By Robert Merges, PrawfsBlawg
In this, my final response to the many interesting posts in my book, I want to traverse some comments that John Duffy made. To the other authors of posts, especially those who wrote reactions to my responses — we will have to continue offline. I have taken too much space already. And the many readers of Prawfsblawg who care nothing for IP are I am sure tired of all this.
I am going to skip over the blush-inducing praise in John’s post, and get right to his main point. He says:
” [I]f we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness?”
John says no. He says further that just as Descartes’ doubts drove him to embrace foundations that were thoroughly unhelpful when it came to elucidating actual physical reality, such as planetary motion, so my doubt-induced search for solid foundations will lead nowhere (at best), and maybe to some very bad places (at worst).
This argument may be seen to resolve to a simple point, one often made in legal theory circles: “It takes a theory to beat a theory.” (Lawrence Solum has an excellent entry on this topic in his Legal Theory Lexicon, posted on his Legal Theory Blog some time back.) The idea here is that utilitarian theory is a true theory, because it is capable of proof or refutation and because it guides inquiry in ways that could lead to better predictions about the real world. By this criterion, deontic theories are not real theories because they cannot be either proven or refuted. Einstein’s famous quip comes to mind; after a presentation by another scientist, Einstein supposedly said “Well, he wasn’t right. But what’s worse is, he wasn’t even wrong.”
My response starts with some stark facts. We do not know whether IP law is net social welfare positive. Yet many of us feel strongly that this body of law, this social and legal institution, has a place in a well-functioning society. Now ,we can say the data are not all in yet, but we nevertheless should maintain our IP system on the hope that someday we will have adequate data to justify it. The problem with this approach is, where does that leave us in the interim? We could say that we will adhere to utilitarian theory because it stands the best chance of justifying our field at some future date — when adequate data are in hand. But meanwhile, what is our status? We are adhering, we say, to a theory that may someday prove true. By its own criteria it is not true today, not to the level of certainty we require of it (and that it in some sense requires of itself.) But because it will be “more true” than other theories on that magic day when convincing data finally arrive, we should stick to it.
My approach was to turn this all upside-down, I started with the fact that the data are not adequate at this time. And I admitted that I nevertheless felt strongly that IP makes sense as a field; that it seems warranted and even necessary as a social institition. So it was on account of these facts that I began my search for a better theoretical foundation for IP law.
If you have followed me so far, you will not be surprised when I say that for me, Locke, Kant and Rawls better account for the facts as I find them than other theries — including utilitarianism. Deontic considerations explain, to me at least, why we have an IP system in the absence of convincing empirical evidence regarding net social welfare. Put simply: We have IP, regardless of its (proven) effect on social welfare — so maybe (I said to myself) *it’s not ultimately about social welfare*.
This is the sense in which, to me, deontic theory provides a “better” theory of IP law. It fits the facts in hand today, including the inconvenient fact of the absence of facts. Of course, we may learn in years to come that the utilitarian case can be made convincingly. I explicitly provide for this in JIP, when I say that there is “room at the bottom,” at the foundational level, for different ultimate foundations and even new ultimate foundations. It’s just that for me, given the current data, I cannot today make that case convincingly. And it would be a strange empirically-based theory that asks me to ignore this key piece of factual information in adopting foundations for the field. To those who say deontic theories cannot be either proven or disproven, I offer the aforementioned facts, and say in effect that an amalgam of deontic theory does a better job explaining why we have IP law than other theories. And therefore that it is in this sense “more true” than utilitarian theory. Again, it fits the facts that (1) we do not have adequate data about net social welfare; and (2) we nevertheless feel IP is an important social institution in our society and perhaps any society that claims to believe in individual autonomy, rewards for deserving effort, and basic fairness.
One final point: to connect Kant with Hegel with Marx, as John does, is a legitimate move philosophically. But I have to add that for many interpreters of Marx, he is the ultimate utilitarian. What is materialism, as in Marxist historical materialism, but a system that makes radically egalitarian economic outcomes the paramount concern of the state? The famous suppression of individual differences and individual rights under much of applied Marxist theory represents the full working out of the utilitarian program under which all individuals can be reduced to their economic needs, and all government can be reduced to a mechanistic system for meeting those needs (as equally as possible)? If we are going to worry about where our preferred theories might lead if they get into the wrong hands, I’ll take Locke and Kant and Rawls any day. In at least one form, radical utilitarian-materialism has already caused enough trouble.
This is hardly all there is to say, but it is all I have time to say. So I will keep plodding along, like a steady plow horse, trying not only to sort out the foundational issues, but also to engage in policy discussion and doctrinal analysis. And with this image I close, having once again put the (plow) horse before Descartes in the world of IP theory.