In this essay, I consider arguments both for and against intellectual property rights that are pr... more In this essay, I consider arguments both for and against intellectual property rights that are premised on some conception of a morally significant information commons. In particular, I consider the argument for a morally protected information commons that is grounded in Locke's famous proviso limiting original acquisition of material property to situations that leave enough of the resource to others and Hardin's famous argument that holding material property in common leads to overuse and depletiona tragedy of the commons. I argue that neither argument is directly applicable to information objects.
Privacy Versus Security SAN DIEGO LAW REVIEW 861 justified to take the life of a person-and this ... more Privacy Versus Security SAN DIEGO LAW REVIEW 861 justified to take the life of a person-and this rules out not only the death penalty, but the use of deadly force in defense of the lives of innocent others from a culpable attack. Many people take an absolutist view with respect to something they call a "right to information," holding that there should be no restrictions of any kind, including legal protection of intellectual property rights, on the free flow of information. As this view has most famously, and idiosyncratically, been put by John Perry Barlow, "information wants to be free." 5 When it comes to rights, absolutist talk among theorists, lawyers, and ordinary folk is not at all uncommon these days. Indeed, some people seem to think that rights are, by nature, absolute and hence that it is a conceptual truth that all rights are absolute. Consider the following quote from Patrick Murphy, a Democrat who ran for Congress in 2006: I am also very concerned about the erosion of constitutional rights and civil liberties over the past few years. I taught Constitutional Law at West Point, and it makes me so angry to see our elected leaders in Washington-specifically the White House and the Republican leadership in Congress-pushing policies that erode the foundation of this country. The equal protection clause of the constitution is absolute. The right to privacy is absolute. The right to assemble is absolute. Yet time and time again, the administration has supported, and the Congressional leadership has supported nominees and policies that do not follow the constitution. With my background, I can add to this debate. And I'm not afraid to take a stand for what's right. 6
for helpful comments on earlier drafts. I am grateful to the participants of the 2012 USD School ... more for helpful comments on earlier drafts. I am grateful to the participants of the 2012 USD School of Law Institute for Law and Philosophy Conference for their comments on this Article.
In his outstanding paper “How Facts Make Law,” Mark Greenberg argues for the antipositivist claim... more In his outstanding paper “How Facts Make Law,” Mark Greenberg argues for the antipositivist claim that descriptive facts about certain social practices are not the only necessary determinants of legal content; “value facts” – which he is committed to construing as moral facts – are another necessary determinant of legal content. In this essay, I argue that, construed as doing the work Greenberg believes it does in refuting positivism, his conclusion that legal content is not possible without value facts has certain implications about the nature of morality that no purely metaphysical considerations about the relationship between social practices and the content of social norms can plausibly have. In particular, Greenberg’s conclusion, together with the obvious (because extremely weak) truth that law is possible, seems to imply moral objectivism – a highly contested view in general ethical theorizing. I take this to be a reductio of his view, as it seems clear that no theory relying ...
This essay attempts to provide an accessible introduction to the topic area of conceptual analysi... more This essay attempts to provide an accessible introduction to the topic area of conceptual analysis of legal concepts (or “conceptual jurisprudence”) and its methodology. I attempt to explain, at a fairly foundational level, what conceptual analysis is, how it is done (i.e. its appropriate methodology) and why it is important in theorizing about the law. I also attempt to explain how conceptual analysis is related to other areas in philosophy, such as metaphysics and epistemology. Next, I explain the enterprise of conceptual jurisprudence, as concerned to provide an account of those properties that (1) distinguish things that are law from things that are not law which (2) constitute the former things as law, illustrating this explanation with what I hope are intuitive examples. Three different methodological approaches are also explained and evaluated. Finally, the practical importance of conceptual jurisprudence is discussed.
The claim "information should be free" (hereinafter ISBF) has become a rallying cry for those who... more The claim "information should be free" (hereinafter ISBF) has become a rallying cry for those who believe intellectual property rights are illegitimately protected by the state. In this essay, I will attempt to (1) determine what ISBF means (which will require determining what the concept-term "information" means as used in ISBF); evaluate what kind of support there is for ISBF; (3) determine whether ISBF conforms to ordinary views about the propriety of certain restrictions on the free flow of information; and (4) determine whether ISBF provides good reason for thinking that legal protection of intellectual property rights is illegitimate. I will argue that the most charitable interpretation of ISBF lacks adequate support in mainstream moral views and thus cannot ground a wholesale challenge to the legitimacy of intellectual property rights.
s books and products are available through most bookstores and online booksellers. To contact Jon... more s books and products are available through most bookstores and online booksellers. To contact Jones and Bartlett Publishers directly, call 800-832-0034, fax 978-443-8000, or visit our website www.jbpub.com.
The concept of the rule of law and the ideals expressing its content are deeply contested. Theori... more The concept of the rule of law and the ideals expressing its content are deeply contested. Theorists distinguish two broad conceptions: procedural rule of law and substantive rule of law. The former focuses largely on the procedures by which law is enacted and applied while the latter focuses on the content of the law. One might argue that both conceptions are somehow part of the very concept of law, but this much is clear: whether internal to law or not, the standards comprising the rule of law, procedural and substantive, are also standards of political legitimacy. This article analysis those elements of the U.S. rule of recognition dealing with constitutional interpretation and judicial supremacy in order to evaluate them under procedural rule of law standards; as these elements are increasingly common among other legal systems, the conclusions drawn here will be applicable to these other legal systems. But while judicial supremacy seems to violate procedural rule of law standard...
The concept of legal obligation is utterly central to legal practice. But positivism lacks a comp... more The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on the second-order recognition obligations of officials with no account of the first-order legal obligations of citizen. As legal obligations are conceptually related to legally valid norms, this failure calls into question positivism’s theory of legal validity. In this essay, I develop Hart’s account of social obligation and supplement his account of the second-order legal obligations of official qua official with an account of the first-order obligations of citizens. The latter is constituted, I argue, by social pressure in the form of the authorization of the state’s coercive machinery for non-compliance.
The concept of legal obligation is utterly central to legal practice. But positivism lacks a comp... more The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on the second-order recognition obligations of officials with no account of the first-order legal obligations of citizen. As legal obligations are conceptually related to legally valid norms, this failure calls into question positivism’s theory of legal validity. In this essay, I attempt to remedy this omission. I augment Hart’s theory of second-order official obligation by attempting to ground a theory of first-order obligation of citizens in a modification of what I take to be Hart’s analysis of social obligation. The first-order obligations of citizens are partly constituted by social pressure in the form of the authorization of the state’s coercive machinery for non-compliance.
This brief essay concerning the digital divide, poverty, and the moral obligations appears in a f... more This brief essay concerning the digital divide, poverty, and the moral obligations appears in a forthcoming anthology for introductory courses in information ethics. It (1) defines 'digital divide,' 'absolute poverty,' and 'relative poverty'; (2) provides data on the various digital divides between nations and on the digital divides within the US; (3) provides data on global absolute poverty, as well as absolute and relative poverty in the US; (4) links poverty divides to the digital divides; and (5) makes a brief moral case that the affluent have an obligation to help ameliorate the digital divide that is part of a more general obligation to help the poor by showing that the general obligation to help the poor is supported by scriptures for the three major classically theistic, ordinary intuitions about paradigmatic cases, both consequentialist and deontological theories, and considerations of luck that deny merit claims militating against humanitarian aid; ...
Proceedings of the American Society for Information Science and Technology, 2005
Purely intra-disciplinary discussions about the legitimacy of intellectual property rights (e.g.,... more Purely intra-disciplinary discussions about the legitimacy of intellectual property rights (e.g., a purely legal discussion or a theoretical discussion from within just one discipline) tend to provide an incomplete picture of the current research on this important ethical issue. This panel will address both research and practice by showcasing a triangulated approach to current thoughts on ethical issues of intellectual property rights. One approach, from philosophy, critiques the argument that
The Handbook of Information and Computer Ethics, 2008
This chapter considers whether and to what extent various types of unauthorized computer intrusio... more This chapter considers whether and to what extent various types of unauthorized computer intrusions by private persons and groups (as opposed to state agents and agencies) are morally permissible; 1 this chapter does not cover other security-related issues, such as ...
SSRN-The Legitimacy of Intellectual Property Rights: The Irrelevance of Two Conceptions of an Inf... more SSRN-The Legitimacy of Intellectual Property Rights: The Irrelevance of Two Conceptions of an Information Commons by Kenneth Himma.
Abstract: I attempt to show that the law should, as a matter of political morality, provide limit... more Abstract: I attempt to show that the law should, as a matter of political morality, provide limited protection of intellectual property interests. To this end, I argue that the issue of whether the law ought to coercively restrict liberty depends on an assessment of all the ...
In this essay, I consider arguments both for and against intellectual property rights that are pr... more In this essay, I consider arguments both for and against intellectual property rights that are premised on some conception of a morally significant information commons. In particular, I consider the argument for a morally protected information commons that is grounded in Locke's famous proviso limiting original acquisition of material property to situations that leave enough of the resource to others and Hardin's famous argument that holding material property in common leads to overuse and depletiona tragedy of the commons. I argue that neither argument is directly applicable to information objects.
Privacy Versus Security SAN DIEGO LAW REVIEW 861 justified to take the life of a person-and this ... more Privacy Versus Security SAN DIEGO LAW REVIEW 861 justified to take the life of a person-and this rules out not only the death penalty, but the use of deadly force in defense of the lives of innocent others from a culpable attack. Many people take an absolutist view with respect to something they call a "right to information," holding that there should be no restrictions of any kind, including legal protection of intellectual property rights, on the free flow of information. As this view has most famously, and idiosyncratically, been put by John Perry Barlow, "information wants to be free." 5 When it comes to rights, absolutist talk among theorists, lawyers, and ordinary folk is not at all uncommon these days. Indeed, some people seem to think that rights are, by nature, absolute and hence that it is a conceptual truth that all rights are absolute. Consider the following quote from Patrick Murphy, a Democrat who ran for Congress in 2006: I am also very concerned about the erosion of constitutional rights and civil liberties over the past few years. I taught Constitutional Law at West Point, and it makes me so angry to see our elected leaders in Washington-specifically the White House and the Republican leadership in Congress-pushing policies that erode the foundation of this country. The equal protection clause of the constitution is absolute. The right to privacy is absolute. The right to assemble is absolute. Yet time and time again, the administration has supported, and the Congressional leadership has supported nominees and policies that do not follow the constitution. With my background, I can add to this debate. And I'm not afraid to take a stand for what's right. 6
for helpful comments on earlier drafts. I am grateful to the participants of the 2012 USD School ... more for helpful comments on earlier drafts. I am grateful to the participants of the 2012 USD School of Law Institute for Law and Philosophy Conference for their comments on this Article.
In his outstanding paper “How Facts Make Law,” Mark Greenberg argues for the antipositivist claim... more In his outstanding paper “How Facts Make Law,” Mark Greenberg argues for the antipositivist claim that descriptive facts about certain social practices are not the only necessary determinants of legal content; “value facts” – which he is committed to construing as moral facts – are another necessary determinant of legal content. In this essay, I argue that, construed as doing the work Greenberg believes it does in refuting positivism, his conclusion that legal content is not possible without value facts has certain implications about the nature of morality that no purely metaphysical considerations about the relationship between social practices and the content of social norms can plausibly have. In particular, Greenberg’s conclusion, together with the obvious (because extremely weak) truth that law is possible, seems to imply moral objectivism – a highly contested view in general ethical theorizing. I take this to be a reductio of his view, as it seems clear that no theory relying ...
This essay attempts to provide an accessible introduction to the topic area of conceptual analysi... more This essay attempts to provide an accessible introduction to the topic area of conceptual analysis of legal concepts (or “conceptual jurisprudence”) and its methodology. I attempt to explain, at a fairly foundational level, what conceptual analysis is, how it is done (i.e. its appropriate methodology) and why it is important in theorizing about the law. I also attempt to explain how conceptual analysis is related to other areas in philosophy, such as metaphysics and epistemology. Next, I explain the enterprise of conceptual jurisprudence, as concerned to provide an account of those properties that (1) distinguish things that are law from things that are not law which (2) constitute the former things as law, illustrating this explanation with what I hope are intuitive examples. Three different methodological approaches are also explained and evaluated. Finally, the practical importance of conceptual jurisprudence is discussed.
The claim "information should be free" (hereinafter ISBF) has become a rallying cry for those who... more The claim "information should be free" (hereinafter ISBF) has become a rallying cry for those who believe intellectual property rights are illegitimately protected by the state. In this essay, I will attempt to (1) determine what ISBF means (which will require determining what the concept-term "information" means as used in ISBF); evaluate what kind of support there is for ISBF; (3) determine whether ISBF conforms to ordinary views about the propriety of certain restrictions on the free flow of information; and (4) determine whether ISBF provides good reason for thinking that legal protection of intellectual property rights is illegitimate. I will argue that the most charitable interpretation of ISBF lacks adequate support in mainstream moral views and thus cannot ground a wholesale challenge to the legitimacy of intellectual property rights.
s books and products are available through most bookstores and online booksellers. To contact Jon... more s books and products are available through most bookstores and online booksellers. To contact Jones and Bartlett Publishers directly, call 800-832-0034, fax 978-443-8000, or visit our website www.jbpub.com.
The concept of the rule of law and the ideals expressing its content are deeply contested. Theori... more The concept of the rule of law and the ideals expressing its content are deeply contested. Theorists distinguish two broad conceptions: procedural rule of law and substantive rule of law. The former focuses largely on the procedures by which law is enacted and applied while the latter focuses on the content of the law. One might argue that both conceptions are somehow part of the very concept of law, but this much is clear: whether internal to law or not, the standards comprising the rule of law, procedural and substantive, are also standards of political legitimacy. This article analysis those elements of the U.S. rule of recognition dealing with constitutional interpretation and judicial supremacy in order to evaluate them under procedural rule of law standards; as these elements are increasingly common among other legal systems, the conclusions drawn here will be applicable to these other legal systems. But while judicial supremacy seems to violate procedural rule of law standard...
The concept of legal obligation is utterly central to legal practice. But positivism lacks a comp... more The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on the second-order recognition obligations of officials with no account of the first-order legal obligations of citizen. As legal obligations are conceptually related to legally valid norms, this failure calls into question positivism’s theory of legal validity. In this essay, I develop Hart’s account of social obligation and supplement his account of the second-order legal obligations of official qua official with an account of the first-order obligations of citizens. The latter is constituted, I argue, by social pressure in the form of the authorization of the state’s coercive machinery for non-compliance.
The concept of legal obligation is utterly central to legal practice. But positivism lacks a comp... more The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on the second-order recognition obligations of officials with no account of the first-order legal obligations of citizen. As legal obligations are conceptually related to legally valid norms, this failure calls into question positivism’s theory of legal validity. In this essay, I attempt to remedy this omission. I augment Hart’s theory of second-order official obligation by attempting to ground a theory of first-order obligation of citizens in a modification of what I take to be Hart’s analysis of social obligation. The first-order obligations of citizens are partly constituted by social pressure in the form of the authorization of the state’s coercive machinery for non-compliance.
This brief essay concerning the digital divide, poverty, and the moral obligations appears in a f... more This brief essay concerning the digital divide, poverty, and the moral obligations appears in a forthcoming anthology for introductory courses in information ethics. It (1) defines 'digital divide,' 'absolute poverty,' and 'relative poverty'; (2) provides data on the various digital divides between nations and on the digital divides within the US; (3) provides data on global absolute poverty, as well as absolute and relative poverty in the US; (4) links poverty divides to the digital divides; and (5) makes a brief moral case that the affluent have an obligation to help ameliorate the digital divide that is part of a more general obligation to help the poor by showing that the general obligation to help the poor is supported by scriptures for the three major classically theistic, ordinary intuitions about paradigmatic cases, both consequentialist and deontological theories, and considerations of luck that deny merit claims militating against humanitarian aid; ...
Proceedings of the American Society for Information Science and Technology, 2005
Purely intra-disciplinary discussions about the legitimacy of intellectual property rights (e.g.,... more Purely intra-disciplinary discussions about the legitimacy of intellectual property rights (e.g., a purely legal discussion or a theoretical discussion from within just one discipline) tend to provide an incomplete picture of the current research on this important ethical issue. This panel will address both research and practice by showcasing a triangulated approach to current thoughts on ethical issues of intellectual property rights. One approach, from philosophy, critiques the argument that
The Handbook of Information and Computer Ethics, 2008
This chapter considers whether and to what extent various types of unauthorized computer intrusio... more This chapter considers whether and to what extent various types of unauthorized computer intrusions by private persons and groups (as opposed to state agents and agencies) are morally permissible; 1 this chapter does not cover other security-related issues, such as ...
SSRN-The Legitimacy of Intellectual Property Rights: The Irrelevance of Two Conceptions of an Inf... more SSRN-The Legitimacy of Intellectual Property Rights: The Irrelevance of Two Conceptions of an Information Commons by Kenneth Himma.
Abstract: I attempt to show that the law should, as a matter of political morality, provide limit... more Abstract: I attempt to show that the law should, as a matter of political morality, provide limited protection of intellectual property interests. To this end, I argue that the issue of whether the law ought to coercively restrict liberty depends on an assessment of all the ...
Características: Serie de Teoría Jurídica y Filosofía del Derecho n.º 56, tapa rústica 11 x 16.7 ... more Características: Serie de Teoría Jurídica y Filosofía del Derecho n.º 56, tapa rústica 11 x 16.7 cm., 498 pp. Derecho y moral: el debate entre el positivismo incluyente y el excluyente Este libro presenta una defensa de la tesis de la incorporación. El capítulo primero comienza con un vistazo histórico al debate que condujo a la aceptación ostensible de Hart de la tesis de la incorporación y la discusión crítica de algunas objeciones a ello. Finaliza con una defensa prima facie de la tesis de la incorporación. El resto del libro se ocupa de evaluar los argumentos más influyentes en contra de la tesis de la incorporación. Los capítulos segundo, tercero, cuarto y quinto se ocupan del famoso argumento de Joseph Raz de que la naturaleza del derecho implica una pretensión de autoridad legítima que es incompatible con la existencia de criterios morales de validez jurídica. El capítulo sexto se ocupa de evaluar los argumentos del influyente escrito de Scott Shapiro “On Hart’s Way Out”. En el capítulo séptimo, el último capítulo, se intenta identificar el contenido de la regla de reconocimiento y el contenido de los criterios de validez en los Estados Unidos, tomando en cuenta una importante característica de la práctica estadounidense dejada de lado en las discusiones sobre tales materias.
This book provides a new and wide-ranging study of law's normativity, examining conceptual, descr... more This book provides a new and wide-ranging study of law's normativity, examining conceptual, descriptive and empirical dimensions of this perennial philosophical issue. It also contains essays concerned with, among other issues, normativity from a psychoanalytic point of view; the relationship between semantic and legal normativity; the treatment of normativity from a sociological point of view; and normativity as it pertains to transnational law. The contributors come not only from the usual Anglo-American and Western European community of legal theorists, but also from Latin American and Eastern European communities, representing a diversity of perspectives and points of view – including essays from both analytic and continental methodologies. Given the various topics addressed in the proposed volume, it will appeal to scholars in transnational law, legal sociology, normative legal philosophy concerned with problems of state legitimacy and practical rationality, as well of those working in general jurisprudence. It promises a highly important contribution to the study of law's normativity.
Uploads
Papers by Kenneth Himma
Derecho y moral: el debate entre el positivismo incluyente y el excluyente
Este libro presenta una defensa de la tesis de la incorporación. El capítulo primero comienza con un vistazo histórico al debate que condujo a la aceptación ostensible de Hart de la tesis de la incorporación y la discusión crítica de algunas objeciones a ello. Finaliza con una defensa prima facie de la tesis de la incorporación. El resto del libro se ocupa de evaluar los argumentos más influyentes en contra de la tesis de la incorporación. Los capítulos segundo, tercero, cuarto y quinto se ocupan del famoso argumento de Joseph Raz de que la naturaleza del derecho implica una pretensión de autoridad legítima que es incompatible con la existencia de criterios morales de validez jurídica. El capítulo sexto se ocupa de evaluar los argumentos del influyente escrito de Scott Shapiro “On Hart’s Way Out”. En el capítulo séptimo, el último capítulo, se intenta identificar el contenido de la regla de reconocimiento y el contenido de los criterios de validez en los Estados Unidos, tomando en cuenta una importante característica de la práctica estadounidense dejada de lado en las discusiones sobre tales materias.