≡ Menu

Succinct Criticism of Utilitarianism and Libertarian Creationism

My comment to a Cobden Center post (see also Rothbard’s Utilitarian Free-Market Economics):

@Bryan Niblett:

“The reason for private property is that a man is morally entitled to that which he brings into being and property laws are necessary to give him freedom of action in the domain of the property he has created.

“I recommend that you read John Locke’s Second Treatise on Civil Government(a great work) where he explains all this.”

The problem is the assumption that creation is an independent source of property rights. It is not. Creation is merely rearranging already-owned property into a more valuable configuration. Thus creation presupposes the things modified are already owned–and adds wealth, but not property rights. The only legitimate way to acquire property rights is by homesteading (appropriation) of unowned resources, or contractually from a previous owner.

The fallacious “creationist” approach to property is mixed up with Locke’s imprecise and overly metaphorical comments about the “ownership” of labor–labor is just action; it’s something you do with your body, i.e. with your property. If I own my body and other this the ownership of these scarce resources gives me the power to use them–to act with them–as I see fit. To say I own this action (labor) is unnecessary and double-counting, and leads to confusion. Lockean homesteading works simply because by transforming and using an unowned resource first you establish a better claim to it; there is no need in this argument to assume that labor is “owned”. And thus, there is no basis for the creationist view that if you labor to make an information pattern that you own that pattern. Labor only serves as part of homesteading in that it is just the way human action transforms and thus emborders a previously-unowned scarce resource. That is, it presupposes we are talking about ownable things–that is, things that need property rights to prevent conflict over their use–that is, conflictable things, or sometimes as they are called, rivalrous, or “scarce.” Information is not an ownable thing at all. It may not be homesteaded at all. It is not “transformed” or embordered. Rather, information is what guides human action; by acting with respect to (laboring on) a scarce good, following information that guides one’s actions, one transforms that scarce good and emborders it, thus appropriating it to one’s estate. But the information only guides action. If you think of a new way to manipulate or use your property that is useful to you but you in no wise gain ownership of the information itself. Human action is use of scarce means to achieve ends, where the means selected and the manner in which they are employed, is guided by ideas or information. The means used are scarce and thus have to be owned by the actor in order to use these means; but it makes no sense, and there is no need, for the ideas that guide his actions to be “owned” by him–only I can use my eggs and bowl to make a cake, so I need to own these means; but I am not prevented from making my cake if a thousand other people simultaneously use the same recipe to make their own cakes.

I discuss all this in my various IP writings at https://www.stephankinsella.com/publications/#IP; see also Locke, Smith, Marx and the Labor Theory of Value http://blog.mises.org/13064/lock-smith-marx-and-the-labor-theory-of-value/ and What Libertarianism Is, also http://blog.mises.org/11042/rand-on-ip-owning-values-and-rearrangement-rights/

Current writes:

“I think that from a utilitarian standpoint though there is a good argument for it. If there is no way to be rewarded for the creation of software (for example) then less software will be created.”

The problem is this is always asserted by IP advocates but never proven. Forget for a moment that utilitarianism is methodologically flawed (value is ordinal not cardinal and not interpersonally comparable) and morally bankrupt (it’s immoral to steal from A to give to B even if A is richer, even if the money taken “means less” to A than it does to B).

IP advocates have no proof that the marginal benefit of IP systems is greater than the cost of those systems. In fact they have no proof that there is marginal benefit at all. Studies so far tend to be inconclusive or to conclude that innovation is on net diminished by IP law.

See my comments in this respect to David Friedman here:


see also :

http://blog.mises.org/10217/yet-another-study-finds-patents-do-not-encourage-innovation/ and Reducing the Cost of IP Law, and There’s No Such Thing as a Free Patent


Update: Carla Hesse, “The Rise of Intellectual Property, 700 B.C.-A.D. 2000: An Idea in the Balance,” Daedalus 131, no. 2 (Spring, 2002): 26–45, 26: “The concept of intellectual property—the idea that an idea can be owned—is a child of the European Enlightenment. It was only when people began to believe that knowledge came from the human mind working upon the senses—rather than through divine revelation, assisted by the study of ancient texts—that it became possible to imagine humans as creators, and hence owners, of new ideas rather than as mere transmitters of eternal verities.” (emphasis added)

{ 4 comments… add one }
  • Crosbie Fitch September 10, 2010, 9:49 am

    I can think of no case in which intellectual labour does not give rise to ownership of the resulting intellectual work. Perhaps you can give one or two clear examples to the contrary?

    I think we can agree that only physical objects can be created and owned – abstract concepts or patterns being outside the realms of physical possession (enclosure or occupation).

    So, if I create a poem in my mind I own it (its physical manifestation in my brain, but not the abstract pattern of it, that may also by some fluke coincidentally manifest as the same arrangement of words in someone else’s mind, at some point).

    If I set the poem down on my paper it becomes my property – I am its initial owner. I own the words of the poem and the paper it’s written upon (but again, not the abstract pattern of those words – I cannot exclude anyone else from arriving at that pattern independently). If I create it within my private space from which I have excluded others, I can continue to exclude others from the words and the paper.

    If I make and supply a copy of the poem to another then that makes two of us that possess and own it (we can both exclude others from its physical manifestation in our private possession).

    [I find it unethical to grant creators of intellectual work a reproduction monopoly, but nevertheless recognise intellectual works as able to constitute property]

Leave a Reply

© 2012-2024 StephanKinsella.com CC0 To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to material on this Site, unless indicated otherwise. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.

-- Copyright notice by Blog Copyright