Private Law Theory

Abstract:
I wish to claim that how we, as a society, deal with property resources is part of a moral context that reflects our values as a society or community. Indeed, I would go further to add that such a moral context imports what have been called the “social obligations” of property. Property rights are not unlimited. In examining how and why private property institutions ranging from ownership of land to ownership of a copyright are limited and indeed channelled or directed, and in analysing what justifications are offered for this in practice and theory, we inevitably expose larger ethical and moral principles: the common good, the development of individual goods, etc.

Social obligations are most obvious in the various areas of intellectual property, even though we have grown accustomed to using individual, right-based vocabularies to frame IP discourse. As I shall argue, the areas of IP, especially copyright and patent, are all in some way subservient to a very ethical teleology. This teleology is present in the very foundational documents of intellectual property. The same kind of teleology is equally pervasive for private property, as a number of scholars are beginning to point out. This point however requires more excavation to unearth, and the bulk of this essay is focussed on that task. This is the “ethical thread” that I wish to expose. Once here, we have reached a point where we can begin to re-think private law in these terms: beginning with elements fundamental to the law of property, then moving to nuisance (on the cusp of property and civil responsibility), and expanding that scope into contract and tort, we can begin to see more fully what Fuller might have called the “aspirational morality” of private law.

Lametti, David, Laying Bare an Ethical Thread: From IP to Property to Private Law? (June 14, 2012). Intellectual Property and the Common Law, Shyam Balganesh ed., Cambridge University Press 2012 .

First posted 2012-06-29 06:55:52