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Best also argues that ...
Best also argues that legal principles dealing with fugitives and indebted persons provided a sophisticated precursor to intellectual property law as it dealt with rights in appearance, expression, and other abstract aspects of personhood. In this conception of property as fleeting, indeed fugitive, American law preserved for much of the rest of the century slavery's most pressing legal imperative: the production of personhood as a market commodity. By revealing the paradoxes of this relationship between fugitive slave law and intellectual property law, Best helps us to understand how race achieved much of its force in the American cultural imagination. A work of ambitious scope and compelling cross-connections, The Fugitive's Properties sets new agendas for scholars of American literature and legal culture.
La propriété c'est le vol!
Pierre Joseph Proudhon, Qu'est-ce Que la Propriété? (1840)
The several essential features of the phonograph demonstrate the following as faits accomplis: the captivity of all manner of sound-waves heretofore designated as "fugitive," and their permanent retention.Theft and Gift
Thomas Alva Edison, The Phonograph and Its Future (1878)
In proportion as market relations mature, the law displaces religion, just as the courts displace the church, and lawyers and judges, the clergy.... There can be no modern capitalist market... apart from the complex development and the certainty of the law. The law is the Latin of the market, just as the language of money and price is the Vulgate.. . . The modern capitalist market without the law is as little feasible as the church without religion. The courts are the church, the law the canon of everyday life, jurisprudence the theology. (Corporate Reconstruction, 86-87)The expectation of stable market value. The property right to an unchanging world. The certainty of the law. The importance of the "letter of the law," its significance as a reservoir of certainty, intensified as the law's perceived need to conceive of property in terms of bounded, tangible land began to wane. In short, the ephemeralization of property was met by the incarnation of the word. Again Sklar: "Certainty, here, does not mean changeless rigidity, but a consistency of logic and reasoning, which, though rooted in precedent, may also depart from it in adapting to, or providing for, changing conditions. Certainty means, in other words, a logic . . . that yields a reasonable predictability in both the constancy and the variability of the law" (86-87). Legal certainty, by emphasizing a "consistency of logic and reasoning," not only stresses a finite set of inferential procedures "rooted in precedent" but also valorizes the law as a system capable of functioning with "mathematical" certainty. By the terms of the fallacy, the legal forms of this "logic" (borne to market in the argot of equity, credit, debt, liability, contract) work like chemical reactions and mathematical theorems.
We talk about a contract as a meeting of the minds of the parties.. . . Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one [of the parties] does not know of the other's assent.. . . The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties' having meant the same thing but on their having said the same thing. Furthermore, as the signs may be addressed to one sense or another-to sight or to hearing- on the nature of the sign will depend the moment when the contract is made. If the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. (177-78)Holmes's emphasis on "signs" aside, his critique of the will theory of contract (of the vision of contract as a "meeting of . . . minds") represents a decisive shift toward contract's objectification. His agreement rises to the status of what the law assumes is the customary meaning held by an average, ordinary person; the proverbial "reasonable man." Holmes and other Progressives strive to be able better "to create formal, general theories that would provide uniformity, certainty, and predictability of legal arrangements." What stimulates this drive toward contract's objectification is, of course, the corporate form of personhood itself; for, under corporate employment, the organization held responsibility for its employees' contracts. Obligation remains free of the intent of the parties, and thus the law looks to the reliance of a "reasonable person" so as "to ensure that the rest of the world could rely upon uniform and predictable legal consequences."
Excerpted from The Fugitive's Properties: Law and the Poetics of Possession by Stephen Michael Best Copyright © 2004 by Stephen Michael Best. Excerpted by permission.
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