LLR Pages

Monday, August 25, 2008

The Naive Support of the State to Protect Intellectual Property

To expect the welfare-warfare state--which taxes, regulates, murders, invades, bombs, hampers, conscripts, lies, imprisons, steals, and invades--which impoverishes us and hampers the economy, which penalizes innocent behavior and wastes trillions of dollars--which imposes antitrust, tort, FDA regulations and penalties on companies--to expect this agency to "create" legitimate property rights or to add "wealth" to the economy--and by setting up a state-run bureaucracy to grant monopolies to "applicants," under the oversight of the bunch of federal "judges"--is naive and confused beyond belief. It is certainly not a libertarian view.

See also Regret: The Glory of State Law, where I wrote:

Now libertarian proponents of state legal systems are for some reason optimistic about the ability of state legislature and courts to promulgate just laws. Objectivist attorney Murray Franck , for example, wrote:

Just as the common law evolved to recognize "trespass by barbecue smoke," it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws.

Hayek also believed that case-law might need occasional "correction" by the legislature (see my Legislation and the Discovery of Law in a Free Society, p. 171). Both Franck and Hayek here express confidence that it is possible for the state--via its courts and legislatures--to issue "just" law. Well, I don't know about that. Here we have a "bad" judicial interpretation of a "bad" legislated statute. Oh, well, I guess they can at least "regret" it.