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Tuesday, January 29, 2013

replying to Rob Merges, Justifying Intellectual Property

Rob Merges in his answer  is so eloquent and clear... yet his reponse to my comment doesn't quite see my point. I wasn't criticizing his book so much as making a general point about the nature of theory: that facts still (usually) matter.  And that without facts, even a philosophic perspective can't answer whether IP is justified or not.

Most theories of justice and of ethics have SOME connection to notions of welfare. Rawls's 'difference principle' is just one example; without being consequentialist in the conventional sense, the 'difference principle'  makes reference to real-world consequence, namely, the consequences experienced by the worst-off.

Any theory that makes reference to consequences needs data about what those consequences are, and therefore can suffer from the same lack of data that afflicts economics. If economics doesn't know whether (or what kind of) IP is good for us, most ethical theories will have problems, too.

Notice the factual assumptions in the following elegant sentence from Rob. He says:
"Popular culture (including much TV programming); technological improvements such as air conditioning; low-cost long-distance communication and transportation (especially important for immigrants); and cost-saving innovations of all kinds (mobile phones, hypertension medicines, etc.) are, the data show, highly valued by low-income members of our society."

Yes, but how do we know that these advantages would be absent if the law had no IP?   We need data on whether there are alternative incentives to write soap operas and invent air conditioning.  Further, how do we know that these advantages are worth more than the OTHER and DIFFERENT advantages that would occur in a world without IP... with full freedom to copy, might some folks not create avantageous alternative physical products, alternative tv series or alternative modes of keeping cool? That's exactly the kind of empirical question whose lack of answers Rob so acutely notes.

And what about the advantage of liberty itself? If a lack of IP meant no tv series and no air conditioning (both empirical propositions), worst- off persons still might prefer to endure those losses if the losses produced a gain in liberty.

Recall the distinction Isaiah Berlin made between "freedom from" and "freedom to". Arguably America has traditionally valued "freedom from" (what Hohfeld called a privilege, or what we conventionally call a liberty) more intensely than it values "freedom to" (one form of which is Hohfeld's "claim right.") "Freedom from" includes free speech and the freedom from the duty not to copy. "Freedom to" includes a property owner's right to exclussive possession, or an author or inventor's ability to control strangers' copying.

"Freedom to" may be a different kind of thing, and worth less ethically, than "freedom from".  If so, a lack of IP may bring liberty that outweighs any number of practical losses.  In any event, evaluating welfare requires some very controversial and exciting normative commitments, as well as actual data.

This isn't a criticism of Rob's book. I love his book, and its ability to generate excitement and dialogue is unparalleled. It shows  his capacious and generous mind.  But it's important to see that one can't escape the conundrums of the real world by stepping from economics to philosophy, unless one is doing a particularly etheral form of philosophy.


Posted by: Wendy Gordon | 

Posted by Wendy Gordon on January 29, 2013 at 03:26 PM | Permalink


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(Owing to its length, this comment will take several posts.)

There are two rather disparate philosophical or theoretical critiques we might make of Rawls’s approach to justice, and it seems Wendy here makes the second. But before I introduce Amartya Sen’s “social realization” critique, I want to at least mention one that comes, so to speak, from the other end of the spectrum (ideal, abstract, even utopian). The (lamentably) late G.A. (‘Jerry’) Cohen, a Marxist philosopher in the richest sense, provides us with an intriguing critique of Rawls’s theory of justice (especially for a Marxist!) insofar as he argued that “principles that reflect facts reflect principles that don’t reflect facts” (I would call these ‘Platonic’ principles) and that Rawls failed to appreciate the fundamental importance of the last, that is, “fact-free principles,” described by Cohen as “meta-ethical” but which we might also fairly describe as metaphysical. Wendy makes the converse complaint: not enough appreciation of facts. Rawls strove hard to avoid Kantian metaphysical principles or questions of metaphysical truth or moral realism (which he more or less did in his revisions to the original theory) that would have rescued his “constructivism” from charges of relativism (at least inasmuch as his concept of person(s) is the product of a particular culture and thus eschews the Kantian metaphysical conceptions of the liberty and equality of moral persons), and perhaps its characterization as an “implicitly statist” (rather than, as with Kant, ‘cosmopolitan’) moral and political philosophy. As Onora O’Neill has explained, the “Kantian constructivism” of the former work “identified the reasonable with the public reason of fellow citizens in a given, bounded, democratic society [i.e., like ‘ours’].”

Cohen argues that Rawls failed to appreciate the distinction between “fact-free principles” and “adopted rules of regulation” (the latter critically dependent in part on facts), and thus his constructivism is not a “meta-theory [or metaphysical, for that matter] theory of justice: Rawls “misidentifies the question ‘What is justice?’ with the question ‘What principles should we adopt to regulate our affairs?’” In effect, and in personal terms or from the view of the moral agent, this amounts to a failure to appreciate the deep difference between deliberating or contemplating what to do and thinking about what is the right rule (or what are the right rules) to adopt, between rules of regulation and the principles that justify them, or between optimal rules of social regulation and fundamental (normative) principles of justice, the latter having a far wider scope in practice than justice as a virtue of political institutions. The fundamental principles of justice, unlike the rules of regulation, could not in any real sense said to be “adopted,” for they “represent,” in Cohen’s words, “our convictions,” and these convictions of course are those of individual men and women (in which case, the fundamental principles of justice might depend, as Cohen concedes but does not agree, on basic facts of human nature, or simply a conception of human nature). Cohen, writes revealingly that he “agree[s] with the Socratic-Platonic view that led Socrates to reject illustrations of, for example, just behavior as providing a proper answer to the question ‘What is justice?’: no list of examples reveals what it is about the examples that makes each an example of justice,” or justice as such. The Humean concern with the “circumstances of justice,” ostensibly central to the Rawlsian view, asks “Under what circumstances [or conditions] is (the achievement of) justice possible and/or necessary?” As Cohen makes clear, the answer to the question “What is justice?” is prior to the Humean concern with the circumstances of justice, and that Hume himself understood justice, “in its primary application, [as] a virtue of persons,” not in the first instance as a virtue of the basic structure of society.

Posted by: Patrick S. O'Donnell | Jan 29, 2013 9:10:14 PM

Cohen’s conceptual and Platonic-inspired critique of Rawls might be characterized as transcendentalist, demanding a utopian vision of the Good, as it were, although we should not forget the philosopher’s descending dialectic (as Iris Murdoch reminds us) back into the Platonic Cave, which suggests the “ideal” of justice has at least educative (as paideia), evaluational, and motivational relevance, even if the “Euclidian”or utopian constructions it inspires are not feasible models for definitely realizable concretions. As William Galston writes in Justice and the Human Good (1980), “utopias exist in speech; they are ‘cities of words.’ This does not mean that they cannot exist but only that they need not ever. This ‘counterfactuality’ of utopia in no way impedes its evaluative function.” Galston elaborates:

“Although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….] Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.”

Indeed, to mistake utopian constructions—of justice or anything else—for “definitely realizable concretions,” or as a political “program for action,” or as the “ends” toward which history is progressing (utopias misconstrued as ‘blueprints’), gives rise to the shadow of utopian thought and imagination, to the reasons behind our use of the term “utopianism” in a pejorative sense. George Santayana (Reason in Society, 1952) captured something of the true and indispensable nature of utopian constructions inspired by visions of the Good or even more modest Kantian or Kantian-like moral principles of freedom and equality:

Posted by: Patrick S. O'Donnell | Jan 29, 2013 9:17:47 PM

I'm having trouble posting the third and final part of my post having to do with Sen's "realization-focused" approach to distributive justice as motivated by social choice theory.

Posted by: Patrick S. O'Donnell | Jan 29, 2013 9:32:13 PM

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