My Dearest Gentlefolk,
The lesser part of two months separates today's Monday Muse from our last conversation. I can provide no apology better than a footnote to the veritable mountain of paper standing astride my desk. The Muse, however, is meant to be a departure from the daily toll of sophistries pro and con. So I beg your leave, and press across the pages of legal history, to visit once again a familiar topic: Property.
Morris Cohen, Property and Sovereignty, 13 Cornell L.Q. 8, 10-12 (1927).
You may recall our visit with Felix Cohen, regarding "transcendental nonsense" in October (v.1 n.4). His father, Morris, brought a powerful analytical mind to bear upon the dynamics of property and contract prerogatives. His was a prominent voice in the movement that ultimately brought down the Supreme Court's view that the right to contract was a fundamental liberty protected by the Constitution. But his observations carry a broader resonance. For they suggest that property is and always has been a concept entirely separable from its "landed" origins. Property, as a fundamental right to exclude, is equally suited to protect the valued assets of women and men, whether they be authors, inventors, or landholders.
Nevertheless, one may wonder whether the link to medievalism is too strongly argued by Cohen? It would seem that the level of abstraction introduced by the mercantile economy (particularly in it's post-industrial form) is so great that it is virtually a category apart. Just as linguistic abstraction permits the emergence of "intelligence" of a sort impossible to simple biological systems, sophisticated electronic commerce may have generated an economic life incommensurable with the modal calculus of fealty and lordship.
On the other hand, it would be difficult to argue that more than a frightfully small fraction of the world's population enjoys a life of economic abstraction capable of glossing over our medieval moorings.
In Zimbabwe, we are presently witness to a disintegration of order that serves as a stark reminder of the role "law" normally plays in allocating "private" power over whole peoples. The abrogation of conventional property norms appears to be the only way that a desperately poor, and mostly black, population can see its way clear to a more equitable distribution of liberty. The political double-speak of Zimbabwe's current government should not blind us to the fact that the rule of law, understood as the rule of property, has ensured that the remnants of colonialism persisted virtually unchanged throughout the Rhodesian rebellion, from 1965 to 1979, and have survived intact well after independence in 1980.
The raw brutality of Zimbabwe's confrontation with western property norms may make us doubt that a sort of medievalism also resides at the core of intellectual property. It should not. What is intellectual property if not a principled system of assigning the right to demand tribute?
How far we have come to travel so near to home! Rome, England, and Jefferson's Yeomen farmers, mark our daily progress across the vast expanse of a "new economy." Like the vocabulary of set theory and differential calculus (itself a strange but essential aid in our traversal of the domain of quantum mechanics), the elaborate cult of medieval land-rights gives breath to our currency, and lends a strange melancholy to our dream of prosperous liberty.
David Robert Foss
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© 2000, 2001 David Robert Foss
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