The following is an excerpt from Stephen Kinsella's Against Intellectual Property. Obviously, it talks primarily about the utilitarian support for IP, but this argument can be used against any use of utilitarianism. (Emphasis is mine.)
Advocates of IP often justify it on utilitarian grounds. Utilitarians hold that the “end” of encouraging more innovation and creativity justifies the seemingly immoral “means” of restricting the freedom of individuals to use their physical property as they see fit. But there are three fundamental problems with justifying any right or law on strictly utilitarian grounds.
First, let us suppose that wealth or utility could be maximized by adopting certain legal rules; the “size of the pie” is increased. Even then, this does not show that these rules are justified. For example, one could argue that net utility is enhanced by redistributing half of the wealth of society’s richest one percent to its poorest ten percent. But even if stealing some of A’s property and giving it to B increases B’s welfare “more” than it diminishes A’s (if such a comparison could, somehow, be made), this does not establish that the theft of A’s property is justified. Wealth maximization is not the goal of law; rather, the goal is justice — giving each man his due.
Even if overall wealth is increased due to IP laws, it does not follow that this allegedly desirable result justifies the unethical violation of some individuals’ rights to use their own property as they see fit.Note that this is not the explanation why one may not own information he produced. For that, read Kinsella's monograph or my previous post (after the videos). I may write more about intellectual property and scarcity from Jewish point of view later.
4 comments:
I don't understand your premise. At least from a Jewish point of view, the whole concept of recognizing property to begin with is utilitarian in nature - G-d's is the earth, and all therein - but we, as a society, agree to allow people to take control of G-d's property, and restrict the access of others to it, so that there will be an incentive to produce.
Isn't that utilitarian?
The way I understand it, utilitarianism is not any goal-oriented law system. It's law system whose objective is to maximize utility, individual benefit from wealth.
Saying that we want to live in a just society is not utilitarian. Saying that we want to live in a society where conflict is at a minimum is not utilitarian. (It's true, there can be multiple ways of minimizing conflict.)
Bottom line is: I don't think we restrict access of others to the property so that there is incentive to produce.
By the way, from Chassidic point of view, we restrict others' access to homesteaded property because the property is not destined to them for use in their avoidas Hashem but is destined to someone else. So, if I steal your pencil, not only am I non-raising sparks in it, but I am also preventing you from raising sparks in it.
Also, what is our argument why a sick person who needs a kidney may not compel a healthy person to give up the kidney? Certainly not utility -- the utility of the sick person is greater, since the healthy person still have one kidney left.
By the way, your proposed alternative ("Let's make property communal") won't minimize the conflict. If anything, it will maximize it. At any time, someone can come to someone else and demand his pair of shoes. You can imagine how without a rule of assigning private property, this can lead to an ever-repeating chain of conflicts.
It's true that you can set up some sort of committee that will produce rules about usage of things, etc., but that in itself is already a way of assigning property rights. The argument is that private property rights based on homesteading minimize conflict most effectively.
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