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

No. 3] Are Patents and Copyrights Morally Justified? 819
leads directly to speculation about how such objects are similar
to or different from other objects of property rights, such as
trees, land, or water flows. One cannot address how (or
whether) such things ought to be made the objects of ownership
without addressing their fundamental nature. To some
criticizing the notion that ideas could be made into exclusive
property, the political economist Michel Chevalier properly
rejoined:
After having fired off’ at patents this shot, so difficult to
escape, the Exposé des molift concludes by saying that all this is
metaphysics on which it will not enter. An unhappy way of
refuting itself; it is to fly from a discussion which the reporters
had opened oftheir own accord. Should the legislator be
ashamed ofmetaphysics? On the contrary, he ought to be a
metaphysician, for what would laws be in the absence of
what they call metaphysics; that is to say, recourse to first
principles. If the legislator does not consent to be a metaphysician
in this sense, he is likely to do his work badly. 4
Thus, discussions in this Article about the legal foundations of
intellectual property cannot proceed without our taking up the
ontological foundations of intellectual property, which we will
do in part III.
Many defenses of intellectual property rights are grounded
in the natural law right to the fruit of one’s labor. 5 Just as one
has ~aright to the crops one plants, so one has a right to the
ideas one generates and the art one produces.
Another tradition of property rights argument bases itself on
the necessity of property for the development of personality.
Personality develops itself in its interaction with the world;
without a sphere of property over which we exercise control,
for example, moral responsibility is unlikely to develop. Property
rights, in this tradition, may incorporate an “economic”
aspect, but it is fundamentally distinguished from other con-
4. Chevalier, PatentsforInventions Examined in Iheir Relations to the Principle of Freedom of
Industrj, and That ofEquality Among Citizens, in COPYRIGHT AND PATENTS FOR INVENTIONS
5 (R.A. Macfie ed. 1883).
5. Natural rights arguments and utilitarian arguments (very broadly conceived) are
close cousins. Utilitarian theories are explicitly consequentialist (and welfarist), while
natural rights theories usually contain what Alan Ryan calls “a buried utilitarian assumption.”
A. RYAN, PROPERTY 63 (1987). Such “buriedassumptions” concern human
flourishing or the attainment of man’s natural end. These consequences are usually
attained indirectly, through respect for general rights, or rules of conduct, ratherthan
directly, as in most utilitarian theories. The sharp separation in contemporary moral
philosophy between natural rights and utility, or the common good, is, however, an
artificial one, andwould certainly be f~reignto many of the greatnatural lawtheorists.