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

838 HarvardJournal of Law & Public Policy [Vol. iS
and so as a single will, becomes objective to me in property,
property acquires the character ofprivate property. ~ Personality
does not simply require external objects for its development.
Its development is its objectification through
externalization of its will.
Occupancy, not labor, is the act by which external things become
property: “The principle that a thing belongs to the person
who happens to be the first in time to take it into his
possession is immediately self-explanatory and superfluous, because
a second person cannot take into his possession what is
already the property of another.” 84 This occupancy, or taking
possession, can take three forms: (1) by directly grasping it
physically, (2) by forming it, and (3) by merely marking it as
ours. 85 It is the second of these forms ofpossession that is most
interesting for our purposes. As Hegel remarks, “When I impose
a form on something, the thing’s determinate character as
mine acquires an independent externality and ceases to be restricted
to my presence here and now and to the direct presence
of my awareness and will.” 86
Unlike Locke, Hegel does not see man as naturally free, and
therefore as having natural, or pre-historic ownership rights in
himself. It is only through the historical process ofobjectification
and hence self-confrontation that one comes to be free: “It
is only through the development of his own body and mind,
essentially through his self-consciousness’s apprehension ofitself
as free, that he takes possession ofhimselfand becomes his
own property and no one else’s.” 87
85. Sd.
84. Sd. at 45. Further, “[s]ince property is the embodiment of personality, my inward
idea and will that something is to be mine is not enough to make it my property; to
secure this end occupancy is requisite.” Id. (emphasis in original).
85. Id. at 46.
86. Id. at 47. This is the “mode of taking possession most in conformity with the
Idea to this extent, that it implies aunion of subject and object.. . .“ Sd.
87. Id. This process, as Hegel remarks in his notes, is the same as the diaLectic of
lord and bondsman described in the Phenomenokgy of Sp&nt. Remarkably, self-ownership
emerges only at theend ofahistorical process ofself-confrontation throughpossession
ofand transformation ofthe external world. The anti-liberal characterof Hegel’s approachis
made most clear in his identificationof the“Idea” of freedom(its concretion
and synthesis with thecontent of its concept) with the state:
But that objective mind, the content of theright, should no longerbe apprehended
in its subjective concept alone, and consequently that man’s absolute
unfitness for slavery should no longer be apprehended as a mere ‘ought to
be’, is something which does not come home to ourminds until we recognize
that the Idea offreedom is genuinely actual only as the state.
Id. at 48.