Is, Ought and Shall

(updated)

I recently directed some people to read the Wikipedia entry about intellectual property. This was a mistake; that webpage has been rewritten to be a webpage about the term “intellectual property” itself, rather than what the term describes. That particular webpage is just one instance of a general phenomenon which is this: in some communities, all discussion of what intellectual property is or should become is drowned out by shrill diversions on terminology, or at least proposed to be postponed for a few decades until signifier and signified are brought into a more agreeable relationship.

Well may Intellectual Property be as misnamed as the Holy Roman Empire, but that is not the question whether the term should be discarded, nor the question what standard of legal protection is desirable in the area described by the term, nor even the question whether the effect of this protection might be better achieved by some other system entirely. This much should be obvious, even to a casual reader of the rhetorically defaced Wikipedia article.

Why discussion of signifier and signified are conflated is simple enough: on a trivial level, people with these views are often uncritically repeating the arguments of Richard Stallman; so why does he make them and why are they so immune to critical reflection by his followers, who after all do not take as Gospel many of his other utterances? Whereas we must resist his false assertion that copyrights, patents and trademarks lack any common properties, it is certainly reasonable enough to say with Stallman that “intellectual property” is an undesirable term, connoting neither property as commonly understood nor necessarily anything “intellectual”, and conclude that the use of the term grants an undesirable rhetorical advantage to one particular side in the debate about what the law should be.

This alone wouldn’t account for the sheer obsessiveness with which the campaign against commonly accepted terminology is pursued. Stallman has conducted other semantic assaults on the English language, most notably on the way the word “free” is understood in application to software licensing, but in the case of that particular (ongoing) crusade, the lucky of object of attention was a word with two widely accepted meanings, only one of which was being understood in the relevant context; never was it seriously contended that users of free (gratuitous) had some hidden and positively dangerous agenda, moreover there was never an insistence on the effacement of the word itself. It is true enough to say that the way words are understood matters, if only marginally in some cases, in political debates. Change the accepted meaning of the word and you literally change the terms of the debate. This collective understanding influences, but does not constitute, political and legal reality.

At least, it shouldn’t. Or, shouldn’t be thought of as doing so. Unless …

I am reminded of a number of occasions where I have said what I thought the state of intellectual property law was in some jurisdiction or other, and have been met with outright hostility from people who conclude that I approve of this state of affairs, which is unlikely as I generally disagree with the particular intellectual property laws with which I am familiar. The conclusion that I nevertheless approve, or its opposite, can generally not be deduced from what I say, though the contrary conclusion might be inferred from my tone of voice! I expect I am not alone in this. I have known people to run shouting out of lecture theatres following some assertion that competition law in the UK was in some way not the way they wanted it to be. Why is it that an analysis of existing law can produce such extreme reactions?

What I surmise is going on is this: our protestor dislikes hearing facts about laws with which he disagrees. Unwelcome truths are commonplace, but need not induce him to impute any view to their bearer. When nevertheless they do so, what beliefs of the protestor could explain this? Is there some premise which when combined with “the speaker asserts that the law requires action X” yields the conclusion “the speaker approves of X”? That is, an argument which converts a factual assertion into a normative one? An is into an ought? We should be immediately suspicious of any means of deriving an ought proposition from an is proposition, but here we are asked to create one. And here it is: Law is a set of rules which say how people ought to behave. Therefore to say what the law is, is to say how people ought to behave; an is proposition about law is actually an ought proposition! Hence it is but a small step to deducing the normative views of anyone making any pronouncement about the law.

I believe this worldview arises from wish-fulfillment: it is just unpleasant to contemplate the reality that the rules one is expected to obey may be unjust, or even capable of being so, and it were much more agreeable if the prospect would just go away. There is no room here for an “unjust” law — why that would be no law at all, if law is how people ought to behave! Either the identity of law and ought is a tautology bereft of worthwhile consequences, or it is false, and the latter is preferable.

We should prefer the identity of laws with what I shall call shall-propositions, not ought-propositions. The law is what people shall do, not what they should do. This formulation avoids the conflation of is and ought, indeed, a shall-proposition has no truth-value to conflate. One may express opposition to, say, the sale of contaminated meat, in any of these three forms: “You do not sell contaminated meat”, “You should not sell contaminated meat”, “Do not sell contaminated meat”, and in all cases it is possible to object “No!”, but against only the first two may the objection “False!” be raised. With this view of law, it is perfectly reasonable to make statements as to what the law is or ought to be, independently of one another. It can be claimed “The 1968 Theft Act accidentally decriminalised making off without paying” without expressing a view as to whether this was a morally desirable outcome.

A debate about reforming any law is rendered almost impossible where there can be no distinction between analysis and approval. The same effect has regrettably been achieved by the terminological attack on “intellectual property”.

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