarching end by beginning with our ordinary moral intuitions and “constructing” the end as we go.
(2) Its tendency, like that of utilitarianism generally, is to reduce “rightness” to “goodness,” where the “good” being pursued exists to a high degree independently of the means elected to achieve it. What is “right” is, on this view, whatever brings about the sort of result that we can independently classify as “good”. I do not think this reduction can be carried out; indeed I think that the very idea of such a reduction presumes a dichotomy between an act and its consequences, or between a means and an end, that simply does not appear in our own moral universe.
On both these points, though, the reader will find somewhat more detailed arguments in the aforementioned twelfth chapter of my book as well as in my essay “Objective Idealism and Ethics”. For present purposes it will suffice to note a broad general sympathy for L&E but to warn of some specific hazards associated with it (which might perhaps be overcome by a sufficiently self-critical utilitarianism).
The usual accounts of economic efficiency tend to ignore crucial distinctions between persons, specifically the persons who are the holders of the rights at issue. On the ordinary L&E account, the “goal” of property rights is to maximize well-being in some aggregate sense that simply does not do justice to the usual moral nuances.
According to the criterion of “Kaldor-Hicks efficiency,” a state of affairs is “efficient” so long as there is no “potential Pareto improvement” available. (A “Pareto improvement” is one that will make at least one person better off without making anyone else worse off; a state of affairs is “Pareto optimal” if no such improvements are possible.) On this criterion, we should make a change precisely in case the following obtains: the people who will be made better off by the change will be sufficiently “better off” that they could compensate those who were harmed by the change and still be better off than they were — even if they do not in fact compensate those made worse off.
In other words, a change is for the better, and ratified by the criterion of Kaldor-Hicks efficiency, as long as it makes some people “better off” by more than it makes others “worse off”. On this view, it would be all right for all the people in the Eastern half of the United States to take all the property of all the people in the Western half of the United States if, and only if, they thereby made themselves enough better off that they could, if they wished, compensate the victims for their losses; it is irrelevant whether they actually do so.
We need not concern ourselves here with whether the law or the economy in fact behaves in this way. We need only note that this is entirely at odds with our moral intuitions of justice. It will therefore not be of much help to us in seeking specifically ethical grounding for property rights.
The territorial-imperative theory
We shall deal with this account only briefly. To some extent (namely, to the extent that it treats evolution by natural selection as a means to economic efficiency or utility maximization), it collapses into the utilitarian account. To the extent that it does not, it runs head-on into the usual problem of deriving an “ought” from an “is”, namely that the sheer fact that human nature is such as to engage in territorial behavior does not, in and of itself, support an inference that our social structures should institutionalize territoriality. Even if it is true that we are territorial primates, then, this account does not by itself give us any specifically moral basis for property rights.
Another limitation of such a theory is that it would limit property rights only to (or among) territorial species. But it is at least arguable that nonterritorial species would be entitled to moral consideration with respect to their use of what a territorial species would regard as “property”. If so, then the nonterritorial species would still have moral claims of the sort we have recognized as “property rights”.
The rational-expectations theory
With this account we shall also deal only briefly. The main difficulty with it is that it has so little content of its own. It seems to be true that there is some sort of moral imperative to protect people’s rational expectations. But just when are our expectations “rational”? If there exists a regime of property rights that we would ordinarily recognize as unjust, but we know that it will be enforced by the courts, are we then morally obliged to make our behavior comport with the “unjust” regime merely because we can reasonably expect property rights to be distributed accordingly? On the other hand, if we enrich our conception of “rationality” sufficiently to take account of our usual moral insights, we fall back into the Hegelian account already discussed.
The underlying idea here, however hard it may be to bring to light, is extremely attractive and has some worthwhile explanatory power as well. It gives, for example, at least the beginning of an explanation for my own stock counterexample to the libertarian principle of nonaggression (again, discussed in chapter twelve of my book). If I come upon you in the State of Nature about to ingest a berry from the Previously Unowned Poisonberry Bush, I will probably knock the berry from your hand if that is the only way to prevent you from eating it. My assumption will be, of course, that you do not know the berry to be poisonous and would not eat it if you did. But even if I am wrong, it still seems to be the case that I am not violating your libertarian “property rights” in any meaningful sense merely by “aggressing” against them in this way. The reason is surely that we each have relevant “rational expectations” about each other’s behavior and that, in one way or another, our theory of property rights must take account of these expectations.
It is, in short, extremely plausible that some sort of rational-expectations theory will at least be included in any acceptable account of rights. But we cannot make rational expectations the basis of such an account unless we are willing to “fill out” our conception of reason and reasonableness.
Our brief and highly inadequate overview of the various schools of thought on property rights has not provided us any solid foundation on which to place specific rights. If the more-or-less Hegelian account is correct (as I think it is), then that is exactly what we should expect. However, that does not leave us in a very strong position as regards “deductive” approaches to specific rights, including the intellectual property rights in which we are ultimately interested here.
Nevertheless our overview has not been wholly negative. We have at least suggested strongly, if not actually shown, that our rights against one another are grounded in a common ideal end; that we approach this end and indeed bring it into realization by rationally reflecting upon and thereby modifying our ordinary moral intuitions; that because there is no “direct” access to this overarching end, we have no choice but to “come at it” constructively; and that all of our principles of rights and duties are therefore conditional and circumstance-dependent to varying degrees. The proper method to follow in developing an account of rights, to the extent that it can be called a “method” at all, is simply to identify the relevant interests of the relevant parties, try to understand who is obliged to respect them and why, and try to balance the apparently competing interests and even — ideally — reconceive them so that they fit into a coherent whole. To paraphrase Josiah Royce, what it is “right” to do in any given situation is what would ideally be done by one person who shared all the competing interests at stake in the decision.
The lesson to take away from our critical survey is this. We should be extremely wary of any theory of intellectual property rights — libertarian or otherwise — that either accepts or rejects such rights based on how well they comport with any theory of property rights developed without intellectual property specifically in mind.
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