Home > Journals > LAWREVIEW > Vol. 90 > No. 3 (2016)
I make three points in this Essay. First, that the idea of “faith-based IP” is misleading. The thrust of the “faith-based” critique is that (1) nonempirical reasoning is inherently suspect; (2) any theory that is not strictly empirical is based on fundamental commitments that are resistant to counterarguments, particularly empirically based counterarguments; and (3) as a consequence, nonempirically based theories of IP are beyond the pale of scholarly discourse, because those who advocate these theories operate in the realm of religious belief—“faith,” in its pejorative sense—rather than hard-headed reason. I counter each of these points and argue that the critique, though common enough in philosophical debates, is as wrong here as it has been elsewhere. There are ways of reasoning that are not based on strictly empirical data. And belief in these forms of rationality does not equate to “faith” in the pejorative sense. People reason in nonstrictly empirical ways about what is right, and what is wrong, and have done so for a very long time. These very same people are often not resistant to empirical data. Indeed, one novel aspect of my argument is that empirical data have helped researchers to understand the strength and universality of people’s sense of right and wrong—a powerful answer to the FBIP critique that deontological theories are somehow resistant to empirical evidence.
Second, I take pains to recapitulate some of the arguments in my book, Justifying IP (“JIP”). The ones relevant to this Essay are that (1) some people are personally unconvinced by the empirical case for the existence of IP law—that is, the empirical foundations of the field; (2) other rationales for IP are available, some of which are convincing—though, of course, not to everyone; and (3) at the operational level, beyond the issue of foundations, empirical evidence is important in deciding on the details of how to operate an IP system—once the decision to have one is made.
Third, I take aim at the concluding portion of FBIP, which says that those who disagree with the case for empirical foundations cannot take part in a scholarly conversation with utilitarians/empiricists. FBIP says people such as these “have nothing to say” to those who do buy the case for empirical foundations. In JIP, I anticipated just this species of “foundational exclusion” and tried my best to preempt it. My strategy was drawn from pluralist political theory, particularly the work of the late John Rawls. I said then, and still believe now, that one of the virtues of policy conversations in the IP field is that they take place at a level above those of fundamental commitments. Indeed, I used the phrase “room at the bottom” to denote the foundational pluralism I had in mind. The very idea of a “bottom layer” of IP theory was to cordon off foundation-level commitments from prosaic policy debates in IP law. The explicit purpose of this multi-tiered construct was to guard against exclusionary claims regarding one or another set of foundational commitments. I tried, in other words, to be clear that we need a “public space” in which we can debate IP policy regardless of our personal foundational commitments. This is not close minded or restrictive; quite the opposite.