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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. Indeed, I posit, legal arguments are social forces. Below, I trace the development of labor justifications of property rights and show that the growth of capitalism changed the language judges use.

Early Anglo-American Cases: A Lockean Theory of Property

In pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had 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.

• Didn't the court in Pierson v. Post award the fox to the party that just snuck up at the end and killed the thing? The other party had put in dramatically more effort, organizing a hunting party, tracking the fox with dogs, etc. Perhaps the court was not rewarding industry and labor generally, but rewarding the ultimate apprehension/killing? -- AdamCarlis 12 Feb 2008
• I am not arguing about what the court was rewarding. I am arguing about what the court SAID it was rewarding. I should make that clearer...

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.

A Change in Property Views

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 INS v. AP (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 more capitalist-friendly form. The justices still employed the word “labor,” but the term no longer represented individual effort. Instead “labor” was defined as a resource (like skill and money) employed by a firm to conduct its activities.

AP was emblematic of 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.” Like in AP, the court deems the business (or its owner) the principal creator of the object and thus gives 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 production. 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 reasoned that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Predictably the court’s concept of the public benefit was heavily capitalistic: products were protected, but ideas were generally not. Similarly, the Cable Vision, Inc. v. KUTV, Inc. (1964) 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.” MORE?? Thus, as the 20th century elapsed, courts began to add a utilitarian qualification to the corporate, pseudo-Lockean property right.

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