legal theory: philosophy

Justin Hughes: The Philosophy of Intellectual Property

77 Georgetown L.J. 287, 331-39 (1988)


1. The General Hegelian Philosophy

At the heart of Hegel's philosophy are his difficult concepts of human will, personality, and freedom. For Hegel, the individual's will is the core of the individual's existence, constantly seeking actuality (Wirklichkeit) and effectiveness in the world. Hegel perceives a hierarchy of elements in an individual's mental make-up in which the will occupies the highest position. As one of Hegel's biographers wrote, the Hegelian will is that in which thought and impulse, mind and heart, "are combined in freedom." n171

We can identify "personality" with the will's struggle to actualize itself. Hence Hegel writes that "[a] person must translate his freedom into an external sphere in order to exist as an Idea" n172 and that "[p]ersonality is the first, still wholly abstract, determination of the absolute and infinite will." n173 For Hegel, "[p]ersonality is that which struggles to lift itself above this restriction [of being only subjective] and to give itself reality, or in other words to claim that external world as its own." n174

To the classical liberal, true freedom is a freedom from external restraint. For Hegel, freedom is increasingly realized as the individual unites with and is expressed through a higher objective order: a unity which, to the classic liberal, is tantamount to drowning the individual in the larger "geist" of social groups. In the words of R. N. Berki, Hegel's notion of "philosophical freedom grows with comprehensiveness and with ever higher degrees of realized self-determination, thus, an animal is freer than a physical object, a man freer than an animal, the family freer than the individual, the State freer than the family, World-History freer than the State." n175 Berki's summary is instructive [*332] on the difference between liberal and Hegelian notions of freedom: this difference is more about the proper receptacle of freedom than about the nature of freedom. Both recognize freedom as involving expression and realization. The liberal reposes this freedom in the individual while Hegel discards the individual when he believes it is time to pursue freedom to new and dizzying heights.

In his property theory, however, Hegel focused on the immediate freedom of an individual. n176 So at this level the liberal's critique of Hegel should be most muted. The liberal still differs from Hegel by defining freedom as the absence of restraints, but this negative definition means little without the positive freedom to act upon things. In Camus' Caligula, n177 the despotic Emperor declares himself to be the most free man in the world because no wish is denied him. Caligula has few external restraints; he can manifest his will on anything within the reach of Imperial legions or roman sesterce.

Caligula's claim to be a model of freedom for his people is faint comforts to them because they frequently are the things upon which he manifest his will. At least at the level of individual freedom, Hegel denounced such manifestations of will upon others. n178 Caligula's material self-indulgence points to a weakness in both Hegelian and classical liberal theories: the need to sort out the effects upon other people of an individual's exercise of freedom over inanimate objects. n179 In Hegel's system, property is a genre of freedom and, like any other freedom, it may have deleterious on other.

2. The Property/Person Connection

Drawing upon his model of the hierarchy of elements in the individual's make-up, Hegel implies that the will holds the "inferior" elements of the self as if they were a type of property. n180 It is worth noting that this view is not very distant from Locke's initial premise that "every Man has a Property is his own Person." n181 Assuming that the self is a type of property, the difference between internal property of this sort and property external to the person is that the latter can be alienated. This reasoning can lead to an abandoning of barriers in both directions. As Dudley Knowles put it: "[T]he [*333] contraction of the core of one's property into the sphere of personality (life, limb, and liberty) licenses the expansion of the concept of personality to cover those physical objects which are deemed to be property." n182

According to Hegel, the will interacts with the external world at different levels of activity. Mental processes -- such as recognizing, classifying, explaining, and remembering -- can be viewed as appropriations of the external world by the mind. n183 Cognition and resulting knowledge, however, are the world imposing itself upon the mind. The will is not bound by these impressions. It seeks to appropriate the external world in a different way -- by imposing itself upon the world. This is the true purpose of property and, perhaps to emphasize that purpose, Hegel explicitly disavows any need for the institution of property to satisfy physical wants. n184

Acting upon things is an initial step in the ongoing struggle for self-actualization. Socially mandated property rights do not trigger this self-actualization; they are only a means to protect the individual's initial attempt to take command of the world. Once we accept that self-actualization is manifested in enduring objects as well as in fleeting acts, property rights acquire an important purpose in preventing men from forever being embroiled in an internecine conflict of each individual trying to protect his first forays at self-actualization from the predation of others. Property becomes expression of the will, a part of personality, and it creates the conditions for further free action. n185

Respect for property allows the will to continue abstraction and "objectification." With some property secure, people can pursue freedom in non-property areas or they may continue to develop themselves by using property to move themselves toward the person they wish to become. Knowles has clearly depicted the Hegelian interaction between property and personal development: "Imaginative conceptions of our future selves are indistinguishable from fantasy or day-dreams unless they are supported by acquisition, investment, or planned savings. . . . Anyone who wishes to conduct an inventory of his desires may profitably begin by walking round his own dwelling or looking into his wardrobe." n186

Property is not just a matter of the physical world giving way to assertion of the self, for the society must acknowledge and approve property claims. Through society's acceptance of the individual's claims upon external objects, [*334] possession becomes property, and the expression of the individual becomes more objective. n187 for Hegel, increased objectivity is increased freedom in part because social recognition of a person's claims to private property demonstrates that the individual's claims comport with that social will.

To make a claim is not to give vent to an appetite; it is not to be demanding in a way that even an animal can be. It is to make a moral gesture that has meaning only between persons who recognize one another as persons. . . . The creature that aspires to freedom is a social being and can get what it aspires to only in society -- or, in the language of Hegel, it belongs to an ethical universe and can achieve freedom only inside it.

The individual person comes to be manifested in some object through "occupation" and "embodiment." n188 Although much of Hegel's language seems to support either a "first possession" theory or a labor theory, neither accurately captures what he means by occupation. He characterized possession of the object as the initial step in property, n189 but this is because the will can only occupy a re nullius -- either a virgin object or something that has been abandoned. n190

Abandonment occurs easily in the Hegelian system because the relationship between person and object is fluid. Being first in possession of an object is not sufficient to maintain title to it; the property relationship continues only so long as the will manifests itself in the object. Because "the will to possess something must express itself," n191 a person who fails to reaffirm constantly this expression can "lose possession of property through prescription." n192 The individual also can actively withdraw his will; this is the basis of alienability. n193

Labor often is the means by which the will occupies an object. n194 But while labor may be a sufficient condition for occupation, it is not a necessary one. For example, one may manifest one's will in a gift or in a natural object to which one becomes emotionally attached. n195 There is a rock on my shelf from the coast of Corsica that reminds me of days spent there. My will occupies that rock without wishing to change it and without having labored upon it. This exemplifies another non-condition of occupation; Hegel specifically [*335] argues that an individual need not use an object to occupy it. n196

This is not to say that there are no objective indicia of the will's occupation. Hegel sets out three ways in which the will may occupy an object: physically seizing it, imposing a form upon it, and marking it. n197 This would not appear to be an exhaustive list of events that signal possession, nor is Hegel precise in defining these three events. Thus he finds use, when aimed toward preservation of the object, equivalent to "marking it" because it shows the will's desire to make the object a permanent part of the inventory of things utilized and enjoyed by the individual. n198

Hegel seems to envision spatio-temporal proximity between the individual and the object, but that too is only indicia rather than a requirement. Unlike the labor theory, Hegel's personality justification focuses on where a commodity ends up, not where and how it starts out. . . . [I]t focuses on the person with whom it ends up -- on an internal quality in the holder or a subjective relationship between the holder and the thing, and not on the objective arrangements surrounding production of the thing. n199

As Radin points out in this passage, the connection between personality and property is open-ended. A person could claim a personality stake in any material object, meaning that the personality justification is liable to excessive claims. It is a theory that allows Virginia Woolf to claim a room of her own, but also allows Louis XIV to claim the 2,697 rooms of Versailles.

This subjectivity causes unhealthy identifications with property that should not give rise to legitimate property claims. Early in his writings, Hegel hinted that certain self-identifications with property were destructive to the individual. For example, in the Theologische Jugendschriften, n200 Hegel argues that the ownership of property can stand in the way of complete harmony between individuals in love. "The dead object in the power of one of the lovers is opposed to both of them, and a union in respect of it seems to be possible only if it comes under the dominion of both." n201

This destructive effect of property should be distinguished from the alienation that later came to propel Hegelian and Marxian social criticism. It differs from the problem of a laborer who attaches his existence to objects that he produces but does not own: the plight for such a laborer is that his identity is attached to something that is not his property. Nor is this the problem [*336] of a person owning things with which he does not identify. n202 In the Jugendschriften, the problem is that a person owns and identifies with some property to his own detriment; it prevents a greater happiness in the form of a love relationship.

Generalizing from this example, we might say that a person's identification with property is "unhealthy" when it prevents that person from maximizing self-actualization from other sources -- lovers, friends, careers, peer groups, other property, and even feelings antithetical to the possession of property such as the flower-child freedom of the 1960s. The complexity of maximizing self-actualization usually makes us defer to the judgments of the individual. However, when the industrialist is inextricably in love with the flower child, we may conclude that his property is unhealthy for his present and future self-actualization.

Radin also has expressed concern about the adverse effects of property on self-actualization. However, she focuses concern on the detrimental impact of property on people other than the property owner. She distinguishes between "fungible" and "personal" property, the latter being property which increases self-actualization. She adopts the principle that property fungible to person X should be denied to X if giving that property to X would deny personal (that is, self-actualizing) property to Y. n203

Radin's standard accords with Hegel's own reasoning. In addressing the severe inequality of property distribution in his own day, Hegel argued that his system required only equality as to the possibility of obtaining property. n204 Hegel implicitly endorses the view that property can be denied to person X if giving this property to X would deny Y the possibility of obtaining property. Under Radin's standard, whether an act of appropriation is "healthy" depends upon whether it has deleterious effects on others. This standard has a resemblance to Locke's "enough and as good" condition. As long as there is enough and as good potential property for the self-actualization of others, one may appropriate.

In fact, Radin's principle of "fungible" and "personal" property is the "enough and as good" condition unless we construe it in one of two ways. The first construction would require people to disgorge their fungible property, even when there is "enough and as good." This position does not make much sense if subjective judgments determine personal attachment to property. Property that objectively appears to be fungible may actually be personal; [*337] occasionally someone will have a personality stake in U.S. Savings Bonds or GM stock.

The second construction would not require people to disgorge personal property even when there is not "enough and as good" property available to all. This position makes some sense on a cost/benefit rationale: with truly personal property, we may be damaging the self-actualization of the property-loser as much as we would augment the self-actualization of those to whom the property is distributed. In a world of property shortage, some persons will be malnourished in their self-actualization. It is just a matter of who.

The fungible/personal distinction therefore renews the subjectivity dilemma, a problem recognized by Radin. "Fungible" and "personal" are strong intuitive guides in a culture enamored with economic analysis. Stock portfolios, mining rights, and tons of wheat are fungible; photos, diaries, and pets are not. Yet this leads us nowhere with the person willing to sell his grandmother or the person who keeps pet wheat. We are left with either an artificially constrained or an entirely subjective measure of when property actualizes the self.

3. Intellectual Property Under Hegel

For Hegel, intellectual property need not be justified by analogy to physical property. In fact, the analogy to physical property may distort the status Hegel ascribes to personality and mental traits in relation to the will.

Hegel writes:

Mental aptitudes, erudition, artistic skill, even things ecclesiastical (like sermons, masses, prayers, consecration of votive objects), inventions, and so forth, become subjects of a contract, brought on to a parity, through being bought and sold, with things recognized as things. It may be asked whether the artist, scholar, &c., is from the legal point of view in possession of his art, erudition, ability to preach a sermon, sing a mass, &c., that is, whether such attainments are "things." We may hesitate to call such abilities, attainments, aptitudes, &c., "things," for while possession of these may be the subject of business dealings and contracts, as if they were things, there is also something inward and mental about it, and for this reason the Understanding may be in perplexity about how to describe such possession in legal terms. . . . n205
Intellectual property provides a way out of this problem, by "materializing" these personal traits. Hegel goes on to say that "[a]ttainments, eruditions, talents, and so forth, are, of course, owned by free mind and are something internal and not external to it, but even so, by expressing them it may embody [*338] them in something external and alienate them." n206

Hegel takes the position that one cannot alienate or surrender any universal element of one's self. Hence slavery is not permissible because by "alienating the whole of my time, as crystallized in my work, I would be making into another's property the substance of my being, my universal activity and actuality, my personality." n207 Similarly, there is no right to sacrifice one's life because that is the surrender of the "comprehensive sum of external activity." n208 This doctrine supplies at least a framework to answer the question of intellectual property that most concerns Hegel. It is a question we ignore today, but one that is not easy to answer: what justifies the author in alienating copies of his work while retaining the exclusive right to reproduce further copies of that work?

A sculptor or painter physically embodies his will in the medium and produces one piece of art. When another artist copies this piece Hegel thinks that the hand-made copy "is essentially a product of the copyist's own mental and technical ability" and does not infringe upon the original artist's property. n209 The problem arises when a creator of intellectual property does not embody his will in an object in the same way the artist does. The writer physically manifests his will only "in a series of abstract symbols" which can be rendered into "things" by mechanical processes not requiring any talent. n210 The dilemma is exacerbated by the fact that "the purpose of a product of mind is that people other than its author should understand it and make it the possession of their ideas, memory, thinking, &c." n211 This concern for the common of ideas is familiar.

In resolving this dilemma, Hegel says that the alienation of a single copy of a work need not entail the right to produce facsimiles because such reproduction is one of the "universal ways and means of expression . . . which belong to [the author]." n212 Just as he does not sell himself into slavery, the author keeps the universal aspect of expression as his own. The copy sold is for the buyer's own consumption; its only purpose is to allow the buyer to incorporate these ideas into his "self."

Hegel also identifies the instrumentalist-labor justification as a consideration against granting full rights of reproduction to buyers of individual copies [*339] of a work. Hegel admits that protecting intellectual property is "[t]he purely negative, though the primary, means of advancing the sciences and arts." n213 Beyond this, Hegel says little. He declares that intellectual property is a "capital asset" and explicitly links this label to a later section in which he defines a "capital asset." n214 There is considerable literature on how Hegel did not develop the idea of "capital" to its logical conclusions, n215 but here "capital asset" can be understood as property which has a greater tendency to permanence and a greater ability than other property to give its own economic security.