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  • Adam Mossoff (a1)

The labor theory of value is fundamental to John Locke’s justification for property rights, but Edwin Hettinger argues in a famous article, “Justifying Intellectual Property,” that it fails to justify intellectual property rights. Hettinger believes that the labor theory of value cannot justify a right to the full economic value in an invention or book, because the creator’s physical labor contributes only proportionally to this socially-created market value. Robert Nozick, G. A. Cohen, and other philosophers similarly dismiss the labor theory of value as illogical or incoherent. But these philosophers redefine Locke’s concepts of labor and value into physical and economic terms, which is more akin to Karl Marx’s labor theory of economic value. The principle of interpretative charity demands reconsideration of Locke’s labor theory of value in its own terms and within the full context of his natural law ethical theory, especially in considering how Locke himself justifies intellectual property rights. This article thus analyzes oft-neglected portions of the text of the Second Treatise and integrates Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In this context, Locke’s concept of labor means production, which has intellectual as well as physical characteristics, and his concept of value means that which is useful in the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. This not only disabuses modern scholars of the absurdities they impose on Locke, it also explains why Locke says that inventions exemplify his labor-based property theory and why he argues for property rights in writings (copyrights), arguments that seem to have been lost on his critics in intellectual property theory and beyond.

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1 References to Locke's writings will be made in the main text using the following convention: “TT II.28” refers to Locke John, Two Treatises of Government, Laslett Peter ed. (Cambridge: Cambridge University Press, student ed. 1988), Second Treatise, section 28. “ECHU II.28.6” refers to Locke John, An Essay Concerning Human Understanding, ed. Nidditch Peter H. (Oxford: Clarendon Press, 1979), book 2, chapter 2, section 6. “STCE 185–86” refers to Locke John, Some Thoughts Concerning Education, Grant Ruth W. and Tarcoy Nathan eds. (Indiana: Hackett Publishing Co., 1996), sections 185–86. “QCLN 153” refers to Locke John, Questions Concerning the Law of Nature, trans. and ed. Horwitz Robert, Clay Jenny Straus, & Clay Diskin (Ithaca: Cornell University Press, 1990), 153.

2 See Epstein Richard A., “Liberty versus Property: Cracks in the Foundation,” San Diego Law Review 42, no. 1 (2005): 1415; Weinreb Lloyd, “Custom, Law and Public Policy: The INS Case as an Example of Intellectual Property,” Virginia Law Review 78, no. 1 (1992): 144.

3 Dreyfuss Rochelle Cooper, “Expressive Genericity: Trademarks as Language in the Pepsi Generation,” Notre Dame Law Review 65, no. 3 (1990): 405. Given this problem with defining limits, Larry Lessig writes that “the ‘if value, then right’ theory of creative property has never been America's theory of creative property. It has never taken hold within our law.” Lessig Lawrence, Free Culture (New York: The Penguin Press, 2004): 19.

4 I discuss this critique among realist legal scholars in Mossoff Adam, “The Use and Abuse of Intellectual Property at the Birth of the Administrative State,” University of Pennsylvania Law Review 157, no. 6 (2009): 2015–18.

5 Some examples of recent philosophical scholarship addressing how Locke's property theory applies to intellectual property rights includes Peterson Jonathan, “Lockean Property and Literary Works,” Legal Theory 14, no. 1 (2008): 257–80; Seana Valetine Shiffrin, “Lockean Arguments for Private Intellectual Property,” in Munzer Stephen R., ed., New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2001): 138–67; Moore Adam, “A Lockean Theory of Intellectual Property,” Hamline Law Review, 21, no. 1 (1997): 65108.

6 Williams Andrew, “Cohen on Locke, Land and Labour,” Political Studies 40, no. 1 (1992): 51. In Stephen Munzer's A Theory of Property, for instance, the labor theory of value receives no attention at all in his chapter on “Labor and desert.” Munzer Stephen R., A Theory of Property (Cambridge: Cambridge University Press, 1990): 254–91. Munzer writes that his argument for property “has little in common with Locke's views about gaining property rights by mixing one's labor with unowned things…. It is, however, somewhat related to his overall thought that since no one would labor without expecting some benefit, it would be unfair to let the idle take the benefit of the laborer's pains.” (Ibid., 256, footnote 1). If these benefits are the values created by a laborer, then it would seem that some type of labor theory of value remains a crucial premise of his property theory.

7 Hettinger Edwin C., “Justifying Intellectual Property,” Philosophy & Public Affairs 18, no. 1 (1989): 3640.

8 Mossoff, “Use and Abuse of Intellectual Property at the Birth of Administrative State,” 2048.

9 This is based on a search, performed on October 10, 2011, of all of the law journals in the Westlaw legal database.

10 For some examples of this debate among contemporary philosophers, see Wright Darryl F., “Evaluative Concepts and Objective Values: Rand on Moral Objectivity,” Social Philosophy & Policy 25, no. 1 (2008): 149–81; Gauthier David, Morals by Agreement (Oxford: Clarendon Press, 1986): 2159; Mackie J. L., Ethics: Inventing Right and Wrong (New York: Penguin Books, 1977): 1563.

11 Mossoff, “The Use and Abuse of Intellectual Property at the Birth of the Administrative State,” 2001–2050; Mossoff Adam, “Who Cares What Thomas Jefferson Thought About Patents? Revaluating the Patent ‘Privilege’ in its Historical Context,” Cornell Law Review 92 (2007): 9531012; Mossoff Adam, “Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause,” Boston University Law Review 87, no. 3 (2007): 689724; Mossoff Adam, “Rethinking the Development of Patents: An Intellectual History,” Hastings Law Journal 52, no. 6 (2001): 12551322.

12 Mossoff Adam, “Locke's Labor Lost,” The University of Chicago Law School Roundtable 9, no. 1 (2002): 155–64.

13 Mossoff, “The Use and Abuse of Intellectual Property at the Birth of the Administrative State,” 2001–2050.

14 Hettinger, “Justifying Intellectual Property,” 36, 51.

15 Ibid., 38.

16 Ibid. (emphasis added).

17 Ibid., 38–39.

18 Nozick Robert, Anarchy, State and Utopia (New York: Basic Books, Inc., 1974): 175.

19 I have criticized this egregious strawman attack on Locke's “mixing labor” argument in Mossoff, “Locke's Labor Lost.”

20 Nozick, Anarchy, State, and Utopia, 175.

21 See George Henry, Progress and Poverty (New York: D. Appleton & Co., 1886). The book was first published in 1879.

22 If there was any doubt about this assumption, Nozick later confirms it when he refers to “the crumbling of the labor theory of value” in his discussion of the failure of Marxist labor-exploitation economics. Nozick, Anarchy, State, and Utopia, 253–60.

23 Cohen writes that the Marxist labor theory of value is a theory about economic value—what Marx and economists call “exchange-value”—but not so for Locke's labor theory of value, which claims only that “labour is responsible for virtually all of the use-value.” See Cohen G. A., Self-Ownership, Freedom and Equality (Cambridge: Cambridge University Press, 1995), 178. He further explains: {fn_ext}Locke's premiss is often described as a rough statement of what, since Marx, has been known as the labour theory of value. That is misleading, since the value which Locke says is (nearly all) due to labour is not the value Marx says labour created. Locke's topic is use-value, not exchange-value.

Cohen, Self-Ownership, Freedom and Equality, 178. For Marx's discussion of the distinction between use-value and exchange-value, see Karl Marx, Das Kapital, vol. 1, in Tucker Robert C., ed., The Marx-Engels Reader, 2d ed. (New York: W.W. Norton & Co., 1978): 302–29.

24 Cohen, Self-Ownership, Freedom and Equality, 182–88.

25 Waldon Jeremy, The Right to Private Property (Oxford: Clarendon Press, 1988): 192.

26 Ibid., 193.

27 Ibid., 321.

28 See, for example, Boyle James, The Public Domain: Enclosing the Commons of the Mind (New Haven: Yale University Press, 2008). Boyle's reference to the mind as a “commons” is deliberate; for, as Locke argues, in the beginning “God … hath given the World to Men in common …. and no body has originally a private Dominion exclusive of the rest of Mankind.” (II.26) Justin Hughes similarly writes, “It requires some leap of faith to say that ideas come from a ‘common’ in the Lockean sense of the word. Yet it does not take an unrehabilitated Platonist to think that the ‘field of ideas’ bears a great similarity to a common.” Hughes Justin, “The Philosophy of Intellectual Property,” Georgetown Law Journal 77 (1988): 315. Among philosophers, see, for example, Tavani Herman T., “Locke, Intellectual Property Rights, and the Information Commons,” Ethics and Information Technology 7, no. 2 (2005): 8797.

29 Waldron Jeremy, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” Chicago-Kent Law Review 68 (1992): 841–87.

30 Landes William and Posner Richard, The Economic Structure of Intellectual Property Law (Cambridge: Harvard Univ. Press, 2003): 379.

31 Feist Publications v. Rural Telephone Services, 499 U.S. 340, 352–54 (1991).

32 Port Kenneth L., “The ‘Unnatural’ Expansion of Trademark Rights: Is a Federal Dilution Statute Necessary?Seton Hall Legislative Journal 18 (1994): 485. For other references to Feist as representing a rejection of Locke's labor theory or to the “sweat of brow” doctrine as representing (Lockean) labor theory, see Nelson John William, “The Virtual Property Problem: What Property Rights in Virtual Resources Might Look Like, How They Might Work, and Why They Are a Bad Idea,” McGeorge Law Review 41 (2010): 292; Brauneis Robert, “The Transformation of Originality in the Progressive-Era Debate Over Copyright in News,” Cardozo Arts & Entertainment Law Journal 27 (2009): 328–29; Ghosh Shubha, “Copyright as Privatization: The Case of Model Codes,” Tulane Law Review 78 (2004): 722–23; Gordon Wendy J., “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, Yale Law Journal 102 (1993): 1540, footnote 37. For an example of a legal scholar claiming that focusing on intellectual labor and creativity allegedly conflicts with the historical uses of labor theory in copyright, see Ginsburg Jane, “Creation and Commercial Value: Copyright Protection of Works of Information,” Columbia Law Review 90 (1990): 1875–81.

33 Feist Publications, 499 U.S. at 346 (quoting The Trade-Mark Cases, 100 U.S. 82, 94 (1879)).

34 See Mossoff Adam, “Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 9531012.

35 Waldron believes that the “mixing labor” argument is nonsensical and thus he thinks that the labor theory of value should be conceptually separated from it. See Waldron, The Right to Private Property, 193. As I noted earlier, this is based on Waldron's misunderstanding of the “mixing labor” argument, see Mossoff, “Locke's Labor Lost.”

36 Mossoff, “Locke's Labor Lost,” 159–61. The same arguments are made by Buckle Stephen, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991), 151; Simmons A. John, “Maker's Rights,” Journal of Ethics 2, no. 3 (1998): 210; Russell Daniel, “Locke on Land and Labor,” Philosophical Studies 117 (2004): 318.

37 See Goldie Mark, ed., John Locke: Political Essays (Cambridge: Cambridge University Press, 1997): 326–28. Here, for instance, Locke writes that “if the labour of the world were rightly directed and distributed there would be more knowledge, peace, health and plenty in it than now there is. And mankind be much more happy than now it is.” Ibid., 328.

38 See, for example, Nozick, Anarchy, State, and Utopia, 174–78; Harris J. W., “Who Owns My Body?Oxford Journal of Legal Studies 16, no. 1 (1996): 6869. Machan Tibor R., “Self-Ownership and the Lockean Proviso,” Philosophy and the Social Sciences 39, no. 1 (2009): 9398. While criticizing Nozick's use of the idea of self-ownership, which Nozick claims to take from Locke, Cohen maintains that “those who stand to the left of Nozick … might relax their opposition to the idea of self-ownership….” Cohen, Self-Ownership, Freedom and Equality, 71.

39 See Tully James, A Discourse on Property: John Locke and his Adversaries (Cambridge: Cambridge University Press, 1980), 62–63, 105–17.

40 John Simmons rightly criticizes the “workmanship model,” first developed by Tully in A Discourse on Property, as lacking support in either the text or the analytical content of Locke's property theory. See Simmons, “Maker's Rights,” 197–218.

41 Earlier in the First Treatise, Locke writes that it is “the Priviledge of Man alone to act more contrary to Nature than the Wild and Untamed part of the Creation …. and seem to forget that general Rule which Nature teaches all things of self Preservation, and the Preservation of their Young.” (TT I.56; see also I.92) In the Second Treatise, Locke repeatedly refers to self-preservation as the primary moral duty, see, for example, TT II.6, II.19, II.35 and II.129, which should always be understood as a duty within his natural law ethical theory.

42 These two sources of obligation—God (divine law) and Reason (human nature and natural law)—are ubiquitous in Locke's productive labor argument in his property theory. In section 35, for example, Locke writes that “The Law Man was under, was rather for appropriating. God commanded, and his Wants forced him to labour. … And hence subduing or cultivating the Earth, and having Dominion, we see are joyned together. The one gave Title to the other. So that god, by commanding to subdue, gave Authority so far to appropriate. And the Condition of Human Life, which requires Labour and Materials to work on, necessarily introduces private Possessions.” (TT II.35)

43 Buckle, Natural Law and the Theory of Property, 151.

44 This explains the spoilage and “enough and as good” provisos, which delimit in the state of nature the scope of the initial acquisition of a property right through productive labor. (TT II.27 and II.31) Unlike the labor theory of value, the nature and function of these two provisos are heavily debated in the literature today. This debate is beyond the scope of this essay, which focuses solely on the labor theory of value. Yet it is important to acknowledge these two additional premises within Locke's property theory, and it is my belief that they are consistent with the construction here of both productive labor and the labor theory of value, although this argument must be presented in another essay.

45 See Locke John, Questions Concerning the Law of Nature, trans. and ed. Horwitz Robert, Clay Jenny Straus & Clay Diskin (Ithaca: Cornell University Press, 1990). This posthumously published monograph comprises Locke's lecture notes as a professor of moral philosophy, and it is rife with citations, quotations and paraphrases of classical sources. Although there are differences here from Locke's more mature thought, the similarities are evident: {fn_ext}the law of nature is knowable by the light of nature. Since, in truth, the light of nature is the sole thing that directs us as we are about to enter the path of this life and that guides us …. it is fitting, not only to use this light as do animals for the necessities of life and to employ it to direct our steps, but to investigate also by a deeper inquiry what this light is and [to discover] its nature and its principle. Now inasmuch as this light of nature is not tradition (as has been shown elsewhere), nor any inner principle of action inscribed in our minds by nature, there remains nothing that can be called the light of nature except reason and sense. (Ibid., 153)

The essays by the translators and editors in this edition also do much to establish the classical influences, both explicit and implicit, in this work. For an excellent analysis of how Locke and the other modern natural rights philosophers were generally influenced by classical virtue ethics theory, see Claeys Eric R., “Virtue and Rights in American Property Law,” Cornell Law Review 94, no. 4 (2009): 889934. The natural rights philosophers generally embraced the classical philosophical ideal of the good as human flourishing. See Mossoff Adam, “What is Property? Putting the Pieces Back Together,” Arizona Law Review 45, no. 2 (2003): 371, footnote 166.

46 Although Cicero self-identified as a skeptic, de Officiis is based explicitly on the moral teachings of stoicism. See Griffin Miriam, “Introduction,” On Duties (Cambridge: Cambridge University Press, 1991): xixxx. In Locke's shorter and lesser known essay, Some Thoughts Concerning Reading and Study for a Gentleman, he again identifies only two books in his discussion of the “study of morality”: the New Testament and Cicero's de Officiis. See Goldie Mark, ed., John Locke: Political Essays (Cambridge: Cambridge University Press, 1997), 351.

47 Cicero, On Duties, 67.

48 Ibid., 67.

49 Ibid., 68.

50 Pufendorf approvingly quotes this line from Cicero in On the Law of Nature and Nations. See Pufendorf Samuel, De Jure Naturae et Gentium, Oldfather C. H. and Oldfather W. A., trans. (Oxford: Clarendon Press, 1934), 195. As I noted, Locke recommends Pufendorf's treatise as necessary for a proper education in political theory.

51 Thank you to Eric Claeys for bringing this metaphor in the Essay to my attention. Locke's use of metaphors in the Second Treatise is not unusual, as he uses many metaphors throughout his philosophical writings. See West Tom, “The Ground of Locke's Law of Nature,” Social Philosophy & Policy, vol. 29, no. 2 (2012): Section IV.

52 The full sentence in the First Treatise is: “God makes [man] in his own Image after his own Likeness, makes him an intellectual Creature, and so capable of Dominion.” This is important, because it also shows again how the “workmanship model” misconstrues the role of God in Locke's argument for property. Locke thinks that God is essential for property, not as a role model by which man mimics his own actions, but because God made man a rational animal capable of learning both the divine law and the natural law, and which oblige him respectively to engage in value-creating, productive labor to sustain a flourishing human life.

53 de Beer E. S., ed., The Correspondence of John Locke, vol. 6 (Oxford: Clarendon Press, 1976), 294–95.

54 See generally Mossoff, “Rethinking the Development of Patents,” 1255–1322; Banner Stuart, American Property: A History of How, Why, and What We Own (Cambridge: Harvard University Press, 2011), 2344.

55 See Davoll v. Brown, 7 F. Cas. 197, 199 (C.C.D. Mass. 1845) (No. 3,662).

56 In Davoll v. Brown, Circuit Justice Levi Woodbury explicitly invokes Locke's value-creating, productive labor justification for property rights in inventions, writing that “we protect intellectual property, the labors of the mind, productions and interests as much a man's own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.” Davoll, 7 F. Cas. at 199. Moreover, Chancellor James Kent, a famous antebellum jurist and legal scholar, classified both copyrights and patents in his 1826 treatise, Commentaries on American Law, in a section entitled, “Original Acquisition by Intellectual Labor.” There, he argued for the Lockean principle that “It is just that [authors and inventors] should enjoy the pecuniary profits resulting from mental as well as bodily labor.” Kent James, Commentaries on American Law, vol. 2 (Little, Brown & Co., 12th edition, 1873): 474. For further discussion of the ubiquitous Lockean justifications for intellectual property rights, especially patents, in the early American Republic, see Mossoff, “The Use and Abuse of Intellectual Property at the Birth of the Administrative State,” 2022–24; Mossoff, “Who Cares What Thomas Jefferson Thought About Patents?,” 990–98; Mossoff, “Patents as Constitutional Private Property,” 705–7 & 718–19.

57 I discuss this conventional wisdom in Mossoff, “The Use and Abuse of IP at the Birth of the Administrative State,” 2047.

58 This 1695 memorandum was recently brought to light by Hughes Justin, “Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson,” Southern California Law Review, vol. 79 (2006): 1012. In his earlier work, though, Hughes embraces the conventional wisdom that Locke's labor theory of value refers to only physical labor and “social value” (i.e., money). See Hughes, “The Philosophy of Intellectual Property,” 299–310.

59 Goldie Mark, ed., John Locke: Political Essays (Cambridge: Cambridge University Press, 1997), 330–38.

60 Goldie, John Locke: Political Essays, 338.

61 There is an ambiguity in the Latin dominion, which also refers to political authority (see, for example, TT II.4, II.90 II.120), but Locke's usage of this term in the context of discussing property rights is consistent with other modern natural law philosophers who also referred to property as dominion. (TT I.29, I.39, II.26, II.35) This explains William Blackstone's reference to “the rights of dominion, or property,” in discussing the views of “writers on natural law.” It also explains his famous definition of “the right of property; or the sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Blackstone William, Commentaries on the Laws of England, vol. 2 (Chicago: The University of Chicago Press, 1979): 12.

62 See Adam Mossoff, “Rethinking the Development of Patents,” 1255–1322.

63 Ayn Rand also identifies this as the concept of “intrinsic value,” using the same terminology that Locke uses in referring to his own concept of value (TT II.37, II.43), but she differentiates Locke's concept of value from her “objective” concept of value, which she defines as “that which one acts to gain and/or keep.” See Rand Ayn, “The Objectivist Ethics,” Virtue of Selfishness (1964), 15. In other words, for Rand, values arise solely from the goal-directed actions that a living organism must engage in to preserve its life. There is no value until a living being takes the actions necessary to sustain itself, and then one-hundred percent of the value is directly attributable to the action of the living organism pursuing a specific purpose. See Smith Tara, “The Importance of the Subject to Objective Morality: Distinguishing Objective from Intrinsic Value,” Social Philosophy & Policy 25, no. 1 (2008) 126–48. For instance, many people believe that a parcel of fecund soil in the American Midwest is valuable and a parcel of desert in the American Southwest is not, but this is only because they assume an unstated premise that the purpose for the use of the two parcels is farming. If one changes the purpose, such as building semi-conducting silicon chips for computers, then the sand in the desert is extremely valuable and the fecund soil is not. The value is defined by the specific goal and then created by the specific action undertaken by a living organism in pursuing this goal in sustaining its life, such as the flourishing life of rational individual.

64 Marx, Das Kapital, vol. 1, 309.

65 Ibid., 303–05.

66 Ibid., 312.

67 Meek Ronald L., Studies in the Labor Theory of Value, 2d ed. (New York: Monthly Review Press, 1956): 157200. David Ramsay Steele writes that “The Marxian labor theory of value (LTV) is intended to explain the determination of prices under commodity production (this is occasionally denied, but see Steele 1986). In Marxian terminology, there can be no ‘value’ in post-capitalist society.” Steele David Ramsay, From Marx to Mises: Post-Capitalist Society and the Challenge of Economic Calculation (La Salle: Open Court Publishing Co., 1992), 127.

68 Marx, Das Kapital, vol. 1, 303–05, 322 (emphasis added). Marx explicitly and repeatedly argues that value is purely relational or social. See pp. 315–17, 321–23, 328.

69 Cohen, Self-Ownership, Freedom and Equality, 172–73.

70 Lemley Mark, “Property, Intellectual Property, and Free Riding,” Texas Law Review 83 (2005): 1057. Lemley is describing the conventional wisdom here, as he disagrees with this statement, but only because he disputes the assumption that intellectual property rights are justifiable on grounds of economic value.

71 Landes and Posner, The Economic Structure of Intellectual Property Law, 379.

* For comments on earlier drafts, thank you to the participants at a workshop at Cardozo Law School, the 2011 Annual Meeting of the Association for Law, Property and Society, the Property Colloquium at George Mason University School of Law, and the other contributors to this volume. For their thoroughgoing feedback and constructive criticism of earlier drafts, a special thank you to Eric R. Claeys, James E. Penner, C. Bradley Thompson, and the editors of Social Philosophy and Policy.

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