Plantinga's Evolutionary Argument Against Naturalism aims to show that naturalism is, as he puts it, ‘incoherent or self defeating’. Plantinga supposes that, in the absence of any God-like being to guide the process, natural selection is unlikely to favour true belief. Plantinga overlooks the fact that adherents of naturalism may plausibly hold that there exist certain conceptual links between belief content and behaviour. Given such links, natural selection will favour true belief. A further rather surprising consequence of the existence of (...) such links is this: even if semantic properties are epiphenomenal, unguided evolution will still favour true belief. (shrink)

Despite the long history of beliefs about the therapeutic properties of work for people with mental ill health, rarely has therapeutic work itself been a focus for historical analysis. In this article, the development of a therapeutic work ethic (1813—1979) is presented, drawing particular attention to the changing character and quality of beliefs about therapeutic work throughout time. From hospital factories to radical ‘antipsychiatric’ communities, the article reveals the myriad forms of activities that have variously been considered fit work for (...) people with mental health problems. While popular stereotypes of basket-weaving paint a hapless portrait of institutional work, a more nuanced reading of therapeutic work and its political and philosophical commitments is advanced. The article concludes by arguing that the non-linear and inherently contested development of therapeutic work is less the effect of paradigmatic shifts within the therapeutic professions, but rather evidence of a broader human struggle with work. (shrink)

This chapter contains sections titled: Analytical Issues The Need for Justification Justificatory Theories References.

Property Law and Social Morality develops a theory of property that highlights the social construction of obligations that individuals owe each other. By viewing property law through the lens of obligations rather than through the lens of rights, the author affirms the existence of important property rights and defines the scope of those rights. By describing the scope of the decisions that individuals are permitted to make and the requirements of other-regarding decisions, the author develops a (...) single theory to explain the dynamics of private and common property, including exclusion, nuisance, shared decision making, and decision making over time. The development of social recognition norms adds to our understanding of property evolution, and the principle of equal freedom underlying social recognition that limit government interference with property rights. (shrink)

Jonathan Schaffer argues against a necessary connection between properties and laws. He takes this to be a question of what possible worlds we ought to countenance in our best theories of modality, counterfactuals, etc. In doing so, he unfairly rigs the game in favor of contingentism. I argue that the necessitarian can resist Schaffer’s conclusion while accepting his key premise that our best theories of modality, counterfactuals, etc. require a very wide range of things called ‘possible worlds’. However, the necessitarian (...) can and should insist that, in many cases, these worlds are not metaphysically possible. I will further argue that, having taken such a stance, the necessitarian has additional resources to respond to Schaffer’s other arguments against the view. (shrink)

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in which the grant of a positive limited-term (...) monopoly right entails a corresponding duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions. (shrink)

From the time of British colonial settlement, innumerable taonga have been appropriated from the indigenous Māori population of Aotearoa/New Zealand, from cloaks, weapons, carvings and musical instruments to the practices and products of tā moko. This article focuses on the topic of cultural appropriation, homing in on a recent legal case, Whitmill v. Warner Bros., in which an artist sued Warner Bros. in a US court for pirating a ‘ Māori-inspired’ tattoo created for Mike Tyson, so as to tease out (...) the conflicts between intellectual property laws and norms on one hand, and international frameworks for human and cultural rights on the other. It examines the implications of the case for tā moko as an indigenous artistic tradition, and the tension between human/artistic and cultural rights, before discussing potential remedial strategies, drawing on the findings of the Wai 262 report into claims concerning New Zealand law and policy affecting Māori culture and identity. Theoretically, it employs Manuel DeLanda’s assemblage theory as a framework for analysis, the benefit of DeLanda’s work being that it provides a novel approach circumventing the usual ontological terms of intellectual property laws and norms, which tend towards a kind of methodological individualism or micro-reductionism. (shrink)

In his essay The Dynamic Analytics of Property Law, Professor Michael Heller describes and criticizes the familiar, current analytical tools of property theory and calls for the adoption of a more dynamic approach. In this comment, I shall address briefly two issues discussed in Heller's paper: his suggestion that we add a fourth type of property – "anticommons property" – to the well-known "property trilogy" of private property, commons property, and state property; (...) and his critique of the "bundle of rights" approach of the courts to the takings problem, which leads to excessive fragmentation of private property. The former issue nicely demonstrates the current tendency of scholars to argue against "too much private property." The latter illustrates the familiar, futile search of property scholars for an all-encompassing metaphor to describe and identify private property. (shrink)

The purpose of this article is to identify a limit to the appropriate application of property law to the use and storage of bodily material. I argue here that property law ought to be limited to protecting ‘contingent rights’ and that recent cases where property rights have been recognised in semen represent the application of property law beyond this limit. I also suggest how the law ought to develop in order to avoid the overextensive use of (...) property law. (shrink)

Mit diesem Handbuch wird auf wissenschaftlicher Grundlage eine Gesamtdarstellung vor allem der privatrechtlichen Medienprozesse vorgelegt, die im Zusammenhang mit der Produktion und Vermarktung bzw. Nutzung von Zeichen, Bildern, T nen und anderen Informationen (Medienprodukten) entstehen. Dabei werden auch die europarechtlichen Aspekte der Entwicklung des Medienrechts dargestellt. Das Handbuch enth lt Richtlinien, Gesetzestexte und Vertragsmuster, um dem Nutzer einen schnellen Zugriff zu erleichtern.

This article focuses on the analysis of the main positions of the Constitutional Court of the Republic of Lithuania in the cases of intellectual property law. In the article three judgments and the positions of the Constitutional Court extracted therefrom are analysed. The Constitutional Court has formed several important positions with reference to intellectual property law regarding usage of property protection norms for the protection of intellectual property, requirements of application of compensation as an alternative to (...) damages compensation and the calculation of criterions thereof as well as functional legal protection of trademarks. It should be noted that Article 23(1) of the Constitution of the Republic of Lithuania has extended protection to property and, as the Constitutional Court of the Republic of Lithuania has noted, the constitutional protection of property covers not only the protection of tangible, but also of intellectual property. In the same judgment, the Constitutional Court stated another important intellectual property related rule, namely that constitutionally established property protection rights have to be implemented regardless of whether a corresponding international treaty has not been ratified, as protection of authors’ rights is granted under Articles 23 and 42(3) of the Constitution of the Republic of Lithuania. However, the second position stating that the rights of foreign subjects are to be implemented even though a corresponding international treaty has not been signed is to be criticised as by coming to such a conclusion the Constitutional Court has ignored the otherwise generally recognised principle of territoriality of intellectual property rights. In two other cases the Constitutional Court has made important statements relevant to intellectual property law. First of all, the Court stated that compensation instead of claiming actual damages is constitutional. By analysing the positions formulated by the Court, an indirect conclusion can be made to the effect that compensation instead of claiming actual damages is necessary in order to ensure effective protection of intellectual property rights. In other words, the purposes of compensation can be recognised: restoring (compensating) the infringed interests of the injured party; simplifying judicial proceedings, whereby faster proceedings (litigation) and easier substantiation is sought; and the preventive purpose (strong preventive effect). However, the Court’s argument regarding the criterion of compensation calculation, saying that the damages incurred by the intellectual property rights owner depend on the sale value of the product concerned is criticisable, as it is rarely the case that the licence fee or profit acquired in the result of unauthorised use of intellectual property objects is calculated with reference to the final sale price of the product. Notwithstanding the arguably weak argument of the Court, the Court’s position regarding the criterion of final sale price itself does not preclude the possibility of reaching a fair final decision. Finally, the Court acknowledged that trademark protection was limited to the economic functions of the trademark and the full protection thereof. (shrink)

Research is increasingly suggesting that human intuitions form the core of many laws. Laws, therefore, can serve as one potential testing ground for new theories about the content and structure of intuitions. Here the model of ownership psychology as an evolved cognitive adaptation is evaluated against long-standing features of property law.

This volume seeks to bring the concepts and doctrines of property law into the philosophy of property. It offers contributions from leading theorists of property law. The papers serve as introductions to many facets of philosophical work grounded in the law of property and as cutting edge contributions to the scholarly literature.

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches - creating new ideal types and synthesizing existing ones - that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Waters aries that the demands of indigenous bio-prospecting programs need to be considered against the needs of indigenous communities. Issues of sovereignty and rights to self-determination need to be resolved in the context of negotiating bio-prospecting plans. By setting out clear guidelines and priorities, as determined through the eyes and values of indigenous peoples, indigenous communities may have an opportunity to participate in the global sharing of biomedical information and healing for all our relations. Before any projects get underway, however, (...) social, political, and legal issues ought to be settled so that informed decision can be made on the part of indigenous communities to partake of the invitation to bio-prospecting, or not. (shrink)

Legal philosophers and property scholars sometimes disagree over one or more of the following: the meaning of the word 'property,' the concept of property, and the nature of property. For much of the twentieth century, the work of W.N. Hohfeld and Tony Honoré represented a consensus around property. The consensus often went under the heading of property as bundle of rights, or more accurately as a set of normative relations between persons with respect to (...) things. But by the mid-l 990s, the consensus was under attack. Key figures in the attack were James Penner, a legal philosopher, and Thomas W. Merrill and Henry E. Smith, two highly regarded professors of property law. This article aims to repel the attack and argues for property as a set of normative relations between persons with respect to things. The positive case for this view of property pays special attention to the philosophy of language and the analysis of concepts. The positive case also maintains that the right to use and the power to transfer are as central to property as the right to exclude. It is possible that the virtues of Smith's modular theory of property differ from the virtues of a well-crafted bundle theory. Indeed, it may be the case that these two theories throw light on different features of property law and are not, save at the margin, competitors with each other. The label 'new essentialism' sometimes applied to the work of Penner, Merrill, and Smith seems inapt if property does not have an essence. Of course, they might refuse the label. (shrink)

Are property rights absolute? This paper attempts to reframe this question by drawing on insights from the field of social ontology. My main claim is that, even if we accept the most extreme view of the absoluteness of property rights, there are some non-normative conceptual limitations to these rights. The conceptual limitations are based on two claims about the nature of property rights and their subject matter, namely objects in the world: (1) property law regulates relations (...) between persons through the use of objects, and not relations between persons and objects; (2) even when owned, objects retain some of their ‘independent’, unowned, existence. Taken together, these claims confine property law to the institutional meaning that is given to objects, which is distinct from their social and natural meanings. Since property law defines objects in a certain way, it makes space for other social considerations but without the need to qualify property rights. (shrink)

Against the background of the creation of an EU-wide frame of reference for private law relevant to the Common Market, this study, which was requested by the EU Commission, analyses the dovetailing between contract and tort law on the one hand, and between contract and property law on the other. The study examines the legal orders of almost all the Member States of the EU, illustrates the differences between contractual and non-contractual liability and evaluates the different systems of the (...) transfer of property, of movable and immovable securities as well as trust law. The study comes to the conclusion that the intensive considerations on the creation of a model-law in the area of European private law do not allow these thoughts to be limited to contract law. Such a limitation to the scope of the regarding of this area would probably cause more problems than it would solve, or at any rate not do justice to the needs of the Common Market. (shrink)

Intellectual property law operates with the ontological assumption that immaterial goods such as works, inventions, and designs exist, and that these abstract types can be owned like a piece of land. Alexander Peukert provides a comprehensive critique of this paradigm, showing that the abstract IP object is a speech-based construct, which first crystalised in the eighteenth century. He highlights the theoretical flaws of metaphysical object ontology and introduces John Searle's social ontology as a more plausible approach to the subject (...) matter of IP. On this basis, he proposes an IP theory under which IP rights provide their holders with an exclusive privilege to use reproducible 'Master Artefacts.' Such a legal-realist IP theory, Peukert argues, is both descriptively and prescriptively superior to the prevailing paradigm of the abstract IP object. This work was originally published in German and was translated by Gill Mertens. (shrink)

The article attempts to present a thorough analysis of intelectual property, as main property of a modern company, from the perspective of private law. The article anlyzes the essence of the intangible resources that form the intellectual capital and discusses whether the modern institutes of law allow the universal protection of companies‘ intellectual capital. The first part of the article analizes the conception of intangible resources and provides their qlassification. The second part of the article discusses the understanding (...) of intellectual capital and importance thereof to modern companies. In the third part of the article, the possibility to financially account all intellectual property of a company is analyzed. The forth and fifth parts of the article reveal the possibilities of legal protection of intellectual capital. The law on intelectual property is not sufficient to protect all intelectual capital because it protects only that part of intangibles, which become the onjects of the intelectual property. (shrink)

This paper describes intellectual property legislation in the European Union, the US and the Draft Treaty on the legal protection of unoriginal databases, usually available in the Internet. I argue that this type of legislation, if enforced upon developing countries and countries in transition through international ‘agreements’, could in effect deprive them of their own information commons, their own public domain. With examples from China, India, Africa and Iceland, I argue that this deprivation in the case of developing countries (...) is, morally, equal to a virtual war against them by the West, wholly unjustified and dangerous-an example of virtual imperialism. (shrink)