Are Patents and Copyrights Morally Justified? - Tom G. Palmer

832 HarvardJournal of Law & Public Policy [Vol. 13
one’s body, the violation of which constitutes an infringement
of liberty. (2)
[God] gave [the earth] to the Industrious and Rational, (and
Labour was to be his Title to it;) not to the Fancy or Covetousness
of the Quarrelsom and Contentious. He that had
as good left for his Improvement, as was already taken up,
needed not complain, ought not to meddle with what was
already improved by another’s Labour: If he did, ‘tis plain he
desired the benefit of another’s Pains, which he had no right
to.... 54
(3)” ‘tis Labour indeed that puts the difference of value on
everything. . . . [T]he improvement of labour makes the far
greater part of the value.” Indeed, “in most of them 99/100 are
wholly to be put on the account of labor.” 55
These three arguments all lend support, each in a different
way, to private property rights in land—Locke’s primary interest
in the chapter on property. They diverge when it comes to
ideal objects, however. Although the second and third arguments
lend support to intellectual property rights claims, the
first emphatically does not. For Locke, self-ownership serves
several important functions. First, it is the foundation of liberty;
indeed, it is synonymous with liberty. Second, it allows
Locke to respond effectively to Filmer’s criticism of the consent
theories of property set forth by Grotius and Pufendorf. If appropriation
of common property rests on unanimous consent,
Filmer knows of at least one person who would refuse his consent,
thus knocking the struts out from under the entire edifice.
Locke seeks to show “how Men might come to have a property
in several parts of that which God gave to Mankind in common,
and that without any express Compact of all the Commoners,”
56 that is, in a way that will avoid Filmer’s otherwise fatal
objection. By beginning with one tangible thing that is so
clearly one’s own that no one else can claim it—one’s own
body—Locke can show how property rights can legitimately
emerge without requiring universal consent, thus sidestepping
Filmer’s objection. 57
54. Id. at 333.
55. Id. at 338.
56. Id. at 327.
57. Though the Earth and all inferior Creatures be common to all Men, yet
every Man has a Property in his own Person. This no Body has any Right to
but himself. TheLabourof his Body, and the Work of his Hands, we may say,
are properly his.