Unnatural Rights: Hegel and Intellectual Property

Abstract

Many proponents of intellectual property law seek refuge in a personality theory of property associated with G.W.F. Hegel. This theory seems to protect intellectual property from potential attacks by a utilitarian analysis that would recognizes property only contingently insofar as it furthers society's goals of utility or wealth maximization. Personality theory, in contrast, supposedly offers a principled argument that intellectual property right must be recognized by a just state, regardless of efficiency considerations. Personality theory also seems to protect intellectual property from assault by critics who maintain that it is not a form of "true" property at all. Finally, personality theory has also been used to support an argument for heightened protection of intellectual property beyond that given to other forms of property - the Continental "moral" right of artists in their creations is an example.

Unfortunately, references to Hegel by personality theorists are almost always incorrect. Prof. Schroeder seeks to save Hegel from the misperceptions of his well-meaning proponents.

It is true that Hegel thinks that a modern constitutional state should establish a minimal private property regime because property plays a role in the constitution of personality. It is not true, however, that Hegel thought that society is required to respect any specific type of property or any specific claim of ownership. It is also true that Hegel thought that intellectual property could be analyzed as a form of "true" property and not as a sui generis right that is merely analogous to property. However, it is not true that Hegel ascribes any special role to intellectual property. As such, Hegel's theory can not be used to support the proposition that the state must recognize intellectual property claims, only that it may do so. Moreover, the Continental moral right of artists is inconsistent with an Hegelian analysis of property.

In contrast to a widespread misconception, Hegel completely rejects any concept of natural law generally, and any natural right of property, specifically. Indeed, Hegel considers the expression "natural rights" to be an oxymoron. To Hegel, nature is unfree and legal rights are artificial constructs created as a means of actualizing freedom by escaping the causal chains of nature. Consequently, rights are not merely not natural, they are unnatural.

Having no recourse to nature, Hegel justifies the concept of property on purely functional grounds - the role it plays in the modern state. Specifically, property is necessary for the development of one limited aspect of personality that I call "legal subjectivity." Legal subjectivity is the mere capacity to respect the rule of law - nothing more. This is a precondition to the liberal state which is supposed to be governed by the rule of law, not the rule of men, as the feudal state was. Hegel's property analysis does not directly relate to any other aspect of personality - and certainly not to what Margaret Jane Radin calls "human flourishing."

Hegel calls this regime of property and contract "abstract" right precisely because, it is a necessary but insufficient part of modern society. The subjectivity created by abstract right only provides the form of personality. Content is only added to personality through more complex interrelationships among people at the higher levels of morality and ethical life.

It follows from the fact that the subjectivity created by abstract right is purely formal, that it is only the form of property, and not its content that is relevant to Hegel's analysis. This means that if copyright can serve property's function in the production of legal subjectivity, it is not because of any affirmative, concrete content that the creator pours into the object she creates. Hegel argues that copyright can serve as property because of its formal characteristics, despite its unique content.

A Hegelian property analysis has two important implications for intellectual property law. First, if society decides to adopt an intellectual property law regime, then it is logically coherent to analyze the regime as a form of "true" property. Indeed, Prof. Schroeder shows that a Hegelian understanding of property solves many of the "problems" of intellectual property doctrine that seem baffling from a traditional property analysis. Consequently, a Hegelian property analysis can aid legislators and judges in formulating a more internally consistent and predictable positive law.

But, unfortunately for most personality theory proponents, Hegel's logic has absolutely nothing to say on the issue as to whether society should adopt a positive law of intellectual property. The question as to what positive laws society should adopt is purely a matter of practical reasoning.