Focusing on the recent U.S. Supreme Court decision, Eldred v. Ashcroft, which held that the U.S. Congress acted constitutionally when it extended copyright terms by twenty years, this article argues that copyright law in the United States for the most part responds to pragmatic imperatives. The article examines the theoretic/pragmatic distinction at an institutional level and argues that intellectual property lawmaking is at its most pragmatic in the legislative realm. While there is greater potential for theoretical concerns to influence intellectual property law-making in the judicial review context, in Eldred v. Ashcroft, the Court declined to allow grand intellectual property theories to dictate the freedom Congress enjoys to craft copyright legislation in the light of its rational view of the best (pragmatic) cultural and economic policies. The article concludes that in Eldred v. Ashcroft there can be detected an ontological approach to the “Copyright Clause” in the U.S. Constitution. The Court’s role is to ensure that Congress acts consistently with what copyright “is”; that is, a vehicle for motivating the “creative spark” of authorship. Congress has relatively free rein to determine what copyright should “do”. Moreover, any limitations on what copyright is meant to achieve are certainly not to be determined by theoretical concerns. Even the Court’s ontological approach to copyright law should be regarded as “modest,” however, given the Court’s general deference to the policy and cultural choices legislators make in the copyright field.

This article emanates from a Symposium hosted by Professor Margaret Ann Wilkinson and sponsored by the University of Western Ontario Law School and Centre for Innovation Law and Policy. The Symposium and the resulting articles aim to explore the theoretical dimensions of intellectual property law. This article argues, in contrast to the learned scholarship of my co-panellist, that theorising about intellectual property law is an innately political act that implements a pragmatic moment fueled by economic, social and cultural factors.

In the most general terms, this article focuses on the tension between competing justifications of intellectual property. Section I examines the nature and definition of economic pragmatism and argues that, while economic pragmatism comes in many flavors, each is either unstable or self-defeating. Section II advances the view that Anglo-American systems of intellectual property have both theoretical and pragmatic features. In Section III a sketch of a theory is offered--a theory that may limit applications of economic pragmatism and provide the foundation for copyright, patent, and trade secret institutions. To be justified--to warrant coercion on a worldwide scale--systems of intellectual property should be grounded in theory. Intellectual property rights are, in essence, no different than our rights to life, liberty, and tangible property. Intellectual property rights are neither pure social constructions nor bargains without foundations.

The traditional philosophical justifications for copyright policy fail to account for current expansionary trends. The proprietary logic of contemporary copyright policies is justified on neither utilitarian nor rights-based grounds. Instead, copyright developments are located within the broader framework of commodification and the logic of capital itself. Since copyright law has been outpaced by a technology that undermines both the legal framework and the underlying economic theory on which it is based, a critical theoretical framework rooted in political economy is needed to harmonize the use and dissemination of information with the developing productive forces in society. Central to this framework is the contradiction between use-value and exchange-value, which is inherent in every commodity. This tension, which is particularly acute in the case of the information commodity, becomes sharper with the use of new technologically enabled exclusion mechanisms, as well as with various policy initiatives that seek to expand the duration, scope, and intensity of the copyright monopoly. Reconceptualizing copyright theory through the lens of critical political economy will help raise issues that are often overlooked in the current policy environment, and should decrease the acceptance of traditional justifications without considering all of the policy alternatives.

Legal positivism is often described as the view that there is no necessary relationship between law and moral values. Such an understanding of positivism, this essay argues, is both unfruitful and far removed from the concerns of the figure most often associated with the origins of the positivist tradition, Thomas Hobbes. For Hobbes, legal positivism represented a decisive break with the intellectual tradition of common law scholarship which could no longer provide a satisfactory account of political authority. Positivism began, therefore, as an explanation of the basis of law’s authority within wider theories of social order: legal rules came to be seen as possessing authority not as the specific outcomes of broader moral precepts, but because they represent definitive, posited solutions to the problems of collective living. Analytical positivism, by contrast, centres upon the possibility of descriptive neutrality: an essential property of law, it is felt, is that ascertainment of its content does not necessarily depend upon moral assessments of the purpose of value of legal rules. Such an understanding, it is contended, is only very indirectly related to the traditional concerns of the legal philosopher, and hence marginal to a rich and detailed view of law’s nature. This essay traces the developments which led to the narrowly analytical view of legal positivism, and argues that positivism is much better understood as a series of peculiarly potent reflections on the rule of law: Hobbes’s answers to the questions of social order and the authority of law are often highly unsatisfactory; but it is his questions, rather than those of the modern positivists, which are most worth asking, and which should drive the legal philosopher.

How can one explain the normative outcome of the initial law-creating practices without any reference to some pre-existing natural laws “guaranteing” the lawgiver’s enterprise? The challenge which the rejection of the classical natural law model represents amounts to explaining the normative dimension of law despite the arbitrariness of the social practices from which it stems. Montaigne gave both an exemplary formulation and a peculiar solution to that question: in order to reconstruct the authority of law despite the “dangerous arbitrariness” from which it flows, Montaigne decides to avoid any inquiry regarding the original law-creating practices by positing a “law of pure obedience”.

Unlike those who read Fish as declaring that free speech is an illusion or incoherent, I argue that Fish provides a superior explanation of what makes free speech possible, and a more insightful description of what judges are doing when they decide cases under laws which protect it. In this paper I first identify the central philosophical commitment from which Fish derives most of his controversial positions. Next, I demonstrate how his position on free speech in particular flows from this central philosophical commitment. Finally, in the main section of the paper, I consider three serious objections to Fish’s analysis of free speech, and consider how Fish might respond to them. I seek to defend Fish's denial that the relationship between freedom and constraint is one of simple opposition; rather he claims that constraint is the precondition for freedom. He therefore sees all speech as made under conditions of constraint. He also sees a commitment to censoring some speech as inherently contained within any commitment to freedom of speech, and so toleration of all viewpoints is impossible. He denies that any free speech principle can be neutral regarding viewpoints, and he denies that any "free market of ideas" is without bias and exclusions. He therefore rejects the accounts given by American courts deciding cases under the First Amendment which stress a fidelity to neutral principle. Since there are no such principles in existence, such courts are really doing one of two things. Either they are pragmatically advancing a partisan agenda, and constraining some speech in a way which is obfuscated, or their false belief in the existence of neutral principles paralyses them in the face of danger and prevents them from performing this pragmatic exercise.

Most common law jurisdictions require mistakes about self-defence to be reasonable. But there is a lively debate about whether reasonably mistaken self-defence should be regarded as excused or justified. On one view, reasonably mistaken self-defence is not justified but excused because the conduct is, all things considered, wrongful; on another view, reasonably mistaken self-defence is justified because the reasonable appearance of an attack gives one a right to respond. This paper argues in favour of the second view. When viewed through the lens of cases involving the defence of third parties, the first view leads to counter-intuitive results, and that the source of these results is the effort to characterize mistaken self-defence through conceptual rather than normative argument. Moreover, the second view is more compatible with both the blame-assigning and conduct-guiding aspects of criminal law.

This is a Critical Notice of two books: Evaluation and Legal Theory by Julie Dickson and Law as a Social Institution by Hamish Ross, both published by Hart.