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

~3bb I-IarvardJournal of Law C~PublIc Polwy [Vol. l~
The arguments of Locke and von Humboldt on the importance
of ownership rights in ourselves and in tangible objects
have already been discussed, so there is no need to review them
further. What I do propose, however, is 1) that such rights have
their foundation in nature and can without confusion be called
natural rights, even though they emerge through a historical
process and necessarily contain an element of the conventional
and contingent (nature revealing itself through history); and 2)
that self-ownership rights are consistent with justice-as-order
(as discussed in the section on the structure ofutilitarian arguments
above).
The role played by scarcity in self-ownership theories is central,
for the most obviously scarce of all physical resources is
one’s own body. Ifjustice has any meaning at all, it refers at
least to the allocation ofvarious rights to control physical resources.
Such a system ofjustice can emerge from a flow of
historical events by an “invisible hand” process, without diminishing
its “naturalness.” As Hume remarks, “Tho’ the rules of
justice be artificial, they are not arbitrary. Nor is the expression
improper to call them Laws of Nature; if by natural we understand
what is common to any species, or even if we confine it to
mean what is inseparable from the species.” 144 To say that a
law is natural is not, however, to affirm that it is self-evident, or
even that a sufficiently powerful deductive mind could arrive at
it. As Hume remarks, “Nor is the rule concerning the stability
of possessions the less deriv’d from human conventions, that it
arises gradually, and acquires force by a slow progression, and
by our repeated experience of the inconveniences of transgressing
it.” 45 Practice, in social experience as well as personal,
plays a significant factor in the formation of ethics.
(“Ethics” is, after all, but a transliteration of the Greek word
perhaps best translated as “habit,” that is, what is formed
through practice.)
The fundamental question of who should have the right to
control one’s body and, by implication, the products of one’s
labor, is, in many respects, a problem ofcoordination. It is a
problem of arriving at a stable equilibrium solution in a
“game” that has no unique stable solution. Our bodies could be
considered the property ofthe king; some class of people could
144. D. HUME. supra note 131, at 484.
145. Id. at 490.