As I note in my What Libertarianism Is, a property right is simply the legally recognized exclusive right to control a scarce resource. The question is always: who owns a particular, potentially contestable, scarce (rivalrous) resource?1
The way the great legal systems of the world—e.g. the common law and civil law (Roman law, continental law)—deal with this issue is consonant with this perspective. As civil-law Professor Yiannopoulos explains:
Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property… [Property rights] confer a direct and immediate authority over a thing. ( (A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2 (first emphasis in original; remaining emphasis added). ))
The Louisiana Civil Code, at Art. 477, provides that “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.”
The practical nature of the law results in its rules dovetailing with libertarian/propertarian rules of justice. But the common law and civil law are not perfectly libertarian.2 They have to deal with arbitrary and unjust legislated (statutory) schemes: rights decreed by the legislature out of whole cloth. This leads to complications and absurdities. For example, in the civil law, as I explain in Against Intellectual Property, the term “things” is a broad civil-law concept that refers to all types of items, whether corporeal or incorporeal, movable or immovable. As specified in the Louisiana Civil Code, Art. 448: “Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables.” So every “thing” has to be classified as either a movable, or an immovable. The concepts of immovable and movable arose because economic goods are either land (immovables; see Art. 462), or some more “movable” scarce resource (Arts. 471, 475). It makes practical sense to analytically separate these types of economic goods, since legal rules naturally treat them somewhat differently, because land has a unique and “non-fungible” aspect (e.g. its location) that movable items do not share.
But the positive law arbitrarily introduces property rights in things that are not economics (scarce, rivalrous) goods, and the legal system must account for and classify this. So the distinction between “corporeal” and “incorporeal” “things” arises:
Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.
Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property. [Art. 461; see also Arts. 471, 473, 475]3
So the fundamental purpose of law is the same as that of property rights: to allocate scarce resources to some identifiable owner so that these scarce resources may be employed peacefully and productively (by the owner) as a means of action. When the legislature starts arbitrarily decreeing special positive rights, like patent and copyright, the law must not only have a concept for “corporeal” and “incorporeal”—it must now specify whether these incorporeal rights are movable or immovable. Of course this makes no sense whatsoever; knowledge, ideas, patterns of information, inventions, etc., even legal rights in these things like patents and copyrights, have no location; they have no body; they are incorporeal. So how can they be immovable or movable? How can an idea be considered movable? Or immovable? The notion is nonsense. The reason it is nonsense is because the law is trying to use conflict-avoidance mechanisms (property rights) whose natural purposes is to assign rights in scarce resources, for nonscarce resources like patterns of information. This creates a disconnect, an absurdity in the law.
Nonetheless, the law must have its answer. It has to answer the question of whether incorporeal “things” are immovable, or movable.
The answer is arbitrary, but found in the way the code defines immovables and movables. Immovables are “Tracts of land, with their component parts.” (Art. 462). IP rights are not tracts or land or components thereof, so they cannot be immovables. And Art. 475 specifies: “All things, corporeal or incorporeal, that the law does not consider as immovables, are movables.” So if it’s a “thing,” and not an immovable, it has to be a movable. Ergo, IP rights—patent rights in inventions, copyright in original creative works—are “incorporeal movables.” Ideas, it turns out, are movable.
[Update: IP rights can also be legally classified as non-consensual negative easements, or servitudes. See Intellectual Property Rights as Negative Servitudes (June 23, 2011)]
Isn’t this good to know? Whew!
And who really thinks the idea of property rights in nonscarce goods is coherent?
- See KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory. Also Hans-Hermann Hoppe, “Of Private, Common, and Public Property and the Rationale for Total Privatization”, sec. I, A Theory of Socialism and Capitalism, ch. 2, and The Great Fiction, chs. 2–4 et pass. [↩]
- See my “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010) . [↩]
- See also my Louisiana Civil Law Dictionary . [↩]