In Justifying Intellectual Property, Robert Merges sets himself an impossible task. First, he’s going to look to the philosophy of Locke, Kant, and Rawls for several foundational principles of property law; then he’s going to supplement those with some mid-level principles; and then he’s going to use those concepts to defend (or refine) current intellectual property law. This is not a book that can be criticized for lack of ambition!
While I have a soft spot for arguments that are rooted in “great books” such as Locke’s Second Treatise, I found myself wondering whether Merges was being faithful to the authors he looks to for his foundational principles. My concern, in other words, is that Merges is simply cherry-picking ideas that are consistent with his theory of intellectual property rather than identifying universal or near-universal principles in their work. Part of what gives me pause is something that Merges, to his credit, acknowledges: particularly in the case of Locke and Kant, Merges is concerned with a very small portion of each author’s intellectual contribution. While it is true that both of these authors gave some thought to property, articulating a comprehensive theory on that topic does not seem to have been their primary purpose.
Take Locke, for example. It is widely accepted that his Second Treatise is a response to Robert Filmer’s Patriarcha—a theory of government premised on the divine right of kings—and by extension, the absolutist view of government espoused by Thomas Hobbes in Leviathan. It is in this context that Locke discussed property—context that is important because it presents a plausible explanation for Locke’s theory of property rights. The notion that property rights are the product of mixing one’s labor with the external world serves Locke’s political philosophy because it allows him to recognize “rights” that exist prior to the formation of government. In other words, property interests do not arise through the consent of others—be they fellow subjects or the government itself.
The fact that Locke did not articulate a comprehensive theory of property may not matter to Merges, as long as he is simply using Locke for the idea that property is a means of appropriating (and assigning responsibility over) things that would otherwise remain scattered and useless. But Merges seems to be after more than that—witness his focus on Locke’s sufficiency and charity proviso—and when it comes to the details, Merges seems to rely heavily on his own interpretation of various passages. The end result is that the ideas Merges claims to find in Locke seem to be as much a reflection of Merges’s IP theory as Locke’s original thought.
This may not matter too much if we agree with the principles Merges describesl; however, we should remember that the "foundational principles" Merges identifies in Locke were themselves subservient to Locke's political philosophy. Query whether a foundational principle should be a subservient one.
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