Law as a Social Force: Capitalism's Destruction of Lockean Views on Property

-- By AndrewHerink - 10 Feb 2008

Cohen argues that law is a social force. Extrapolating this thesis leads one to conclude that legal arguments are social forces as well. More specifically, I posit, legal reasoning changes in order to justify the base economic relations of society. In this paper, I show that the growth of capitalism mutated the traditional Lockean justification for property rights.

Early Anglo-American Cases: A Lockean Theory of Property

In pre-industrial Anglo-American law, courts employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” Again individual effort meant a property right.

The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property.

Capitalism Rises, and Lockean Notions Fall

Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, and not capitalists, should control the property they produce. Thus, as capitalism grew, judges had to tweak the Lockean argument in order to justify the status quo. In International News Service v. Associated Press (1918), the court held that the information AP acquired was given a property right because AP had “as the result of organization and the expenditure of labor, skill, and money” discovered the hot news. The AP court used wordplay to convert the traditional Lockean concept to a capitalist-friendly form. The justices still employed the word “labor,” but the term no longer represented individual effort. Instead the court defined “labor” as a resource (like skill and money) employed by a firm to conduct its activities.

AP emblematized a general trend. In Prest-O-Lite Co. v. Davis (1913), the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it for his own gain to the detriment and even destruction of [plaintiff’s] business.” As in AP, the court deemed the business (or its owner) the principal creator of the object and thus gave the property right to the capitalist, not the proletarian.

Further Derivations from the Lockean View

By putting a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the traditional Lockean notion of property. Such a utilitarian condition makes sense in light of capitalism, for it gives only “productive” types of effort protection. In Cable Vision, Inc. v. KUTV, Inc. (1964), the court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right when such a property right violates “the public interest.” Similarly, in RCA Mfg. Co. v. Whiteman (1940), the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court argued that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Predictably the opinion’s concept of the public benefit was heavily capitalistic: the court stated that products were protected, but ideas were generally not. Thus, as the 20th century elapsed, courts began to add a utilitarian qualification to the corporate, pseudo-Lockean property right.

The Next Step: Utility Yields Property

Logically, the next step in this slow descent is an abandonment of any form of Lockean property rights. Although a purely utility-based theory of property rights has not yet taken over Anglo-American courts, such a theory has become prevalent in academia. In 1967, at the beginning of the Law and Economics revolution, Harold Demsitz published an article in the American Economic Review. Here, he argued that “the emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only emerge when their social benefit outweighs their social detriment. This purely utilitarian theory of property rights is more advantageous to capitalism than its predecessors, for it eliminates the idea that productivity must, at times, step aside to preserve individual (or even corporate) rights.

This purely utilitarian view of property rights has begun to permeate Anglo-American courts. In a dissent in White v. Samsung Electronics America, Inc., Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the [television] viewer of her” the court was discouraging potential “future creators” of advertisements. Thus Kozinski noted that he would have refused granting the socially detrimental property right to plaintiff.

Conclusions

The above development conforms not only with Cohen’s view on the law; it aligns with Marxist theory. From a Marxist perspective, the law is simply another part of the superstructure that the capitalistic base creates. Perhaps another scholar should review law in communist countries to see if the base-superstructure theory applies as aptly there.

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