Justice and Anarchism.—IV.
Passing over the right-of-property corollary, we come to the chapter dealing with patent and copyright. The subject has recently been treated in these columns so fully and exhaustively that no need of further argument can be felt by those interested in it. Mr. Spencer’s defence of property in ideas in the present work is not much stronger than in Social Statics, and his position is not much more tenable. I agree with him (as the reader is aware) that,
as a deduction from the fundamental principle of justice, copyright cannot be questioned with any show of reason; but in this matter I am not entitled to speak for the Anarchistic school, since Mr. Tucker and other Anarchists claim to find in equal liberty a warrant for denying property in ideas. What, in my view, is Mr. Spencer’s grave logical error will be found in his justification of the restriction of the right to property in ideas. Reiterating the argument advanced in Social Statics, he says:
It is a truth made familiar by modern experience that discoveries and inventions, while in part results of individual genius, are in part results of pre-existing ideas and appliances. One of the implications, also made familiar by modern experience, is that about the period when one man makes a discovery or invents a machine, some other man, possessed of similar knowledge and prompted by a like imagination, is on the way to the same discovery or invention; and that within a moderate period this discovery or invention is tolerably certain to be made elsewhere,—possibly by more than one. A long-continued exclusive use of his invention would therefore be inconsistent with other equitable claims likely to arise; and hence there is need for a limitation of the period during which he may rightfully receive protection. For my part, I utterly fail to perceive the propriety of limiting in advance the originator’s right to his product. Property in ideas once granted, the right to exclusive use of his idea by the author cannot rightly be abridged. Theoretically, the claim of a subsequently-appearing competitor cannot invalidate or affect in the slightest degree the title of the first author. Each is entitled to the exclusive use of his own product, each has the right to property in his idea. Practically their claims conflict, and they may be constrained to enter into some agreement with respect to their relation to the general public. Both parties to the contract naturally suffer a certain limitation of the practical right of exclusive use, though not of the abstract right. Whatever the dictates of expediency, there can be no doubt that, so far as the principle of equal liberty is concerned, the decision must be between perpetual and exclusive right of property in ideas (the right of each author to his idea), and absolute communism in the use and enjoyment of incorporeal property. Practical difficulties may necessitate such a compromise such as is favored by those who desire to insure proper reward to the author for his labor and risk; but the compromise cannot be directly drawn from the principle of equal liberty.
The remaining corollaries drawn by Mr. Spencer do not seem to me to call for any especial comment, qualification, or criticism. I may conclude my review of Justice by a few random notes on various points scattered through its pages.
So anxious is Mr. Spencer to convince the reader that there is an abundance of induction to support the formula of justice that he is misled into introducing one or two pieces of evidence which, on examination, will be found to tell against him rather than in his favor, thus laying himself open to a charge of unfairness as well as superficiality. Observe, for instance, how political economy is made by Mr. Spencer to furnish inductive verification of the principle of equal liberty. In the first place, we learn that political economy supports the law of justice by teaching that
meddling with commerce by prohibitions and bounties are detrimental as well as by insisting that
speculators should be allowed to operate on the food-markets as they see well. Alas, Mr. Spencer’s wish is father to the thought. Political economy could with more propriety be described as approving of bounties and prohibitions, and as violently condemning speculators in staple products. The real truth is that political economy cannot fairly be cited on either side; and as to political economists, while they are hopelessly divided, the preponderance of opinion is against the position upheld by Mr. Spencer. In the second place, Mr. Spencer informs us that
one of the settled conclusions of political economy is that wages and prices cannot be artificially regulated with advantage. Even this is unfortunately not altogether correct. The old school did regard this as a settled conclusion, but the tendencies of the
advanced economists are so socialistic that little opposition to government regulation of wages and prices is to be expected from them.
On other questions concludes Mr. Spencer,
such as the hurtfulness of tamperings with banking, the futility of endeavors to benefit one occupation at the expense of others, political economy reaches conclusions which ethics independently deduces. As to the last specification few economists indeed can be found on the right side, while the statement with regard to tamperings with banking is good enough for a joke. Here Mr. Spencer rises to a high pitch of unconscious humor. Why, the truth is that almost all the recognized economists acquiesce in the present policy of our governments and are wholly innocent of any appreciation or partiality for freedom in banking.
Again: while Mr. Spencer enforces the contention that the warrant for what are called rights is not derived from legality, but that, conversely, the law derives its warrant from them, he seeks to strengthen his position by pointing out that the corollaries which he draws from equal liberty
one and all coincide with ordinary ethical conceptions and also correspond with legal enactments. That such inductive support of the abstract formula of justice is valuable, is not denied. But Mr. Spencer makes a statement which it is easy to disprove, and it is not wise to expose one’s self to attack and to weak a strong case by minor inaccuracies. It is far from true that the corollaries from equal liberty one and all correspond with legal enactments. Both in England and in this country there are laws against combinations of a legitimate character and laws against inoffensive acts. Tariff laws, banking monopoly laws, laws against gambling, and others too numerous to mention, show how little legality corresponds with justice. In fact two-thirds of the legislation of democratic countries will be found to be wrong. And as to current ethical conceptions, it needs but to recall the irrational opposition of moralists to lotteries, which they wish to see suppressed by law, to realize their confusion of thought. The ordinary moralist is never satisfied with justice. On the one hand he demands generosity, and on the other he justifies unmistakable aggression. The chaotic state of current ethical conceptions is sufficiently well known, and Mr. Spencer’s averment is amazingly incorrect.
In the remarkable chapter dealing with the upholders of political empiricism who propose to be guided by
the merits of the case and ridicule the faith in high general principles, Mr. Spencer utters a remark which seems to warrant the inference that he considers boycotting unjustifiable. He speaks of the ill-judged sympathy which led the public and police to tolerate the
violence of the London dockers during their late strike, and points out the direct and indirect consequences of their
successful use of assaulting, bullying, and boycotting. It is difficult to believe that even Mr. Spencer glides into the common error of considering boycotting an infringement upon equal liberty, and yet his censure and his lumping together of
assaulting, bullying, and boycotting are indicative of such an opinion. Now it certainly requires no formal syllogism to demonstrate that boycotting is entirely legitimate; and even bullying is not necessarily wrong. We have a right to threaten what we have a right to execute. We may not threaten to kill or to assault, but we may threaten to boycott.
It is a pleasure to record that Mr. Spencer has no sympathy with those who would restrain utterances which pass the limit of what the generality of men call decency or which are calculated to encourage sexual immorality.
In presence of the multitudinous differences of opinion found even among civilized peoples, it seems scarcely reasonable to take for granted that we alone are above criticism in our conceptions and practices, and unless we do this, restraints on free speech concerning the relations of the sexes may possibly be hindrances to something better and higher.
This article is part of a debate: Property in Ideas.
- « A. E. Porter & Editor Liberty, A Middle Course (August 8, 1891)
- This is the last instalment.