ABSTRACT
Legal realism and associated developments are thought to have undercut the philosophical framework of classical liberalism in significant part by dissolving the foundational concept of property. In a post-Realist world, property must be considered a form of regulation, and there is therefore no neutral baseline of liberty against which to measure restrictions of supposedly private right. This perspective is urged with particular force in the analysis of intellectual property, which is said to be justified only on what are explicitly consequentialist grounds, as a form of subsidy meant to encourage the production of ideas and information. But the axiom that IP rights can have no role as a means to resolve conflicts over the use of resources or to promote the efficient use of information goods is false, as the legal system implicitly recognizes in various ways. Even so, however, intellectual property rights are circumscribed in a manner that is not readily justifiable on simple utilitarian grounds. This chapter considers the implications of thinking of IP rights as a form of regulation. It concludes that the failure to realize the full regulatory potential of IP rights suggests that traditional notions of property may have more of a hold – and may supply a more effective means to safeguard individual freedom – than the post-Realist perspective generally admits.
Stern, James, Property, Intellectual Property, and Regulation (August 24, 2018) in The Cambridge Handbook of Classical Liberal Thought (M Todd Henderson ed, Cambridge University Press 2018).
First posted 2022-01-29 12:00:31
Leave a Reply