This post is an attempt to present some of the problems and issues surrounding the argument against the institution of Intellectual Property as they may be seen from an analytical point of view in the Misesian sense.
Here I state the main ideas as I understand them. If this analysis mischaracterizes other people’s arguments against IP, then that can be pointed out during the course of the discussion.
The two main components of the argument against Intellectual Property are that things such as ideas and recipes are of a specific nature (1), and that this has some bearing on the laws that we are subject to (2).
If we say that there is no relationship between 1 and 2, or that 1 has no bearing on 2, then there is no reason to treat 1 and 2 in the same theory. We can simply assert that ideas and recipes are of a certain nature. Separately, in a different article or book, and with no mention of the non-scarcity of ideas and recipes, we can make the independent argument that we ought or ought not be subject to a specific law X, or, specific law X is unjustified from a libertarian point of view.
To me it is clear that the argument against IP is an argument seeking to establish or demonstrate a relationship between 1 and 2.
Here are what I consider some problems with the attempt to demonstrate such a relationship.
(in this initial post, we’ll grant for the sake of argument the objective conception of scarcity—i.e., the notion that objects are objectively scarce or non-scarce independent of the actions of individuals)
If we try to establish the universal principle that the non-scarcity of an idea or recipe implies that no laws ought be made in regard to said idea or recipe, or, that such laws are unjustified from a libertarian point of view, we have to realize the full implications of the universal application of this principle.
Ideas, or the utilization of ideas, that can easily harm other people are also not scarce. If I say to another person “look over there,” knowing that he may turn his head into a sharp object, I utilize a non-scarce idea or recipe “look over there” possibly in order to harm another person.
The universal ethical commandment that no laws be made with regard to the utilization of non-scarce ideas or recipes implies acceptance of all cases of this nature, including many we could conceivably think of which are far worse than the example above.
If an anti-IP social theorist supports or advocates laws that prevent the utilization of non-scarce ideas or recipes, even if only in exceptional cases, he acknowledges the principle that it is not the non-scarcity of the idea that is essential, but the perceived severity of the consequences of the utilization of the idea or recipe that matters.
An argument that I won’t make here could possibly be made based on the following scenario:
Person A to person B: You just killed person C.
Person B to person A: Yes. I used a non-scarce idea, the idea of killing another person. There ought be no laws preventing me from utilizing non-scarce ideas. Any such laws are unjustified.
Let’s assume that a person (A) is willing to accept the universal principle that no laws ought be made limiting the utilization of non-scarce ideas or recipes, and is willing to accept the full implications of this universal commandment. What is the consequence to the person (B) who violates this precept and nevertheless enacts and enforces laws intended to prevent the utilization of some non-scarce ideas or recipes?
What will happen to person (B) who supports, or enacts, or enforces an Intellectual Property law?
If the answer is that other people (A), libertarians or otherwise, will bring force or coercion upon B, then we are saying that B should abstain from doing X because if he doesn’t A will harm him.
This is the essence of statism. The argument from force is essentially the argument of statism.
If the answer is that B’s enacting Intellectual Property laws will lead to social decline (lowered standards of living, social unrest, etc.), then first, these consequences may not happen to B (his personal standard of living may rise), and second, this implies a “utilitarian” argument (in the pejorative sense employed by theoretical objectivists) that B should abstain from some activity for the greater good of society in general, even though he himself may gain personally from that activity.
What is the point of all this? Does this mean that Intellectual Property laws are good or bad, right or wrong, moral or immoral?
Here is Mises’s answer:
“The discovery of the inescapable interdependence of market phenomena overthrew this opinion. Bewildered, people had to face a new view of society. They learned with stupefaction that there is another aspect from which human action might be viewed than that of good and bad, of fair and unfair, of just and unjust. In the course of social events there prevails a regularity of phenomena to which man must adjust his actions if he wishes to succeed. It is futile to approach social facts with the attitude of a censor who approves or disapproves from the point of view of quite arbitrary standards and subjective judgments of value. One must study the laws of human action and social cooperation as the physicist studies the laws of nature. Human action and social cooperation seen as the object of a science of given relations, no longer as a normative discipline of things that ought to be–this was a revolution of tremendous consequences for knowledge and philosophy as well as for social action.” (Human Action)
The answer lies in the science of human action, and that is what has been overlooked.
What the science of human action attempts to demonstrate is how the action person A is contemplating (X) entails a consequence or effect (Y) that he was not aware of, or that he previously believed was contingent and not necessary. By means of establishing the existence and operation of exact laws of human action, praxeology demonstrates how person A harms himself in pursuing X, in cases where X logically entails Y, and A wants to avoid Y.
In cases where praxeology can demonstrate a logically necessary connection between an act and its consequence or accompaniment, then person A may abstain from an attempt at X of his own volition in order to avoid the occurrence of Y which he wants to avoid. In this case, A abstains from self-inflicted harm, due to the praxeological demonstration that Y must occur if he is successful in attaining X. In this case, person A abstains from X entirely out of self-interest, and without the need for interpersonal threats of force, and without the need for government intervention.
As Mises tried to explain, there is no scientific standard of the just or unjust application of force or coercion (there is no such thing as a science of the ought). There are only means toward ends. However:
“..there is another aspect from which human action might be viewed than that of good and bad, of fair and unfair, of just and unjust. In the course of social events there prevails a regularity of phenomena to which man must adjust his actions if he wishes to succeed. It is futile to approach social facts with the attitude of a censor who approves or disapproves from the point of view of quite arbitrary standards and subjective judgments of value. One must study the laws of human action and social cooperation as the physicist studies the laws of nature. Human action and social cooperation seen as the object of a science of given relations, no longer as a normative discipline of things that ought to be–this was a revolution of tremendous consequences for knowledge and philosophy as well as for social action.”
What has been overlooked is the fact that in addition to actions conceivable in terms of money, prices, and exchange ratios (the realm of actions studied by economics and catallactics), there are other important realms of human action, including the realm of direct personal interactions (“ethical actions” or “political actions”) and the realm of reflective or deliberative “mental actions” or “psychological actions”.
Since ethics and law concern such ethical actions or political actions, we might try to find out whether there are any laws of such actions as there are laws of economic or catallactic action. The idea would be to demonstrate necessary accompaniments to such ethical or political actions, such that people may want to abstain from certain kinds of these actions of their own volition, and out of self-interest, without the need for interpersonal threats of force and without the need for government intervention.
The precondition for an advance in the level of social interaction, and thus for a free society, is the praxeological demonstration that certain types of social interaction entail necessary accompaniments that people may want to avoid. When people (A) begin to abstain from acts they once believed were “consequence free” but which praxeology demonstrates entail harmful effects (harmful to the actor concerned), this means that people B, C, and D, are spared the interpersonal and political strife they would otherwise have to undergo to prevent A from carrying through with his planned activity. Then, A benefits from not having to face the necessary consequences of his activity, and B,C, and D benefit from not having to confront A with force or threats.
What’s missing is praxeological knowledge in the interpersonal, political realm of human social interaction. Praxeological knowledge is primarily only acknowledged to exist in the catallactic realm of human social interaction, as demonstrated by a recent statement of Bernanke:
“The issue at this stage is not whether we have the tools to help support economic activity and guard against disinflation,” Bernanke said. “We do. The issue is instead whether, at any given juncture, the benefits of each tool [policy act or action], in terms of additional stimulus, outweigh the associated costs or risks of using each tool [policy act or action].”
Source:
(bracketed, bold, and italics added)
Thus, praxeological knowledge is inhibiting and constraining the activity of people and politicians such as Bernanke in the economic or catallactic realm of action. But since no similar knowledge has been brought to conceptual clarity in the interpersonal, ethical, or political realm of action, people do not know which of their interpersonal or political actions to abstain from in order to avoid the self-inflicted harm that must necessarily occur. The same kind of cost/benefits analysis Bernanke is pondering in the catallactic realm of his action, is not available to him in the same degree of scientific development in the ethical or political realm of his action, since there is no explicit praxeological science developed in this realm of action.
As I’ve argued in other articles and posts, most of Mises’s influential students such as Rothbard and Hayek at some point or other came to repudiate his essential teachings. Rothbard held that praxeology did not apply to the ethical realm of human action (The Ethics of Liberty), and Hayek argued that praxeology did not apply to the study of the market (“Economics and Knowledge” and Hayek on Hayek). In addition, Rand repudiated Mises’s praxeology and epistemology though she supported his libertarian conclusions and acknowledged Mises’s stature as a leading scholar and philosopher.
A general conclusion was reached by these influential writers that Mises’s vision was limited, his views somewhat antiquated or pedantic, and that his conception of praxeology as the formal science of all forms of human action was doomed to be ineffectual. They eventually turned away from and counseled against a strong pursuit of Mises’s analytical approach, and adopted and counseled instead objective or empirical approaches toward various fields of social study (ethics, the market, etc.) They concluded that theoretical subjectivism, methodological individualism, praxeology, and the search for exact laws of human action, were unsuitable theoretical tools for comprehending the phenomena of ethics or of the market. The students of Rothard, Hayek, and Rand, largely accepted the conclusions of their teachers.
But Mises held another view. He wrote:
“It would be preposterous to assert apodictically that science will never succeed in developing a praxeological a prioristic doctrine of political organization that would place a theoretical science by the size of the purely historical discipline of political science.” (The Ultimate Foundation of Economic Science)
Thus, Mises held that praxeology (formal analysis), and not objective ethics or empirical study was the key to comprehending the political side of man.
The attempt to conceive scarcity as an objective quality of the things themselves and the attempt to arrive at a normative prescription (implicit or explicit) of what the law should be based on this conception, are both signs that the works of Mises are still not fully understood or appreciated.