I just read a fascinating paper, “Law and Economics, David Hume and Intellectual Property,” by Scottish law professor Hector Lewis MacQueen. ((University of Edinburgh School of Law, Working Paper Series, No 2011/09; also published in Nick Kuenssberg (ed), Argument amongst Friends: Twenty-five years of Sceptical Enquiry (David Hume Institute, Edinburgh, 2010), pp 9–14. See also MacQueen’s Intellectual Property and the Common Law in Scotland C.1700-C.1850.)) MacQueen argues that Hume probably would not have recognized IP as a form of property. This seems right to me. As Arnold Plant noted in a classic study in 1934, “The Economic Theory Concerning Patents for Inventions”: ((Economica, New Series, 1, no. 1 (Feb., 1934).))
The statutes creating patents in the various countries impose limitations on the exercise of the property rights which they comprise, but these are not the only peculiarities of this form of property. Despite the limitations, property rights in patents are more potent than is generally true of private property. The significance of private property in the economic system was enunciated long ago with great clarity by David Hume in his Enquiry Concerning the Principles of Morals. Property, he argued, has no purpose where there is abundance; it arises, and derives its significance, out of the scarcity of the objects which become appropriated, in a world in which people desire to benefit from their own work and sacrifice. [Emphasis added]
In other words, Hume recognized the importance of scarcity in the definition of what property is. ((See also my Against Intellectual Property, text at n. 57, making a similar point about Hume.))
One thing that caught my eye was this quote from one of Hume’s footnotes:
Some philosophers account for the right of occupation, by saying, that every one has a property in his own labour; and when he joins that labour to any thing, it gives him the property of the whole: But, 1. There are several kinds of occupation, where we cannot be said to join our labour to the object we acquire: As when we possess a meadow by grazing our cattle upon it. 2. This accounts for the matter by means of accession; which is taking a needless circuit. 3. We cannot be said to join our labour to any thing but in a figurative sense. Properly speaking, we only make an alteration on it by our labour. This forms a relation betwixt us and the object; and thence arises the property, according to the preceding principles. [Treatise of Human Nature, Book III, Part II, Section III note 16; all emphasis added]
Here Hume is criticizing the overly metaphorical (“figurative”) idea of “labor” being “joined to” or mixed with objects, and he disagrees that this assumption is necessary to justify Lockean homesteading. He thinks a simpler version of Locke’s argument still works, one that drops the assumption that labor has to be “joined” to the object. I find this fascinating because I have long argued that the whole focus on labor is a key mistake of Lockean homesteading theory and IP arguments. ((See my “The Death Throes of Pro-IP Libertarianism” and my posts Thoughts on the Latecomer and Homesteading Ideas; or, why the very idea of “ownership” implies that only libertarian principles are justifiable; Locke, Smith, Marx and the Labor Theory of Value; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging” and Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading.)) In my view, the focus on labor has set both political theory and economics back: in political theory it leads to the idea of “creationism”–the confused idea that you own “things” you “create” by virtue of being a creator (as opposed to recognizing that production means transforming existing property, thus creating wealth but no new property or property titles), which leads to the fallacious notion of IP; and in economics to the labor theory of value which later led to a host of Marxian errors.
In my view, labor is nothing but a type of action. It is not special. We don’t “own labor” any more than we own our actions. We own our bodies–we are self-owners—which gives us the right to decide what actions we engage in. “Owning one’s actions” (or labor) is just a confusing and potentially misleading way of describing the fact of self-ownership, or consequences of that fact. But recall that Rothbard ((“Human Rights” As Property Rights.)) argued that all rights are property rights–that the right to “free speech,” say, is merely a consequence of or derivative of more fundamental property rights. Likewise, labor or action “ownership”, to the extent this bizarre formulation has any meaning, is just a consequence of self-ownership. It is not some independent right. In fact it is just a metaphorical or figurative way of saying (less precisely) that the actor is a self-owner. If you are a self-owner you have a right to perform actions–including “labor”. (Self-ownership also gives you the right to do pushups, eat ice cream, dream, love, read books, and reminisce, but it would be odd to say you own pushups, eating, dreams, love, your literacy, or memories.)
The Lockean argument is that we own our labor, and “therefore” we own resources that we “mix” the labor with. The problem with this formulation is that it supports the labor theory of value, and also leads some to conclude that if you create with your some “thing” that “has value” then you “own” that thing, since you have “mixed your labor” with it. Proponents of IP often make such crankish arguments; they even say things like IP infringement is “theft of the creator’s labor”, as if they view labor as some owned substance emanating mystically from godlike Creators, ((See my post Inventors are Like Unto …. GODS…..)) “mixed with” or somehow “present in” creation-objects floating out there in Platonic space (but somehow still connected to the real world). (And despite the fact that Locke did not believe his own homesteading argument extended to IP.) ((See my post Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”, where I note that Tom Bell and Ronan Deazley have shown that neither the Founders nor Locke thought that IP was a natural right–that is, they only favored IP as a policy tool.))
One comment by MacQueen seems to support my take on this: he writes “Hume however rejected the justification of property commonly used in relation to copyright and other forms of intellectual property, a theory most often associated with Hume’s philosophical predecessor, John Locke; that is, the labour theory by which I own what is produced by my labour.” In other words, Locke’s homesteading argument, if it contains the labor part, could lead some to conclude that IP is property. This is exactly why it was a mistake to include the idea of labor ownership as part of the homesteading argument. And as Hume shows, it’s not necessary. (It’s not clear to me whether MacQueen thinks Locke himself would agree that his homesteading theory, even including the labor assumption, extends to IP; but as noted above, it seems fairly clear Locke did not believe this. Since the labor assumption does somewhat support the notion of IP, it’s not clear why Locke didn’t think it extended to IP; perhaps Locke himself knew that the labor portion of his argument was more metaphorical and not to be taken literally. But this is just support for streamlining the argument.)
In my view, Locke’s argument can be simplified by dropping the weird argument that labor is owned. Homesteading still results in property because a homesteader, by being the first to emborder or transform some unowned resource established a better claim to that resource than any latecomer. (For elaboration, see my “What Libertarianism Is,” n. 24 and accompanying text et pass.)
And this is what Hume seemed to recognize. In the passage quoted above, he disagrees with the Lockean formulation that the right of occupation (ownership) requires the idea “that every one has a property in his own labour; and when he joins that labour to any thing, it gives him the property of the whole.” First, Hume notes “There are several kinds of occupation, where we cannot be said to join our labour to the object we acquire: As when we possess a meadow by grazing our cattle upon it.” I think he is saying here that you acquire some rights to the pasture even though you don’t do any labor (the cows are just walking on it and eating grass, but you are not performing labor). I think he is here trying to show that labor-mixing is not necessary for homesteading.
Then: “2. This accounts for the matter by means of accession; which is taking a needless circuit.” Now accession, as MacQueen notes, is this idea: “the addition of matter to the original object such as the fruits of our garden or the offspring of our cattle which become our property even without possession”. If you own an apple tree, you own apples that plop from it “by accession”–without even taking possession of them (or laboring on them). I think Hume is saying insisting on the labor portion of the argument to justify any homesteading claim leads to a needlessly complicated argument (needless circuit) to account for why the cow owner homesteads rights in the pasture.
Then he criticizes the rigor of the entire concept of mixing-owned-labor: “3. We cannot be said to join our labour to any thing but in a figurative sense.” Instead, he recognizes the role of labor, or action: it is used to alter existing property, which gives rise to more wealth but not more property (this is similar to what Rand, Rothbard, Mises and others have said about how productive human action involves only rearranging or altering existing resources, not creating new things): ((See Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”.)) he writes: “Properly speaking, we only make an alteration on it by our labour.”
Then, he notes that this action–of being the first one to possess, use, transform an unowned scarce resource–is sufficient to give the homesteader a better claim to the resource than latecomers, without every saying labor is owned: “This forms a relation betwixt us and the object; and thence arises the property, according to the preceding principles.” Proto-Hoppean!
What a great set of insights in one little footnote.
Update: see Cordato and Kirzner on Intellectual Property