Why IP is underdeveloped...

Wednesday, August 30, 2006

I think most lawyers are positivist. If this were the age of slavery, and you asked is it fair for a runaway slave to be punished, lawyers will say yes, because that is the law. If this were the age of collonialism and you asked why a fight for independence is prohibited, they'll answer that the law says its a subversion. If this were the Nazi-era and you asked why the marriage between German and Jews are prohibited, they'll say "es ist so", it is written in the N├╝rnberger Gesetze.

And and in the knowledge age, if you asked on what grounds should intellectual property violations be criminalized for the "violators" injured no one and steal nothing, lawyers will say: because the law defines what a property should be and what a crime is. I do not find this answer a satisfactory one.

This is not argument against positivism. I only try to show that when it comes to what should be the content of the law, positivist often failed to give good argumentation.

"Positivism stands behind Nazi barbarism and said that a rule is a rule" (Gustav Radbruch)