Abstract
There is a common view, dating back at least to Hume, that property rights presuppose scarcity. This paper is a critical examination of that thesis. In addition to questioning the thesis, the paper highlights the need to divorce the debate over this thesis from the debate over Intellectual Property (IP) rights (the area where it is most frequently applied). I begin by laying out the thesis’ major line of defense. In brief, the argument is that (1) property rights are legitimate only when necessary, (2) necessary only to avoid injury resulting from one party’s use or possession of a good over others’, and (3) that such injury is possible only where there is scarcity. While I accept (1) (at least for the sake of argument), I argue that each of three prominent theories of the justification of property rights cast doubt on (2) and (3). As it turns out, at the theoretical level, there are a number of different ways of dealing with this conflict. However, I argue, no matter which theoretical path one takes, it turns out that the practical implications of the relationship between property rights and scarcity have been woefully misconstrued. Finally, I recount an independent argument for the thesis under consideration and argue that, whether or not it is successful against IP, it does not extend as an argument against ownership of non-scarce goods in general. This serves to further highlight the need to distinguish arguments for the thesis under consideration from arguments against IP.
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Notes
It might be more accurate to say that, for Hume, property rights presuppose non-desperate scarcity, since extreme scarcity can undermine the justification of property rights just as easily as extreme abundance. However, since my focus here is on the latter, I set this aside in what follows. Thanks to an anonymous reviewer for highlighting the need to address this point. Hume discusses this issue in both A Treatise of Human Nature (1739) and An Enquiry Concerning the Principles of Morals (1751). Also see, e.g., Hoppe (1989), A Theory of Socialism and Capitalism; Kinsella (2008), Against Intellectual Property; Palmer (1989), “Intellectual Property: A Non-Posnerian Law and Economics Approach”; Palmer (1990), “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects”; Plant (1974), “The Economic Theory Concerning Patents for Inventions”; Rothbard (1997), “Justice and Property Rights”; McElroy (2003), “Intellectual Property: Copyright and Patent” (on Benjamin Tucker).
“The necessity which is recognize in all civilised societies of conferring rights of private or personal property arises from the limited supply of that for which there is an unlimited demand. It is only from a limitation of supply that there can be any value in exchange.” Great Britain and Stephen, Copyright Commission, xlviii (1897).
Of course, ownership of these is often protected through IP practices. But the manifestations of these goods are themselves arguably non-scarce, unlike in the case of, for example, (non-electronic) books.
See Honoré (1961), “Ownership.”
Waldron (1988), The Right to Private Property.
Peter Jaworski and I argue something similar with respect to liability in our (accepted) “To Inspect and Make Safe: Morally Responsible Liability in Property Ownership.”
Hume (1751), An Enquiry Concerning the Principles of Morals, sec. III.
Though he does so elsewhere: “[T]he situation of external objects is their easy change, join’d to their scarcity in comparison of the wants and desires of men.” A Treatise of Human Nature, bk. III, sec. II (1739).
E.g., Locke or Hegel, more on whom later.
That is, the use or possession merely as such. Obviously, even non-scarce goods—say, 3D-printed guns—could be used to injure.
Compare, especially, Kinsella (2008), Against Intellectual Property, pp. 29–31.
Ibid., p. 29, emphasis added.
Ibid., p. 31.
Hoppe (1989), A Theory of Socialism and Capitalism, p. 235 n. 9, emphasis added.
For discussion of relevant arguments concerning the extension of a Lockean theory to IP in particular, see Tavani (2005), “Locke, Intellectual Property Rights, and the Information Commons.”
Hegel (1821), Elements of the Philosophy of Right, sec. 41.
See, e.g., Resnik (2003), “A Pluralistic Account of Intellectual Property,” pp. 326–327.
“The Constitution of the United States,” Article 1, Section 8, Clause 8.
See Cruft (2006), “Against Individualistic Justifications of Property Rights.”
Alternatively, you might hold that I’ve misunderstood the nature of rivalry, or that I’ve neglected to recognize certain ways of delineating good types. None of this affects the points to come.
An anonymous reviewer offered a helpful distinction between “empirical scarcity”—scarcity that arises from, e.g., a physically limited number of resources—and “normative scarcity”—restrictions on access that we impose (perhaps, say, because we recognize the value of self-expression). With this distinction in mind, one might read my argument as contending that the argument presented in “In Defense of the Thesis that Property Rights Presuppose Scarcity” is refuted (or at least its premises severely under-motivated) insofar as the scarcity in question is empirical scarcity. Since it seems to be empirical scarcity that people have had in mind in drawing on Hume’s view—e.g., in challenging IP—I take this to be an important result insofar as our concern is the practical upshot of Hume’s argument.
Again, one might instead suggest that when a good has expressive power for me, there are no other goods of the relevant type. It should be clear, though, that this wouldn’t affect the point in any substantive way.
Kinsella (2008), Against Intellectual Property, p. 43.
Ibid., pp. 43–44.
In fact, ironically, it may be that what would affect someone’s property rights would be the thesis that one cannot own non-scarce goods. Suppose that Ted owns a hamburger shop where he makes hamburgers just like the ones my machine produces. If property rights presuppose scarcity, then, arguably, once I make my machine, Ted would cease to own the hamburgers he produces!
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Faraci, D. Do Property Rights Presuppose Scarcity?. J Bus Ethics 125, 531–537 (2014). https://doi.org/10.1007/s10551-013-1866-0
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DOI: https://doi.org/10.1007/s10551-013-1866-0