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Nature of Property: Objective or Subjective
Swerve of Shore posted a topic in Political PhilosophyHaving <a href="http://forum.objectivismonline.com/index.php?showtopic=22911">introduced myself</a> already, I am now making my first substantive post. This is the first of an intended series of interrelated posts. While it might change based on the flow of discussion, I expect to advance the following argument: because property rights are subjective by nature and must be defined by government, democracy must therefore be a more fundamental principle than property rights. I question whether there are any fundamental property rights or whether all property rights flow from the social contract, i.e., are necessarily defined, and therefore created, by government. The most difficult case, to which I plan to devote my next post, is the question of ownership of natural resources, including land. This post explores what seems to be a far simpler case, a case closer to being fundamental: ownership of inventions of the mind. To put it in terms of Atlas Shrugged, I will save the case of d’Anconia copper for my next post and take on Rearden metal here. The principle that one should own the product of one’s own invention seems, at a minimum, to be reasonable: among other things, it encourages progress and productivity. But I wonder whether it is truly a fundamental and inviolable principle. The case becomes more difficult when we think of the most common type of invention in this era: inventions for hire. If one man (or corporation) hires another (or an entire workforce) to develop an invention, should the invention belong to the one who puts up the money or the one(s) whose mind and work actually creates the invention? But, let’s leave that aside and take the easier case: Rearden metal, which was created almost entirely by Henry Rearden’s tireless individual efforts of sweat and mind over many years. Unless Rearden keeps the metal entirely to himself, property rights in even this most personal of inventions must be defined by government. Under current U.S. law (and that of most other nations), Rearden has essentially two options for maintaining his property rights: trade secret protection and patent filing protection. If he chooses the first option, trade secret protection, Rearden’s rights are perpetual … at least until somebody else duplicates his invention, either by independent research or by reverse engineering. As long as Rearden puts contracts and other confidentiality procedures in place, the law protects him from others wrongfully appropriating his trade secrets, principally by giving him the right to monetary compensation (i.e., transferring the thief’s profits to Rearden). Rearden’s other option is to file for a patent on his invention, which requires him to publicly disclose all of the invention details, but provides him with a monopoly on it over a fixed number of years, even against those who might independently develop the same invention. Patent law is clearly a creation of government, designed to balance the rights of the individual inventor against the collective benefit to the public of disclosure of the details of the invention. It would be difficult to argue that the exact contours of this legal regime can be objectively determined. At a minimum, the government must make a subjective decision as to the number of years that the patent monopoly is afforded. Until reading The Virtue of Selfishness, I thought that this fact was an indictment of Objectivism itself. However, I now see that Ayn Rand recognized the need for government to set out the details and that there could be well-intentioned disputes among the law makers: Objectivism, it seems, only requires that government set out its standards in an objective way (“the rule of law”) rather than through arbitrary and subjective guidelines that must be interpreted by an outside arbiter (“the rule of man”). The question I have for this forum is whether there is a central kernel to property rights in inventions that objective reason requires. That is to say, is there some fundamental property right that no legitimate government can modify or impinge?