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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=518182
"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. Famously, utilitarianism does not believe in natural rights2 and 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 property, in general, and intellectual property, specifically, 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."
"Hegel is often cited by personality theorists, but almost always incorrectly. In this Article I seek to save Hegel’s analysis of property from the misperceptions of its well-meaning proponents. I believe that the version of the personality theory of property that dominates in American intellectual property scholarship is imbued by a romanticism that is completely antithetic to Hegel’s project."
"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."
"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. Rather, Hegel would argue that should the state in its discretion decide to establish an intellectual property regime, it would be coherent to conceptualize it in terms of property principles."
"Surprisingly, although Hegel thinks that property is necessary for a certain conception of personhood, he leaves to practical reason the decision as to what specific property rights a state should adopt. In contrast to a widespread misconception, Hegel completely rejects any concept of natural law generally, and any natural right of property, specifically. Jeremy Bentham, the founder of modern utilitarianism, thought that the very concept of natural rights was “nonsense on stilts”. Hegel goes a step further and 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."
"Hegel will insist that abstract right (including property) is external to the subject. That is, the subject is subjected to the law. The legal subject obeys the law of property and contract is not because she subjectively believes that it is right, but because she recognizes it as a means to accomplish her ends.
This means that the legal subject is an “uncultured” creature who represents an impoverished conception of personhood. The legal subject is fit only for the tawdry business of buying and selling. She is not yet capable of morality or ethics and cannot yet become a lover, mother, friend, participant in civil society, voter, or legislator – let alone an artist."
"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. All that matters to Hegel is that buying and selling occur – the identity of what is bought and sold is irrelevant for the purpose of establishing the rule of law. One implication of this is that although in order to function successfully, a modern state must recognize some property rights because the rule of law is one of its most basic building blocks, but it is not necessary that it protect any specific property rights."
"Hegel emphasizes that property is a legal right enforceable against legal subjects with respect to objects, not a natural relationship between a subject and object. [...]
A Hegelian property analysis can not legitimately be used to justify enhanced rights with respect to intellectual property such as the Continental droit morale. First, a moral right assumes a unique relationship between an artist and her creation so that destruction of the creation is somehow harmful to the artist. This is an empirical claim based on the content of the art work irrelevant to the formal role of property. Second, insofar as moral rights are a limitation on the artist’s right and power of alienation over her creations they are inconsistent with a Hegelian analysis of property. Hegel believes that property rights are only fully consummated in the alienation of property through contract. This is because it is only through performance of reciprocal contractual obligations that two legal subjects effectively recognize their mutual rights and duties. In other words, in contract, the subject – who claims to be law abiding – proves it by quite literally putting his money where his mouth is. Consequently, moral rights in artistic works may or may not be a good ideas as a practical matter but they have nothing to do with the creation of abstract right and legal subjectivity."
"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."
"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. Famously, utilitarianism does not believe in natural rights2 and 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 property, in general, and intellectual property, specifically, 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."
"Hegel is often cited by personality theorists, but almost always incorrectly. In this Article I seek to save Hegel’s analysis of property from the misperceptions of its well-meaning proponents. I believe that the version of the personality theory of property that dominates in American intellectual property scholarship is imbued by a romanticism that is completely antithetic to Hegel’s project."
"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."
"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. Rather, Hegel would argue that should the state in its discretion decide to establish an intellectual property regime, it would be coherent to conceptualize it in terms of property principles."
"Surprisingly, although Hegel thinks that property is necessary for a certain conception of personhood, he leaves to practical reason the decision as to what specific property rights a state should adopt. In contrast to a widespread misconception, Hegel completely rejects any concept of natural law generally, and any natural right of property, specifically. Jeremy Bentham, the founder of modern utilitarianism, thought that the very concept of natural rights was “nonsense on stilts”. Hegel goes a step further and 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."
"Hegel will insist that abstract right (including property) is external to the subject. That is, the subject is subjected to the law. The legal subject obeys the law of property and contract is not because she subjectively believes that it is right, but because she recognizes it as a means to accomplish her ends.
This means that the legal subject is an “uncultured” creature who represents an impoverished conception of personhood. The legal subject is fit only for the tawdry business of buying and selling. She is not yet capable of morality or ethics and cannot yet become a lover, mother, friend, participant in civil society, voter, or legislator – let alone an artist."
"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. All that matters to Hegel is that buying and selling occur – the identity of what is bought and sold is irrelevant for the purpose of establishing the rule of law. One implication of this is that although in order to function successfully, a modern state must recognize some property rights because the rule of law is one of its most basic building blocks, but it is not necessary that it protect any specific property rights."
"Hegel emphasizes that property is a legal right enforceable against legal subjects with respect to objects, not a natural relationship between a subject and object. [...]
A Hegelian property analysis can not legitimately be used to justify enhanced rights with respect to intellectual property such as the Continental droit morale. First, a moral right assumes a unique relationship between an artist and her creation so that destruction of the creation is somehow harmful to the artist. This is an empirical claim based on the content of the art work irrelevant to the formal role of property. Second, insofar as moral rights are a limitation on the artist’s right and power of alienation over her creations they are inconsistent with a Hegelian analysis of property. Hegel believes that property rights are only fully consummated in the alienation of property through contract. This is because it is only through performance of reciprocal contractual obligations that two legal subjects effectively recognize their mutual rights and duties. In other words, in contract, the subject – who claims to be law abiding – proves it by quite literally putting his money where his mouth is. Consequently, moral rights in artistic works may or may not be a good ideas as a practical matter but they have nothing to do with the creation of abstract right and legal subjectivity."
"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."
