This is the second speech delivered on 21st June 1878, in which Hugo explains his case for a system that focuses more on society and less on the heirs of authors. Though he finds the interest of heirs just as respectable and worth keeping in mind.
Disclaimer – The following text is an English translation of a French original. The translation was performed using DeepL. Although I have made the best of my efforts to maintain the accuracy of the source material. I would suggest you check the original source in Pataille, J., ed. Annales de la Propriété Industrielle, Artistique et Littéraire. Vol. 25. Paris, 1880. Available through Gallica, the digital archive of the Bibliothèque nationale de France. If you don’t find the document, let me know. I will share a copy with you.
Here we go:
Discours de M. Victor Hugo , président du Congrés .(Séance solennelle d’ouverture du 17 juin.)
Since you wish to know my opinion, gentlemen, I shall tell you.
This, moreover, is merely a conversation.
Gentlemen, in this serious matter of literary property, there are two entities involved: the author and society. I use the word entity for brevity; they are like two distinct persons. These two persons, these two entities, know what they are doing and what they want; only they know this.
In a moment, we will address the question of a third party, the heir.
As for me, I have no hesitation in saying that the most absolute, the most complete right belongs to these two entities: the author, who is the first entity, and society, which is the second.
The author knows what he is doing.
Society knows what it wants.
The author gives the book, society accepts it or does not accept it. The fate of the book is decided by society.
The heir does not make the book; he cannot have the rights of the author.
The heir does not create success; he cannot have the rights of society.
I would find it difficult to see Congress recognising any value in the will of the heir.
Let us not take false starting points.
The author knows what he is doing; society knows what it is doing; the heir does not. He is neutral and passive.
Let us first examine the conflicting rights of these two entities: the author who creates the book, and the company that accepts or rejects this creation.
The author obviously has an absolute right over his work; this right is complete. It goes very far, because it extends to destruction . But let us be clear about this destruction . Before publication, the author has an indisputable and unlimited right. Imagine a man like Dante, Molière, Shakespeare. Imagine him at the
moment when he has just finished a great work. His manuscript is there, in front of him; imagine that he has the whim to throw it into the fire, no one can stop him. Shakespeare can destroy Hamlet; Molière, Tartuffe; Dante, Inferno.
But as soon as the work is published, the author is no longer its master. It is then that the other character takes hold of it, call it what you will: the human mind, the public domain, society. It is this character who says: I am here, I take this work, I do with it what I believe I should do, I, the human spirit; I possess it, it is mine from now on. And may my honourable friend Mr. de Molinari allow me to say this to him, the work no longer belongs to the author himself. He can no longer remove anything from it; or else, upon his death, everything reappears. His will can do nothing about it. Voltaire, from the depths of his grave, would like to suppress La Pucelle; Mr. Dupanloup would publish it.
The man who is speaking to you at this moment began as a Catholic and a monarchist. He suffered the consequences of an aristocratic and clerical education. Was he refused permission to republish
works from his childhood? No. (Bravo! Bravo!)
I wanted to mark my starting point. I wanted to be able to say: This is where I started and this is where I ended up.
I said this in exile: I started from a happy position and rose to the misfortune that is the consequence of duty fulfilled, of conscience obeyed. (Applause.) I do not want to erase the early years of my life.
But I go much further, I say: It is not up to the author to make a deletion in his work once he has published it. He can make a correction of style, he cannot make a deletion of conscience. Why? Because the other character, the public, has taken possession of his work.
I have sometimes written harsh words, which I later I would have liked, out of a feeling of leniency, to erase . It happened to me one day… I can tell you this, to condemn the name of a very guilty man; and I certainly did well to condemn that name. This man had a son. That son met a heroic end, he died for his country . So I exercised my right and forbade that name from being spoken in the theatres of Paris, where the plays I have just mentioned were read publicly. But it was not in my power to erase the disgraced name from the work; the heroism of the son could not erase the fault of the father. (Bravo.)
I would like to do so, but I cannot. If I could, I would have done so.
You see, then, how much the public, human conscience, human intelligence, the human spirit, that other character who is present alongside the author, has an absolute right that cannot be infringed upon.
All the author can do is write faithfully. As for me, I have peace and serenity of conscience. That is enough for me. (Applause.)
All that the author can do is write faithfully. As for me, I have All the author can do is write honestly. As for me, I have peace and serenity of conscience. That is enough for me. (Applause.)
Let us do our duty and leave it to the future to judge. Once the author dead, the author gone, his work belongs only to his memory, which will either wither or glorify it. (That’s very true! Very good!)
I declare that if I had to choose between the writer’s right and the right of the public domain, I would choose the right of the public domain. Above all, we are men of devotion and sacrifice. We
must work for everyone before working for ourselves.
That said, there is a third character, a third entity in which I take the deepest interest: the heir, the child. This raises the very delicate, very curious, very interesting question of heredity and the form it should take.
I ask your permission to quickly submit to you, from this new point of view, the ideas that seem to me to result from my careful examination of this question.
What is a book?
The author knows. He wrote it.
Society knows. It reads it.
The heir does not know. It is none of his business.
Joseph de Maistre, Voltaire’s heir, would not have the right to say: I know about it.
The heir has no right to make a deletion, to remove a line. He has no right to delay for a minute or to diminish by one copy the publication of his ancestor’s work. (Bravo! Bravo! Very good!)
He has only one right: to live off the inheritance that his ancestor has bequeathed to him.
Gentlemen, I say this quite clearly. I consider all forms of current legislation that constitute the right of the heir for a limited period of time to be detestable. They grant him complete authority that they have no right to give him, and they grant him the right of publication for a limited time, which is a useless part. They grant him complete authority that they have no right to give him, and they grant him the right of publication for a limited time, which is a useless part. The law is very easily circumvented.
The heir, in my opinion, has only one right, I repeat: to live off the work of his ascendant; this right is sacred, and it would certainly not be easy to make me disinherit our children and grandchildren . We work first for all men, then for our children .
But what we firmly want is for the right of publication to remain absolute and entirely in the public domain. It is the right of human intelligence
That is why, many years ago – I am one of those who sadly have to go back a long way in their memories – I proposed a very simple mechanism which seemed to me, and still seems to me, to have the advantage of reconciling all the rights of the three parties involved: the author, the public domain and the heir. Here is the system: when the author dies, their book belongs to the public domain; anyone can publish it immediately, with complete freedom, because I am in favour of freedom. Under what conditions? I will tell you.
There is an article in our laws that has no penalty, which means it has been violated very often. It is an article that requires all publishers, before publishing a work, to make a declaration to the bookshop management, at the Ministry of the Interior, covering the following points:
1st point: What is the book that he is going to publish?
2nd point: Who is the printer?
3rd point: What will be the format?
4th point: What is the name of the author?
This is where the declaration required by law ends. I would like to see two other pieces of information added, which I will tell you about.
The publisher would be required to declare the cost price for each copy of the book he intends to publish and the price at which he intends to sell it. Between these two prices, in this interval, is included the publisher’s profit.
That being the case, you have certain data: the number of copies, the cost price and the selling price, and you can, in the simplest way possible, assess the profit.
Here, I will be told: You are establishing the publisher’s profit on the basis of a simple declaration and without knowing whether he will sell his edition. No, I want the law to be absolutely fair. I even want it to lean more towards the public domain than towards the heirs. So I say to you: the publisher will only be required to account for the profit he has made when he comes to file a new declaration. Then we say to him: You have sold the first edition, and since you want to publish a second one, you owe the heirs their royalties. This right, gentlemen , do not forget, must be very moderate, for the heir’s right must never be an obstacle to the right of the public domain, an obstacle to the distribution of books. I would ask for only a royalty of five or ten per cent on the profit made .
No objection possible. The publisher cannot find onerous a condition that applies to profits already earned and is so moderate; for if he has earned a thousand pounds, he is only asked for a hundred pounds and is left with nine hundred pounds. You can see how advantageous to him is the law that I propose and that I would like to see passed.
I repeat that this is simply a conversation. We are all seeking to enlighten one another. I have studied this question extensively in the interests of enlightenment and freedom. I look for objections and I confess that I cannot find any. I see all objections to the old system crumbling; everything that has been said about the good or bad will of an heir, about a bishop confiscating Voltaire, has been excellently said, it was true in the old system, but in mine it vanishes.
The heir exists only as a stakeholder, levying a very small royalty on the proceeds of his ancestor’s work. Except for the concessions made and stipulated by the author during his lifetime, contracts that are binding, except for these reservations, the publisher may publish the work in as many copies as he sees fit, in the format he pleases; he makes his declaration, he pays the royalty and that is all there is to it.
Here, one objection is that our law has a loophole. There are legal experts in this assembly; they know that there is no statute of limitations without penalty; however, the statute of limitations relating to the declaration has no penalty. The publisher makes the declaration required of him by law, if he wishes to do so. This leads to a great deal of fraud, the perpetrators of which are now victims. The law should attach a penalty to this obligation .
I would like the legal experts to indicate this themselves. It seems to me that a false declaration made by a publisher could be likened to forgery of a public or private document. A penalty is therefore necessary; in my opinion, it is only on this condition that we will be able to use the system that I have the honour of explaining to you, and which I proposed many years ago.
This system has been taken up with great loyalty and competence by a distinguished publisher whom I regret not seeing here, Mr Hetzel; he has published an excellent paper on this subject.
In my opinion, such a law would be useful. I certainly do not have the opinion of the very distinguished writers who are listening to me, but it would be very useful if, in their resolutions, they would take into account what I have had the honour of telling them:
1º There are only two parties with a genuine interest: the writer and society;
2º The interests of the heir, although very respectable, must come second.
The interests of the heir must be safeguarded, but under conditions so moderate that, in no case, do these interests take precedence over the interests of society.
You have seen all the objections collapse. You have heard my words. I do not wish to influence your decision, and I do not want to know to what extent you will agree with the advice I am giving you.
I believe that your decision will be a good one.
I am sure that the future belongs to the solution I have proposed to you.
If you do not accept it, the future is patient, it has time, it will wait.
(Prolonged applause. – The assembly votes unanimously to have this speech printed.)
So, I was poring over the minutes of the 1878 Paris conference—the one that set the stage for the Berne Convention of 1886. And I chanced upon Victor Hugo’s first speech on 17th June 1878. He gave three speeches in total, contrary to what some believe to be two. Although I have seen some of these snippets floating around in the scholarship on the notion of public domain and public interest, etc., this time, when I read the whole thing, every word. And voilà… it hit differently. And I think it’s worth quoting in full. This post is limited to the first speech delivered on 17th June. Speech 2 is here, and Speech 3 is here.
Disclaimer – The following text is an English translation of a French original. The translation was performed using DeepL. Although I have made the best of my efforts to maintain the accuracy of the source material. I would suggest you check the original source in Pataille, J., ed. Annales de la Propriété Industrielle, Artistique et Littéraire. Vol. 25. Paris, 1880. Available through Gallica, the digital archive of the Bibliothèque nationale de France. If you don’t find the document, let me know. I will share a copy with you.
Okay, here are a few things that caught my interest –
First, I liked how Hugo defines the book and emphasises its importance to progress, using highly compelling rhetoric to make his point clear. While he discusses the public domain, it is a different kind of course—one which keeps the author’s rights perpetual, but not in a simple black-and-white manner. He says,(emphasis placed by me)
“Gentlemen, let us return to principle: respect for property. Let us affirm literary property, but at the same time, let us found the public domain. Let us go further: let us enlarge it. Let the law grant to all publishers the right to print all books after the author’s death, on the sole condition of paying to the direct heirs a very modest royalty, not exceeding in any case five or ten percent of the net profit. This very simple system, reconciling the incontestable property of the writer with the no less incontestable right of the public domain, was indicated in the commission of 1836 by the one who now addresses you; and this solution, with all its developments, may be found in the minutes of that commission, then published by the Ministry of the Interior.”
And he adds something which I found even more intriguing, given my work on the genealogy of balance discourse in international copyright law:
“Let us not forget: the principle is double. The book, as book, belongs to the author; but as thought, it belongs—to use no word too vast—to humanity. All minds have right to it. And if one of the two rights, the right of the writer or the right of the human spirit, had to be sacrificed, it would surely be the writer’s right, for the public interest is our sole preoccupation, and all, I declare, must take precedence over us. (Numerous marks of approval.)”
But mind it, it is not to be confused with the idea of balance that is thrown everywhere these days—it’s more about reconciling interest with a clear instrumental relationship with authors, right alongside that of human spirituality. In the event of a conflict, the latter would prevail.
Yes, you read him right …. if one of the two rights, that of the writer or that of the ‘human spirit’ (which seems vaguer than the notions of public interest mainly linked to limiations and exceptions these days), were to be sacrificed, it must surely be the writer’s, for the public interest is, he insists, our only true concern, and all else must yield before it. And then comes something that, to me, feels like a rhetorical sleight of hand. Hugo adds:
“But, as I have said, such a sacrifice is unnecessary. Ah, light! Light always! Light everywhere! The universal need is light. The light is in the book. Open the book wide. Let it shine, let it act. Whoever you are that would cultivate, vivify, edify, soften, appease—put books everywhere; teach, show, demonstrate; multiply schools; schools are the luminous points of civilization.”
It’s also interesting how the rhetoric of civilisation is played out here and the way the idea of literature or text is described, going to the extent of claiming that text is civilisation, underscoring a particular epistemic stand on knowledge production, which, in no way, was universal yet was enclosed like it was. (I will discuss this idea in detail in the coming days.)
Alright, that’s what piqued my curiosity the most. Below is his entire speech; see what excites or irritates you:
“Speech of Victor Hugo, President of the Congress (Solemn opening session, 17 June)
Gentlemen,
What makes this memorable year so great is that, supremely, above the rumors and clamor, imposing a majestic interruption to the astonished hostilities , it gives voice to civilization. We can say of it: it is a year that is obeyed. What it has set out to do, it is doing. It is replacing the old agenda, war, with a new agenda, progress. It is overcoming resistance. Threats are rumbling, but the union of peoples smiles. The work of the year 1878 will be indestructible and complete. Nothing is temporary. One senses in everything that is being done something definitive. This glorious year proclaims, through the Paris Exposition, the alliance of industries; through the centenary of Voltaire, the alliance of philosophies; through the congress gathered here, the alliance of literatures (Applause); a vast federation of labor in all its forms, an august edifice of human fraternity based on peasants and workers and crowned by intellectuals. (Bravo.)
Industry seeks utility, philosophy seeks truth, literature seeks beauty. Utility, truth, beauty: these are the threefold goals of all human endeavor; and the triumph of this sublime endeavor, gentlemen, is civilization among peoples and peace among men. It is to witness this triumph that you have come here from all corners of the civilized world. You are the great minds that nations love and revere, you are the famous talents, the generous voices that are listened to, the souls working for progress. You are the peacemakers. You bring here the radiance of renown. You are the ambassadors of the human spirit in this great city of Paris. Welcome. Writers, orators, poets, philosophers, thinkers, fighters, France salutes you. (Prolonged applause.)
You and we are fellow citizens of the universal city. All of us, hand in hand, affirm our unity and our alliance. Let us enter, all together, into the serene homeland, into the absolute, which is justice, into the ideal, which is truth.
It is not for personal or limited interests that you are gathered here; it is for the universal interest. What is literature? It is the setting in motion of the human spirit. What is civilization? It is the perpetual discovery made at every step by the human spirit in motion; hence the word Progress. One might say that literature and civilization are identical.
Peoples are measured by their literature. An army of two million men passes, an Iliad remains; Xerxes has the army, but lacks the epic: Xerxes fades away. Greece is small in territory but great in Aeschylus. (Movement.) Rome is but a city; but through Tacitus, Lucretius, Virgil, Horace, and Juvenal, this city fills the world. If you mention Spain, Cervantes springs to mind; if you speak of Italy, Dante rises; if you name England, Shakespeare appears. At certain moments, France can be summed up in one genius, and the splendor of Paris merges with the brilliance of Voltaire. (Repeated applause.)
Gentlemen, your mission is a lofty one. You are a kind of constituent assembly of literature. You have the authority, if not to vote on laws, at least to dictate them. Say the right things, express true ideas, and if, by some chance, you are not listened to, well, you will prove the legislation wrong.
You are going to establish a foundation, literary property. It is within the law, and you are going to introduce it into the code. For I affirm that your resolutions and your advice will be taken into account.
You are going to make it clear to legislators who would like to reduce.
You will make it clear to legislators who would like to reduce literature to a local phenomenon that literature is a universal phenomenon. Literature is the government of the human race by the human spirit. (Bravo!)
Literary property is of general utility. All old monarchical laws have denied and still deny literary property. To what end? To the end of enslavement. The writer who owns his property is The writer who owns his work is the free writer. To take away his property is to take away his independence. At least, that is the hope. Hence this singular sophism, which would be childish if it were not treacherous: thought belongs to everyone, therefore it cannot be property, so literary property does not exist. First, there is a strange confusion between the faculty of thinking, which is general, and thought, which is individual; thought is the self. Then there is confusion between thought, which is abstract, and the book, which is material. The writer’s thought, as thought, escapes any hand that would seize it; it flies from soul to soul; it has this gift and this power, virum volitare per ora; but the book is distinct from thought; as a book, it is graspable, so graspable that it is sometimes seized. ( Laughter. ) The book, a product of the printing press, belongs to industry and determines, in all its forms, a vast commercial movement; it is sold and bought; it is property, value created and not acquired, wealth added by the writer to the national wealth, and certainly, from all points of view, the most indisputable of properties. This inviolable property is violated by despotic governments ; they confiscate the book , hoping thus to confiscate the writer . Hence the system of royal pensions . Take everything and give back a little . Spoliation and subjugation of the writer . He is robbed , then bought . A futile effort, moreover . The writer escapes. He is made poor, but he remains free. (Applause.) Who could buy these superb consciences, Rabelais, Molière, Pascal? But the attempt is nonetheless made, and the result is grim. The monarchy is some kind of terrible suction of the vital forces of a nation; historiographers give kings the titles of fathers of the nation and fathers of letters; everything is held together in the disastrous monarchical whole; Dangeau, flatterer, notes this on one side; Vauban, stern, notes it on the other; and, for example, in what is called “the great century,” the way in which kings are fathers of the nation and fathers of letters leads to these two grim facts: the people without bread, Corneille without shoes. (Long applause.)
A dark stain on the great reign!
This is where the confiscation of property born of labor leads, whether this confiscation weighs on the people or on the writer.
Gentlemen, let us return to the principle: respect for property. Let us recognize literary property, but at the same time, let us establish the public domain. Let us go further. Let us expand it. Let the law give all publishers the right to publish all books after the death of the authors, on the sole condition of paying the direct heirs a very small royalty, which in no case exceeds five or ten percent of the net profit. This very simple system, which reconciles the writer’s indisputable property rights with the equally indisputable right of the public domain, was proposed in the 1836 commission by the person speaking to you at this moment; and this solution, with all its details, can be found in the minutes of the commission, published at the time by the Department of the Interior.
Let us not forget that there are two principles at work here. The book, as a book, belongs to the author, but as a thought, it belongs—and the word is not too broad— to humankind. All minds have a right to it. If one of the two rights, the right of the writer and the right of the human mind, were to be sacrificed, it would certainly be the right of the writer, for the public interest is our sole concern, and all, I declare, must come before us. (Numerous signs of approval.)
But, as I just said, this sacrifice is not necessary.
Ah! Light! Light always! Light everywhere! The need for everything is light. Light is in the book. Open the book wide. Let it shine, let it do its work. Whoever you are who wants to cultivate, enliven, edify, soften, appease, put books everywhere; teach, show, demonstrate; multiply schools; schools are the bright spots of civilization.
You take care of your cities, you want to be safe in your homes, you are concerned about this danger, leaving the streets dark; consider this even greater danger, leaving the human mind dark. Intelligence is like open roads; it has comings and goings, it has visitors, with good or bad intentions, it can have unfortunate passersby; a bad thought is like a thief in the night, the soul has criminals; bring light everywhere; do not leave human intelligence of those dark corners where superstition can nestle, where error can hide , where lies can lie in wait. Ignorance is twilight; evil lurks there. Think about lighting the streets, yes; but think also, think above all, about lighting the minds. (Prolonged applause.)
This requires, of course, a prodigious expenditure of light. It is to this expenditure of light that France has been devoted for three centuries. Gentlemen, allow me to say a filial word, which is in your hearts as well as in mine: nothing will prevail against France. France is of public interest. France rises above the horizon of all peoples. France rises on the horizon of all peoples. Ah! they say, it is daybreak, France is here! (Yes! Yes! Repeated bravos.)
That there may be objections to France is surprising; yet there are some; France has enemies. They are the very enemies of civilization, the enemies of books, the enemies of free thought, the enemies of emancipation, of examination, of deliverance; those who see in dogma an eternal master and in the human spirit an eternal minor. But they are wasting their efforts; the past is past, nations do not return to their vomit, blindness has an end, the dimensions of ignorance and error are limited. Accept this, men of the past, we do not fear you! Go ahead, do it, we are watching you with curiosity! Try your strength, insult ’89, depose Paris, condemn freedom of conscience, freedom of the press, freedom of the tribune, condemn civil law, condemn the revolution, condemn tolerance, condemn science, condemn progress! Do not tire! Dream, while you’re at it, of a Syllabus big enough for France and a snuffer big enough for the sun! (Unanimous acclamation. Triple round of applause.)
I do not want to end on a bitter note. Let us rise above and remain in the unchanging serenity of thought. We have begun to affirm harmony and peace; let us continue this proud and tranquil affirmation.
I have said elsewhere, and I repeat, all human wisdom can be summed up in these two words: conciliation and reconciliation; conciliation for ideas, reconciliation for men.
Gentlemen, we are here among philosophers; let us take advantage of the occasion; let us not be shy; let us speak the truth. (Smiles and signs of approval.) Here is one, a terrible one: the human race has a disease, hatred. Hatred is the mother of war; the mother is infamous, the daughter is awful.
Let us strike back at them blow for blow. Hatred for hatred! War for war! (Sensation.)
Do you know what Christ meant when he said, “Love one another”? It means universal disarmament. It means healing the human race. That is true redemption. Love one another. It is better disarms his enemy by extending his hand than by showing him his fist. This advice from Jesus is a command from God. It is good. We accept it. We are with Christ, we ourselves! The writer is with the apostle; the thinker is with the lover. (Applause.)
Ah! Let us raise the cry of civilization! No! No! No! We want neither barbarians who wage war nor savages who murder! We want neither war between peoples nor war between men. All killing is not only ferocious, but senseless. The sword is absurd and the dagger is foolish. We are the warriors of the spirit, and it is our duty to prevent the war of the flesh; our role is to always throw ourselves between the two armies. The right to life is inviolable. We do not see the crowns, if there are any, we see only the heads. To grant mercy is to make peace. When the fateful hour strikes, we ask kings to spare the lives of their people, we ask republics to spare the lives of emperors. (Applause.)
It is a beautiful day for the outcast when he begs a people for a prince, and when he tries to use, in favor of an emperor, that great right of mercy which is the right of exile.
Yes, to conciliate and reconcile. Such is our mission, we philosophers. O my brothers of science, poetry, and art, let us recognize the civilizing power of thought. With every step that humankind takes toward peace, let us feel the deep joy of truth grow within us. Let us take pride in useful work. Let us take pride in useful work. Truth is one and has no divergent rays; it has only one synonym, justice. There are not two lights, there is only one, reason. There are not two ways of being honest, sensible, and true. The ray that is in the Iliad is identical to the clarity that is in the Philosophical Dictionary. This incorruptible ray traverses the centuries with the straightness of an arrow and the purity of dawn. This ray will triumph over the night, that is to say, over antagonism and hatred. This is the great literary miracle. There is none more beautiful. Strength bewildered and stunned before justice, the arrest of war by the spirit, this, O Voltaire, is violence tamed by wisdom; this, O Homer, is Achilles seized by the hair by Minerva! (Long applause.)
And now that I am about to finish, allow me to make a wish, a wish that is not addressed to any party, but to all hearts.
Gentlemen, there is a Roman who is famous for his obsession; he said: Let us destroy Carthage! I, too, have a thought that obsesses me, and it is this: Let us destroy hatred. If the humanities have a purpose, it is this: Humaniores litteræ. Gentlemen, the best way to destroy hatred is through forgiveness. Ah! May this great year not end Ah! May this great year not end without definitive pacification, may it end in wisdom and cordiality, and after extinguishing foreign war, may it extinguish civil war. This is the deep wish of our souls. France at this hour shows the world its hospitality; may it also show its clemency. Clemency! Let us place this crown on the head of France! Every celebration is fraternal; a celebration that does not forgive someone is not a celebration. (Loud emotion. – Repeated bravos.) The logic of public joy is amnesty. Let this be the conclusion of this admirable solemnity, the World’s Fair. Reconciliation! Reconciliation! Certainly, this gathering of all the common efforts of humankind, this rendezvous of the wonders of industry and labor, this salutation of masterpieces among themselves, confronting and comparing themselves, is an august spectacle; but there is an even more august spectacle, that of the exile standing on the horizon and the homeland opening its arms! (Long acclamation; the French and foreign members of Congress surrounding the speaker on the platform come to congratulate him and shake his hand, amid repeated applause from the entire hall.)
In my reading of the Second Treatise‘s property chapter, I do not find desert absent – that would overreach. Rather, I find desert claims functioning as morally appealing packaging for arguments with instrumental aims. These aims operate at two levels: (i) individual self-preservation in an emerging market society where social relations of production are driven by creation of exchange value for survival in an ever competitive environment, and (ii) social improvement to expand the overall propensity for creating exchange value – what Locke frames as God commanding labor to “improve” land “for the benefit of life,” giving it to “the Industrious and Rational,” and increasing “the common stock of mankind.” Locke writes at a moment when feudal relations are dissolving, and market dependencies are emerging as the structure governing access to subsistence. His move is articulating a theory to enclose commons in favour of someone who is expending labour or sacrifice or effort and being productive – through property rules – while packaging them in the intuitive and morally appealing language of deserving for individual desert, divine command, and natural right – “subduing or cultivating the earth, and having dominion, we see are joined together”; “God by commanding to subdue, gave authority to appropriate”.
The chain runs: God commands self-preservation → self-preservation requires continuous production → production requires continuous labour → therefore labour deserves rights → these rights are enclosures (which provide access to means of self-preservation as a matter of transaction capacity) and hence, property rights. The weight, thus, rests on self-preservation and its consequences (including “preservation of mankind” through increasing the common stock), not on effort or exertion as possessing intrinsic moral value. How self-preservation got linked to continuous production, which got linked to labour, and ultimately provided a connection to “property” which is the bounty to ensure self preservation, is not appropriately explained by Locke or Lockeans.
As the previous piece explained, self-preservation got linked to a need for continuous and self-expanding notion of production (resulting in accumulation) only in a particular epoch where through a period of transition, humans were dis-embedded from their means of subsistence, and were forced to labour and be productive for self-preservation. Productive labour is deemed “valuable” (which I shall explore in the next piece) solely because of the prevalence of this epoch, and not for any intrinsic worth that it embodies. Touting it as god’s command ignores this factual-historical reality. Moreover, Locke, no where explains, why property or enclosure is the rightly “deserved” reward for the “labour” extended, and intuitively assumes it.
When Locke writes that someone who takes “the benefit of another’s pains, which he had no right to” [§34] commits a wrong, this is a desert formulation. But what and why are these “pains”? Notice the grounding: “the penury of his condition required it of him” [§32]; “God commanded, his wants forced him to labour” [§35]. These pains are efforts compelled by preservation necessity in prevalent social relations, where such preservation (remember “safety first”?) increasingly requires productive appropriation creating exchange value. The wrong isn’t purely about respecting individual effort as such – it’s about taking what someone’s survival needs forced them to produce and they need for their own preservation. Desert is real in Locke, but it’s an instrument towards preservation as against a moral reward for effort (for any simpliciter non instrumental moral reason, as a justification with any intrinsic reasoning for itself). One deserves the fruits not because exertion is intrinsically morally worthy, but because one needs them to survive in a market society, and one’s condition (hence god’s command) forced one to produce them, apart from it adding social value to the world (to whatever extent that is). Labor matters because it produces survival-necessary mechanisms in the relevant epoch, not because mixing one’s efforts with objects carries intrinsic moral significance which is de hors any explanation.
Further. §28 states: “The Grass my Horse has bit; the Turfs my Servant has cut; and the Ore I have digg’d in any place where I have a right to them in common with others, become my Property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my Property in them.” The servant performs the physical labor of cutting turfs. The servant’s preservation needs drove the effort. Yet the master owns the product as initial entitlement, without any contract or transfer. If property followed from personal desert, the servant should own. Locke could save appearances by invoking contractual transfer, but he doesn’t. He simply asserts master’s ownership. This makes sense if property follows from organizing productive appropriation – the master owns because he directs the productive deployment of labor (his own, his servant’s, his horse’s) toward creating exchange value. In my reading, Locke uses “one’s labor” to mean the labor one owns, not the labor one performs. Some argue this to be the naturalized reminiscent of feudalism still prevalent to an extent when Locke was writing, and not a foundation for employment relations that came much more subsequently. However, I believe, Locke assumes production relations similar to employment from the outset, embedding them in the state of nature itself. The framework concerns productive deployment, not rewarding individual exertion, simplicter. Also, I don’t think this is about slavery or coercion. Chapter IV explicitly distinguishes slavery and clarifies that men sold themselves “only to drudgery, not to slavery” [§24], with masters lacking arbitrary power. The servant relationship represents voluntary employment, yet master still owns as initial entitlement without requiring contractual transfer.
I see a functional role of labor in passages where Locke says labor “puts the difference of value on everything” [§40], “makes the far greatest part of the value of things, we enjoy in this World” [§42], and “puts the greatest part of value upon Land” [§43]. The language is consistently descriptive of function rather than prescriptive of entitlement based on effort, per se.
Locke measures this value through market exchange rather than use-value or subsistence. §43 is “the benefit mankind receives from the one in a year” measured by what it “is worth” versus what “an Indian received from it were to be valued, and sold here; at least, I may truly say, not one thousandth”. This completely orients toward creating exchange value. Even §50’s discussion of money supports this: gold and silver have value “only from the consent of Men,” yet “Labour yet makes in great part the measure” of value [§50].
Locke also says that Americans are “rich in Land, and poor in all the Comforts of Life” [§41] despite laboring, because they lack “improving it by labour.” An American “King of a large and fruitful Territory there, feeds, lodges, and is clad worse than a day Labourer in England” [§41]. Native Americans perform labor through hunting, gathering, and cultivation. They certainly exert effort. Their preservation needs certainly force labor. Yet Locke says they lack “improving” labor and therefore remain poor despite working. Americans labor and remain poor while English day-laborers – who don’t own land and work for wages – enjoy superior material conditions. In my reading then, what matters isn’t effort but productive value-creation organized within specific social relations. In this process he seems to naturalize a conception of “value” that is prevalent and relevant to his time (to the social relations constituting his mindset) as against anything else. What counts as “valuable” labor is determined by whether it’s organized within the market structures emerging in his historical moment, not by effort or productivity in any abstract sense. This is a value theory of labour: desert seems intuitive because labor creates “value,” but what constitutes “value” is itself determined by social relations preceding and constituting “value”.
This connects to a deeper problem with claiming market valuations, through rights to exclude (which are then transacted through licenses or assignments) measure what workers deserve, simpliciter. There are several problems with this approach. First, whether someone develops valuable marketable skills depends largely on morally random factors like their genetic makeup and the family and social circumstances they were born into – things they didn’t choose. Second, what the market values at any given moment reflects social factors that have little to do with moral merit, such as current consumer preferences and what labor or skills happen to be available from other workers. Third, the price something commands in the market isn’t just about a person’s abilities and what society wants; it’s also heavily influenced by various legal and institutional structures that determine how much bargaining power different people have in the marketplace – factors that have nothing to do with what someone morally deserves.
Property rights, in Locke’s text, seem instrumental to me because he says that without appropriation, resources “could be of no use, or at all beneficial to any particular Man” [§26]. “He who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind… he, that incloses Land and has a greater plenty of the conveniences of life from ten acres, than he could have from an hundred left to Nature, may truly be said, to give ninety acres to Mankind” [§37]. This appeals to social consequences: increased “common stock,” “plenty,” more “conveniences of life.” He further links “subduing or cultivating the Earth” with “having Dominion” [§35], showing that he values productive improvement rather than effort per se. The “enough and as good” proviso [§§27, 33] preserves others’ productive opportunities. The common stock principle [§37] makes appropriation legitimate only when it increases general benefit.
Moreover, the spoilage limitation [§§31, 46] grounds property in actual sustenance (self-preservation needs rather than unlimited accumulation. These are preservation-based constraints.
I don’t think desert or reward or deservingness is the justification itself. I think it’s a consequence of social relations that make it compulsory, and hence convincing, to link effort or labour to some kind of reward through conferment of something valuable that can provide a link to click to access resources for needs of sustenance/ self-preservation (be it exchange value through some determined form of fair compensation that is socially provided, or self-expanding market determinant property rights (which have been more so criticized for being a circular justification)). It comes across as convincing rhetorical packaging. Just as “God commanded” or “natural reason” provides intuitive force, labor-mixing language, in a social situation where access to basics are stripped off, and labour is a way of getting access to sustenance, provides intuitive force for property rules which aim towards expanding overall production of exchange value – both for individual self-preservation in market relations and for social improvement through increasing the common stock – without doing genuine desert work in the foundational sense.
And there’s an internal tension: for Locke, the liberty that an individual possesses in his person is inalienable [§23], while the argument from self-dominion is often used to justify conceptions of legal ownership that include the right to alienate. Locke immediately uses self-ownership to create transactable property rights. Self-ownership, in my reading, thus seems to be functional – it explains the technical process by which appropriation occurs in Locke’s theory to create value that fulfills preservation needs and conveniences of life, as against having any intrinsic moral value in itself.
By framing property as arising from isolated acts of individual productive labor-mixing with nature, Locke obscures that what makes labor “productive” or “valuable” is determined by a comprehensive system of social relations – the market dependencies, competitive imperatives, employment structures that capitalism creates. The framework presents isolated individuals mixing labor with unowned nature [§§26-28], when what’s actually happening is systemic transformation of social relations that creates certain behaviors as necessary for survival. What appears as individual choice – to labor productively, to improve land, to enter employment – is actually compulsion generated by transformed property relations that render access to means of subsistence market-dependent, and hence creation of maximum exchange value imperative for survival. Locke is just theorizing a further bait – through enclosures – to make sure labour is performed as it would increase overall common stock that generates value (meaning exchange value).
Thus, the preceding post showed that labor became “valuable” and “productivity” became meaningful only because of specific historical transformation – when market-dependence made labor-for-exchange-value a survival imperative – meaning “value” itself was constituted by these new social relations, not discovered as a natural property or derived from any intrinsic moral worth related to effort or industriousness. It is relevant only because it is labour that is “productive”, and not anything else, that now helps (or is useful to) realize access to conveniences of life (as access to means of subsistence is linked to it), and the more productive one is, the better they sustain in a competitive society. This means desert claims based on labor or productivity only seem intuitively compelling because we’re already embedded in social relations where productive labour equals access to means of survival; the moral force of “labor deserves reward” derives from social conditions where not-rewarding-productive labour with value would undermine the social relations of production as source of access to basics (which feudal lords competing for now “free” peasants conceptualized by dispossessing and claiming absolute control of land (through leasehold arrangements), as explained in the preceding part).
Locke and Lockeans present the causal chain as: Labor (intrinsically valuable and morally worth) → Desert → Property rights. But the actual order, revealed by historical analysis, runs: Transformed property relations → Labor becomes “valuable” (survival-necessary) → Desert claims become intuitively appealing → Used to justify property rules and enclosures (as bounty for labour). Desert presupposes what it claims to ground. Labor doesn’t possess intrinsic value that naturally generates property rights; rather, labor became “valuable” in the relevant sense – only because the transformation explained in the preceding post made it so. When Locke argues that labor-mixing creates property rights, he’s not articulating transhistorical truth but naturalizing historically specific compulsions – theorizing as eternal what the preceding post showed was created – showing that now that productive labour is a compulsion one can make it the subject of enclosure by adverting it some “value” for purposes of exchange enabling it to be a source of realizing the means of subsistence and subsequently, conveniences of life. Are enclosures that are then transactable through exchange the only source of sustenance though?
To conclude, the moral link between labor and desert may be more historically contingent than we typically assume. In pre-capitalist contexts, labor wasn’t primarily understood through desert frameworks at all – people worked the land as embedded participants in households and communities, where “return” meant participation in a shared form of life rather than individually deserved compensation for discrete labor inputs. The desert-for-labor intuition intensifies precisely under specific conditions: when labor becomes alienated and commodified, when survival depends on selling labor time, when work is experienced as sacrifice rather than embedded activity, and when there’s constant anxiety about whether one is receiving “fair” compensation (and whether enclosure/property is the best mode of providing “fair” compensation). In other words, the moral urgency of “I deserve X for my labor” emerges from the very conditions where labor is separated from life and becomes something one must do for others who control resources. The desert framework, rather than being an intrinsic moral truth about productive activity, appears to be ideology generated by the material circumstances of capitalism itself – we must believe labor deserves return because under market dependence, that transactional logic and imputing such “value” to productive labour, is the only mechanism through which we can claim access to subsistence.
Capitalism ¹ Liberty : Notes from Wood and Brenner
The conventional narrative posits that capitalism arose naturally from expanding trade, urban development, wealth accumulation, or technological advancement – elements supposedly present throughout history, requiring only liberation from feudal constraints which had stumbled their pre-presence. Ellen Wood’s The Origin of Capitalism and Robert Brenner’s Agrarian Class Structure and Economic Development and Property and Progress: Where Adam Smith Went Wrong, reveal a dramatically different story: capitalism emerged from a specific transformation of social property relations in the English countryside, creating for the first time markets operating not as opportunities but as imperatives – mechanisms compelling certain behaviors on pain of elimination. This distinction explains why capitalism emerged specifically in the English countryside rather than in societies with more extensive commerce, and illuminates why capitalism represents not natural liberation of economic behavior but creation of novel compulsions operating through apparently impersonal (and hence, “un-free” contrary to libertarian narrative) market forces.
The Concept
No quantity of accumulation – from theft, imperialism, commercial profit, or even labor exploitation – by itself constitutes capital or produces capitalism. Roman senators, Venetian merchants, Spanish conquistadors accumulated vast wealth without creating capitalism. What transforms wealth into capital is not quantity but social form: property relations generating capitalist “laws of motion” – imperatives of competition and profit-maximization, compulsion to reinvest surpluses, systematic requirement to improve labor productivity and develop productive forces for subsistence. It is when “safety first” gets linked to constant production, fundamentally reinventing social relations of production.
This means capitalism cannot be defined by the presence of markets simpliciter (which have existed for millennia), nor by trade (connecting distant civilizations in antiquity), nor even by profit-seeking behavior (motivating merchants throughout recorded history to “buy cheap and sell dear”). Rather, capitalism is defined by specific social relations that create systemic imperatives for continuous accumulation and productivity improvement
Marx identified the critical transformation in English countryside. In Marx’s account, the critical transformation occurred in the English countryside through the expropriation of direct producers (Wood, p.40). Landlords derived rents from capitalist tenants’ commercial profits. These tenants were actually leaseholders: after absolute ownership was expropriated in lords’ favor, rents were levied competitively upon lease transfers, exchanged for freedom from serfdom and common law rights in King’s Courts. Meanwhile, numerous small producers underwent dispossession and became wage laborers. Marx regards this rural transformation as the authentic “primitive accumulation” not because it created a critical mass of wealth – numerous societies had accumulated substantial wealth through conquest and trade – but because these social property relations generated novel economic imperatives, particularly the compulsions of competition and a systematic requirement to develop productive forces, producing new laws of motion unprecedented in human history. (Wood, p.40).
Polanyi recognized that only in “market society” do economic institutions separate from social relations, with society becoming market’s “adjunct” rather than economy embedded in society (Wood, p.26). Without “protective countermoves,” “human society would have been annihilated.” According to Wood, however, Polanyi’s explanation contained technological determinism – arguing complex machinery necessitated commodifying labor. This, according to Wood, inverts reality. She argues that radical social relations transformation preceded industrialization (Wood, p.29) – Capitalist imperatives drove machinery development, not the reverse.
What transpired in the English Countryside?
Through competitive political accumulation, particularly responding to the emerging French monarchy, Anglo-Norman lords created a more centralized feudal state than existed elsewhere in Europe at that time. By organizing through a national monarchical state that could discipline the aristocracy, English lords achieved unusually high cooperation in operating their decentralized surplus extraction system and in military ventures (Brenner, p.20-21).
A critical institutional innovation was imposing a national common law system binding the lords themselves. This system granted all free persons, including legally free peasants, access to royal courts while excluding unfree peasants and relegating them to manorial jurisdiction. The resulting enhancement of lordly power enabled English lords to experience an economic golden age from the late twelfth through early fourteenth centuries – precisely when French lords faced declining feudal revenues due to peasant gains. English lords imposed tighter serfdom with state assistance, maintaining extraction levels right until the Black Plague (Brenner, p.21).
The catastrophic post-plague population collapse undermined coercive extraction. The drastically altered man-land ratio caused lordly cooperation to collapse under competitive pressures for scarce tenants (Brenner, p.21). The 1381 revolt proved watershed – peasants streamed away, lords competed offering better terms and legal freedom through written manor roll copies (contracts between legal equals). By the fifteenth century’s second quarter, most English peasants had won freedom and paid reduced rents.
This was the social condition that created lords’ existential threat. Unable to reimpose feudal levies, they deployed their “trump card”: the powerful monarchical state they could now repurpose (Brenner, p.22). With Tudor state assistance, lords asserted that customary land remained subject to arbitrary, variable rents upon transfer – transforming it into commercial leasehold, effectively lords’ own property, as against peasant proprietorship that was prevalent in France. State power suppressed sixteenth-century peasant revolts vindicating customary rights in the land, separating the peasants from their means of subsistence. Lords cut short peasants’ push to win not just freedom but fixed payments and inheritance rights, thereby establishing their own property rights, while severing tenants from full means of subsistence, rendering them market-dependent, as the cost of freedom (Brenner, p.22). This is why it is sometimes referred to as “freedom in the double sense”.
Critically, English lords understood themselves as acting within established feudal tradition, merely reaffirming their customary prerogative to impose arbitrary levies on customary tenants. Their objective was not creating a new system but preventing peasants from consolidating possessory rights – fixed dues and inheritance rights – that would eliminate lords’ ability to obtain economic returns from customary land. Given population growth’s inflationary pressures, consolidation of such peasant rights threatened lords’ capacity to extract any meaningful rent whatsoever (Brenner, p.22).
The epochal yet unintended consequence was – subjecting tenants to competitive lease bidding, imposing necessity to abandon subsistence production and adopt capitalist reproduction rules (Brenner, p.22-23). Once rendered market-dependent, emerging farmers had no alternative but to alter their “safety first” strategy – Production and maximal accumulation to win rent-competition was initiated as that was the only way of being safe from being famished. This transformation was fundamentally political – lords inadvertently created capitalism while preserving feudal privileges.
This transformed into what Robert Brenner identifies as a classical landlord-capitalist tenant-wage labor structure (Brenner, p.35). Landholding in England was unusually concentrated. Large landowners controlled an unusually substantial proportion of land under conditions enabling them to deploy property in novel ways (Wood, p.102-103). An unusually large proportion of land was cultivated not by peasant-proprietors but by tenants – a pattern reflected linguistically in the fact that the word “farmer” originally and literally signified “tenant,” as the phrase “farming out” continues to indicate.
What English landlords lacked in “extra-economic” powers – juridical, military, political powers continental lords employed – they compensated for through increasing “economic” powers from controlling land and structuring tenant relationships (Wood, p.102-103). Their income depended on tenants’ capacity to produce profitably and remit rent from that profit. Both landlords and tenants came to depend on the market in historically unprecedented ways merely to secure conditions of their own social reproduction (Wood, p.56).
“Rules for reproduction” captures how property relations determine logic by which actors must operate to survive and reproduce themselves – they constitute individual action. Reduced to market dependence, commercial tenants had no alternative but to adopt “production for exchange,” maximizing profits through specializing, accumulating, innovating (Brenner, p.29). They abandoned peasant rules: producing numerous children for insurance, subdividing holdings. Customary leases ultimately transformed into economic leases, and property itself became an instrument of economic exchange as against ownership by conquest.
The consequence was a highly productive agrarian sector in which landlords and tenants alike became preoccupied with “improvement” – the enhancement of land’s productivity for profit (Wood, p.109). This dynamic initiated an entirely novel historical process: an unprecedented rupture with old Malthusian cycles, a process of self-sustaining development, new competitive pressures that generated their own effects upon the requirement to increase productivity, further concentration of landholding (Wood, p.56). Where other European societies remained trapped within cycles of expansion and crisis, England achieved breakthrough to sustained growth – not through technological superiority or greater commercial development but through transformed social relations imposing systematic imperatives for productivity improvement.
This makes clear that capitalism does not simply liberate pre–existing entrepreneurial tendencies or rational economic behavior. Rather, it creates entirely new compulsions that reshape behavior across multiple domains, production, investment, family formation, demographic patterns. Understanding these transformed rules for reproduction illuminates why the absence of such transformation in other contexts, most notably France, failed to generate capitalist dynamics.
French Contrast
French peasants enjoyed land at fixed rents. Where English landlords obtained rent increases through cooperation in improvements increasing output, French lords extracted larger shares of declining output. The paradox: customary property rights meant poverty and backwardness. In England, absence of secure peasant rights facilitated development (Brenner, p.47). Self-preservation became linked to production and commodifying labor.
The peasant proprietor faced relatively little pressure to operate his plot as profitably or efficiently as potential competitors in order to survive, because no direct mechanism existed through which such competitors could “defeat” him (Brenner, p.44-45). Unlike a tenant, the peasant proprietor need not provide a level of rent equal to what a landlord might obtain from any alternative tenant or face eviction. Unlike the independent artisan within a competitive urban environment, he need not produce cheaply enough to sell goods profitably at market price or face business failure and thus famine, as acquisition of means of subsistence was dependent on the market and not through basic proprietorship or general ability (but specialization). All that survival required for the peasant proprietor (assuming food production) was sufficient output to provide for family subsistence and to meet tax obligations and generally fixed customary rents, which could often be supplemented through wage labor (Brenner, p.45).
The peasant proprietor could resist market pressures simply by maintaining possession, by producing sufficient for subsistence, by supplementing farm income with wage labor as necessary. He need not maximize profit or improve productivity competitively. He could survive through satisficing rather than optimizing. Surplus could be reinvested for luxury, but adopting specialization and more productive mechanisms meant divorcing from means of subsistence, which was antithetical to the “safety first” approach. A market for basics necessarily came with the burden of risk.
Possessing means of subsistence shielded peasants from competition (Brenner, p.66). But why not pursue the gains from trade anyway, as rational homo economicus theory predicts? Here, Brenner identifies “the fatal flaw of Smithian trans-historical micro-economics”: Smith specified gains from specialization but “failed to consider and investigate the other side of the coin – potential costs” (Brenner, p.67). The primary constraint: “safety first.” Bad harvests were unpredictable, leading to subsistence crises. Peasants specializing in non-food crops faced incalculable danger of being squeezed between high food costs and low output returns – risking famine (Brenner, p.68). Given starvation as business failure’s cost, peasants adopted “safety first.” Large families provided insurance but reduced surplus, creating intolerable competitive disadvantage if specializing. No incentive is needed to not be willing to starve – it is an imperative.
Contrarily, In Adam Smith’s explanation, as merchants offer lords irresistible luxuries previously unavailable, lords, at an individual level dismiss retainers, expel peasants, offer commercial leases – producing capitalism. But Smith accomplishes this only by ignoring feudal social-property relations as constraints (Brenner, p.70-71). Smith’s lord acts rationally only if capitalism already exists – he presupposes its existence, reflecting lack of understanding the socially curated and constitutive nature of humans. This is methodological individualism failing to grasp how social structures constrain action.
Opportunity to Imperative
Throughout history, direct land access – through ownership, customary rights (common pool use rights Wood specifically recounts, before “improvement” led to “enclosures”), or traditional arrangements – was given for agricultural producers. In England, access became market-mediated, contingent on competitive success. The emergence of “economic rents” – determined by market conditions, not custom – exemplifies this transformation (Wood, p.103-104). Surveyors calculated “unearned increment” accruing to customary tenants paying below market-determined value – early capitalist rationality reducing social relationships to abstract monetary calculations.
The triad of landlord, capitalist tenant, wage laborer emerged. With wage labor growth, the same process created highly productive agriculture but also increasing propertyless mass constituting both wage-labor force and domestic market for cheap consumer goods – “a type of market unprecedented in history” (Wood, p.106). This mass market of the poor became central to industrial capitalism.
Improvement, Enclosure, and Locke’s Labour Producer Theory
The concept of “improvement” encapsulates the transformation in economic mentality and practice that accompanied agrarian capitalism. The word itself, in its original signification, denoted not merely “making better” in a general sense but specifically meant to render something productive of monetary profit, especially to cultivate land for profit – derived from the old French for “into” (en) and “profit” (pros) (Wood, p.109).
By the seventeenth century, the word “improver” designated someone who rendered land productive and profitable, especially through enclosure or waste reclamation. In the eighteenth century, “improvement” in both word and deed achieved its full articulation. The concept reveals how capitalism transforms the very criteria by which we evaluate resource utilization – from serving human needs or community welfare to generating profit.
An extensive new body of literature emerged in the seventeenth century elaborating techniques and benefits of improvement (Wood, p.109). This literature operated not merely at the technical level but functioned profoundly ideologically, disseminating a novel conception of humanity’s relationship to land and nature. Improvement became a major preoccupation of the Royal Society, which assembled England’s most prominent scientists – including Newton and Boyle – with members of ruling classes such as the first Earl of Shaftesbury and his protégé John Locke, who himself was a follower of Pierre Nicole (Wood, p.109-110).
Improvement did not depend primarily upon significant technological innovations. Generally, it involved new developments in farming techniques or refinements of established ones: convertible husbandry, crop rotation, drainage (Wood, p.110). The agricultural revolution that preceded industrialization was not primarily a technological revolution but a social one. The same techniques had often been known previously; what changed was the systematic compulsion to apply them.
However, improvement signified something more fundamental than novel techniques: it signified new forms and conceptions of property (Wood, p.110). “Improved” farming entailed enlarged and concentrated landholdings. It necessitated the elimination of customary practices that interfered with the most productive use of land – “productive” now defined strictly in terms of marketable output and profit. This was the first showcase of classical liberalism: a curb on regulation (through customary rights) or interference in the “market” to make it pure competition.
Peasants had employed various means of regulating land use in the interests of village communities since time immemorial (Wood, p.110-111). They restricted certain practices and granted certain rights not to enhance landlord wealth but to preserve the peasant community itself, perhaps to conserve land or distribute its fruits more equitably, often providing for the community’s less fortunate members. Distributive thinking was present but would be replaced. These practices reflected an entirely different rationality than capitalist improvement – one oriented toward community reproduction, equity, and sustainability rather than profit maximization.
Even private ownership had typically been conditioned by such customary practices, granting non-owners certain use rights to property owned by others, making it a means of subsistence for most. In England: common lands with grazing rights or rights to collect firewood; various use rights on private land, such as rights to collect harvest leavings during specified periods; traditional arrangements for crop rotation requiring coordination among landholders (Wood, p.110-111). Commons were common.
From the standpoint of improving landlords and capitalist farmers, land required liberation from any such obstructions to their productive and profitable property deployment. Between the sixteenth and eighteenth centuries, increasing pressure developed to extinguish customary rights that interfered with capitalist accumulation (Wood, p.111). This could entail disputing communal rights to common lands by claiming exclusive private ownership; eliminating use rights on private land; or eliminating customary rights of smallholders’ possession without unambiguous legal title.
This reflected a transformation in the understanding of property – from means of subsistence (access to means of subsistence) to means of maximal production to generate maximum profit, for maximum accumulation, to secure subsistence in a competitive environment. In all these cases, traditional conceptions of property required replacement by new, capitalist conceptions – not merely as “private” but as exclusive (Wood, p.111). This represents a first hint of the concept of allocative efficiency. Other individuals and the community required exclusion through elimination of village regulation and restrictions on land use, especially through extinguishing customary use rights. Property had to become absolute, exclusive, and alienable – a bundle of rights deployable solely according to owner’s calculation of profit, unencumbered by social obligations or community claims. This points toward a transformed meaning of property rights. What about the emergence of “intellectual property rights” around this time?
Enclosure is often understood simply as the physical fencing of common land or open fields. However, enclosure signified not merely physical demarcation but the extinction of common and customary use rights upon which numerous people depended for their livelihood (Wood, p.111).
The first major wave of socially disruptive enclosure occurred in the sixteenth century, when larger landowners sought to expel commoners from lands that could be profitably deployed as pasture for increasingly lucrative sheep farming. Contemporary commentators attributed to enclosure, more than any other single factor, responsibility for the growing phenomenon of vagabondage – those dispossessed “masterless men” who wandered the countryside and threatened social order.
A novel form of enclosure movement emerged in the eighteenth century: Parliamentary enclosures (Wood, p.112). The extinction of troublesome property rights that interfered with landlord accumulation now transpired through acts of Parliament. Nothing testifies more clearly to the triumph of agrarian capitalism. The state itself became the instrument for dispossessing commoners and transforming property relations. Is this neo-liberalism? So much so for law being constitutive, as against social relations being constitutive of the law.
Pressures to transform property manifested themselves in court cases, in conflicts over specific property rights (Wood, p.112). In such cases, customary practices and claims often confronted directly the principles of “improvement,” and judges increasingly recognized reasons of improvement as legitimate claims against customary rights that had existed for as long as anyone could recall. Where custom, tradition, and community need had once justified certain rights and practices, profit and productivity now became the standard.
Locke’s property theory, batting for enclosure, hinges on “improvement” (Wood, p.113-114). Locke commences with the proposition that God “hath given the world to men in common” (II.26), but proceeds to demonstrate how individuals came to possess property in particular things (Wood, p.113). Such private, individual property constitutes a God-given natural right. Men own their own persons, and the labor they perform is therefore their property. A natural right of property is established when a man “mixes his labor” with something, thereby removing it from its natural state or altering its natural condition. The theme permeating his discussion was that the earth exists to be rendered productive and profitable, and this is why private property, which emanates from labor, supersedes common possession (Wood, p.113-114).
This was the first articulation of any value – later to be revealed as exchange value – emerging out of production, in an environment where increased production and improvement was the only means of subsistence. Locke calculated “99/100” should be attributed to labour rather than nature. Crucially, Locke considers exchange value, not use value (Wood, p.114). Something particularly revealing emerges upon careful examination of Locke’s argument (Wood, p.114-115). There exists something initially appealing about the proposition that labor constitutes the source of value and the basis of property – it appears to ground property in actual productive activity rather than arbitrary power. However, something profoundly problematic becomes evident. No direct correspondence exists between labor and property because one man can appropriate another’s labor. The transferability notion becomes crucial. He can acquire a property right in something by “mixing” with it not his own labor but the labor of someone else whom he employs.
It appears the issue for Locke concerns less the activity of labor as such than its profitable deployment or its link with production/productivity. In calculating the value of the acre in America, he addresses not the Indian’s expenditure of effort but the Indian’s failure to realize profit. The issue is not the labor of a human being but the productivity, rendering exchange value, and its application in commercial profit (Wood, p.114-115), increasing common stock. (More on Locke in the next post).
What then is Capitalism?
Only in capitalism are legally free direct producers completely dispossessed, surplus labor appropriated through purely “economic” means (Wood, p.99). Workers have common law rights enforceable in King’s Courts yet must sell labor power because separated from means of production. Markets existed throughout history, but capitalism’s market possesses unprecedented function: the principal determinant and regulator of social reproduction (Wood, p.100). Once food production became subject to market imperatives, once land access became market-dependent, foundation was established for generalizing market dependence throughout society. Coercion is hidden and is the real invisible hand.
This unique system of market dependence possesses specific systemic requirements and compulsions shared by no other mode of production: the imperatives of competition, accumulation, and profit-maximization, and consequently a constant systemic requirement to develop productive forces (Wood, p.100). These imperatives signify that capitalism can and must constantly expand in ways unlike any other social form. It can and must constantly accumulate, constantly seek new markets, constantly impose its imperatives upon new territories and new spheres of life.
Crucially, agrarian capitalism rendered industrialization possible, not the reverse (Wood, p.146). English agriculture’s transformation was primarily social revolution – transformed property relations and productive imperatives, not technological. Techniques like convertible husbandry, drainage, crop rotation weren’t radically novel but systematic applications of known methods. What changed was social imperatives compelling their systematic application. Technology didn’t create capitalism; capitalism created the imperative for technological improvement. And this does not mean technology would not have developed but for capitalism, but just that it would have developed over a longer period of time de hors forces of compulsion.
In pre-capitalist societies with markets, the market was opportunity to invest surplus. But it didn’t determine social reproduction or impose systematic compulsions. Only when property relations transformed such that access to means of production and subsistence became market-dependent did the market become imperative– a force commanding behaviors under threat, generating capitalism’s distinctive dynamics: relentless productivity improvement, systematic accumulation, continuous revolutionizing of production, constant expansion, at the costs of whatever comes in it way – subsistence of those who are unable to win this competition, environmental impact, impact on human development, etc.
If capitalism arose from particular historical transformations rather than inevitable progress, it can potentially be transformed through creating different social relations. Capitalism is not history’s endpoint but a specific mode of production with a specific origin that may have a specific end.
A few months ago, during a visit to my hometown, Phalodi in Rajasthan, a muse found me in the most ordinary (yet dearest) of moments—while speaking with my grandmother and my sister. Yes. As my grandma spoke of evil eye and my sister spoke of wish-fulfilling prophesies, I couldn’t help but wonder how deeply our thinking and behaviour are shaped by the assumption that words carry stable, definite meanings—meanings that are somehow validated or approved by some higher authority, some final source, even God.
How the Conversation Began?
So, it happened that I was sitting with my sister one day, talking about the usual odd mix of things—wishes, luck, and the darn dreaded Buri Nazar (evil eye) that our grandmothers always warned us about.
Somewhere between laughter and sincerity, we came to wonder — how much of our beliefs rests on assumptions we rarely pause to probe. Assumptions that things begin at a fixed point and end at another, that every event must have a definite, definable, describable cause, that truth can always be tethered to some neat and knowable explanation.
We like to centre ourselves in a story or speech like that: I suffered because of X, or I will be blessed if Y happens. Like … ‘This’ happened because of ‘that’, period. End of story. The speaker, the wish-maker, the sufferer—always pivot around which meaning is spun. Yet in clinging to these word-ly anchors, we often miss the messier (and perhaps more beautiful reality?) that meaning is never still, singular, stable. Language itself is fluid, restless, protean. And maybe life, like language, resists the comfort of fixed points. There are far more complex networks of interdependencies around us that cannot be escaped easily through words.
That being said, I do ‘intuit’ why it happens- too much faith in the words having singular meanings. For one, language—the way we have been taught to take it— makes us believe that the speaker/listener is the centre of the speech; That their words have some definite meaning as the speaker intends. It tricks us into thinking that meaning originates from a singular source, i.e. us, and travels outward in a straight line—toward truth, impact, or divine judgment.
For example, I recently underwent some surgery, and it came at a time when other parts of my life were already in distress. At first glance, one could say (and some actually did) that “my planets aren’t aligned,” or “Maybe this is God punishing me.” But if we look at the situation differently, we can see something else entirely. That X amount I spent didn’t just disappear—it became someone’s salary. The amount I donated to a hospital helper may have been used to buy vegetables, pay rent, or care for someone else. Seeing this way changes the equation. Doesn’t it? Well. This way, my pain, my suffering, or more generally my ‘problem’, then, was not an isolated “negative” event. Instead, it was part of a much broader system of interdependence.
This reframes everything. As cliché as it may sound, things aren’t necessarily “good” or “bad” in themselves. They don’t have an intrinsic nature or value. Similarly, texts (including words, events, experiences, and things) don’t carry fixed, stable, singular, or inherent meanings. They’re always part of an ongoing circulation of meanings, relationships, and interpretations.
This reminds me of another instance that our grandmother shared with us the same day. My grandmother, that day, told me that my grandfather once said to her, “If you sleep too much in the morning, you won’t be able to sleep at night.” Later that day, when she couldn’t sleep, she took his words as a curse—as Buri Nazar. But was it so? I don’t think so. To me, this was just another instance where we assume words carry a direct, unchangeable meaning, as though someone or something—God, fate, karma—is out there eavesdropping, and then enforcing a verdict based on those words?
Take another example. Let’s say I tell someone, “You have a beautiful ring,” and the next day they lose it. If they then blame me—claiming I gave them the evil eye (it happens a lot in my town/culture)—what they’re really saying is that there’s an invisible entity that interprets my words and assigns meaning to them, entirely independent of my intention. But if that’s true, then this entity isn’t just misinterpreting my praise—it’s actively converting good intentions into harm. That’s not divine intelligence. That’s a petty and irrational being. God will get ‘the’ meaning.
This is where I see a problem with the religious and metaphysical structures that many of us inherit almost unknowingly. They tether our thinking to certain assumptions—about cause and effect, about meaning, about authority, about language, about time and space. These become, in a sense, our a priori conditions of thought and speech. And in doing so, they do not merely shape what we think or believe; they delimit what we can even think, what we can imagine believing. They circumscribe what we are permitted to say, to do, to wish, or even to desire.
Let me be clear: the problem, for me, is not with religion, nor with any particular belief system. It lies deeper—in the metaphysical faith that quietly governs our everyday use of language. We think in binaries: beginning/end, good/bad, speaker/listener, cause/effect. And we take these as natural givens. But are they? Maybe not. Perhaps they are the very traps postmodern thinkers warned us about—the illusion of stability, the tyranny of fixed meaning.
So perhaps what we need is not just new words, but new ways of thinking—ways that resist this compulsion to anchor meaning once and for all. Yet here, I run into a paradox. If words have no fixed meaning, how is it that we still communicate, write, and understand each other? Surely, there is some meaning in words, however fragile or fleeting. Or perhaps, unsettlingly, we do not need to know meanings to use them, to live through them.
Anyway, that’s a thought I’ll save for a more extended reflection in a future post. Or, in French, I would say, c’est tout!.
Have you seen the ‘About‘ section of our blog, where we featured a short rephrased poem by Rumi, the great Persian poet? If not, no problem. After some reflection, I felt it might be more meaningful—or at least more engaging—to offer an expansion and explanation of it.
But … first of all, why Rumi and this poem? Well … I have always felt a deep connection with Rumi’s poem, “A Great Wagon” (and his poems or proses in general), especially when I think about how language shapes our minds and saps our thinking.
Secondly, why choose a poem at all, since it isn’t a typical academic form? Precisely for that reason—because it resists conventional academic modes. Its very form helps unsettle and question the established patterns of thoughts.
Now, if you’re a strict rationalist who seeks logic in everything, fair warning: this might feel illogical. But, as many of us know, feelings—and much of what we do—often go beyond pure logic. As I essayed to show and even emphatically emphasise here, everything around us can be contingent, even those habits and intutions we’re taught to find most logical—like a strict sleeping schedule or waking up early.
Well … why go so far? Just ask a lover why they love, and you will get little logic in return. And maybe that’s the beauty of it. Is’t it? After all, as they say, beauty is in the eye of the beholder, and here it’s the lover who has long leapt the logical limits, driven by pure longing.
Language, like many other social systems, helps us create (dis?)order and curates our perception of the world. Yet, poetry, art, painting, dance, and similar expressions invite us to experience life beyond the boundaries of logic. Ironically, copyright law—the very system governing that creative leap—ensures this creative force remains controlled within capitalist chains. So, it becomes more imperative to examine IP law beyond the banal boundaries of logic.
But … why do I mix this IP, Rumi, love, life, and all?
Well, when I think of his poem, one verse especially stands out. Inspired by it, I’ve rephrased its spirit into an IP-themed reflection—not exactly a poem, but close. This is, above all, an invitation to go beyond logic—to encourage readers and myself to think abstractly, not lumber under the lode of logic, and to recognise the contingency of everything, including our most cherished concepts, laws, and policies.
Here’s what Rumi wrote, and I rephrased (Though I hope I haven’t infringed on Rumi’s moral rights!) …
Rumi writes in the Great Wagon
“Out beyond ideas of wrongdoing and rightdoing,
there is a field. I’ll meet you there.
When the soul lies down in that grass,
the world is too full to talk about.
Ideas, language, even the phrase ‘each other’
doesn’t make any sense.”
I’ve reimagined it and named it “The Great Leap”:
Somewhere between (and beyond) Intellectual, Property, and Rights,
There lies a space, I’ll meet you there,
Where ideas (e)merge, creativity cascades, and epistemes evaporate.
Where even the discourses dissolve, and structures that ‘make’ sense melt.
No one is regarded pirate or protected,
Even the words inventor, author, or infringer don’t exist or make sense,
Work is only understood as a deed, not a commodity to be sold or guarded, as though the world exists only to be pillaged.
We seek to meet you there—beyond the binaries of theory and practice.
This Rumi-fied spirit, I believe, should guide us—to think aloud, to explore beyond the confines of rigid language and dominant discourse, to simply muse on ideas that matter to us, hoping they resonate with others too.
Okay, that’s all for now. I’ll post a few more poems that I’ve written earlier or published at other places, mainly SpicyIP and IPRMENTLAW. See you in the next post!
(If you’ve read this far, why not subscribe to the blog and get the latest updates straight to your inbox? Just asking … 😉
The other day, thanks to a sharp young friend from NALSAR — Ruchir Anand — I ended up reading George Orwell’s 1946 essay Politics and the English Language. But why do I say “ended up”? Well, ‘tis because I hadn’t planned on it. But once I started, it felt like a lecture – a brimming mix of bitterness and brilliance -that I could not not attend.
Among many sharp observations, Orwell said something that resonated with me. He noted how certain words or expressions — despite having no clear or consistent meaning — continue to be used, either euphemistically or dysphemistically. Talking of terms like democracy or fascism, he argues, has become so emotionally charged and overused that they are routinely used (/deployed like tools) without any precise definition. Tellingly, it is done with the tacit understanding that they don’t mean anything fixed at all. One can just toss them into any argument and come out looking holy.
Of course, now I can take a train to meet and bring Derrida to the Orwellian domain. And trust me, I am tempted to, too. For one, following Derrida’s notion of différance, one could level the same charge against the entire enterprise of language itself — that all meaning is slippery, deferred, and non-existent. And perhaps, does that convincingly so. But let’s hold back, for now and focus on a narrower category: words that are inevitably imprecise, and they are so with consensus. Yet they are used, assumed, and even unabashedly understood to convey a particular meaning, good or bad.
In Orwell’s words -“Many political words are similarly abused. The word Fascism has now no meaning except in so far as it signifies “something not desirable.” The words democracy, socialism, freedom, patriotic, realistic, justice have each of them several different meanings which cannot be reconciled with one another. In the case of a word like democracy, not only is there no agreed definition, but the attempt to make one is resisted from all sides. It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using that word if it were tied down to any one meaning. Words of this kind are often used in a consciously dishonest way. That is, the person who uses them has his own private definition, but allows his hearer to think he means something quite different.“
This Orwellian insight flies in the face of intellectual property (IP) discourse, which is filled with such means that mean everything and nothing all at the same time. And if there’s one phrase that fits fine in this farrago, like a lazy politician before an election: it’s the much-bandied word: “balanced”. It goes in the same shiboleth flavours: “A balanced IP system,” “a balanced copyright framework,” “the need for balance between right holders and the public”. Pitched as self-evidently virtuous, it rarely comes with clarity.
But ask the speaker and you’ll find: it means whatever the speaker wants it to mean. After all, what is balance? For whom? When? Under what history? Hither comes a sound of silence. A loud one, my friend. The word is perhaps mightier than the magical spell — abracadabra, you say it, you’ve justified your point.
Yes, I may be biased in raising the example of “balance” — after all, it is the very subject of my PhD. (See this journal article called “Taking Copyright’s ‘Balance’ Too Seriously” where I expounded my claim in detail.) But even a brief introspection on the IP field reveals how much of its justificatory language — especially around what IP is for — is fraught with seductive yet slippery expressions.
Sample words like creativity, innovation, progress, and public interest. Lovely words, for sure. For they ring with righteous hue, sounding self-evidently good and noble. But on closer inspection, they often function — or rather, non-function — precisely as Orwell said: carrying emotional weight without definitional clarity. The speaker intentionally invokes such terms/words/expressions, thereby evading the weighty moral burden of having to exemplify the phrase they’ve uttered. Just say, “IP fosters creativity,” or “IP promotes innovation,” and voilà — the phrase earns its stand, rarely questioned, often axiomatically accepted.
The upshot is that these words are, as I like to call them, un-meant words which have managed to mean everything and nothing at once(!). And this is what makes them instrumental — and dangerously convenient —in almost any policy debate.
Of course, this isn’t unique to IP. Law and policy are full of such ‘un-meant’ words. But given how central these words/rhetorics (like the ones I flagged above) have become in global IP debates, especially endorsed through institutions like WIPO or even national IP offices, it is high time we parse the political function of such snafu signifiers. Because these signifiers — or even “noble nothings” as they are — are not just bad language. They’re politics in disguise, I posit.
So tell me, have you come across other such words in IP or law? The kind that is made to sound essential but is hollow from the inside?
Drop them in the comments. Don’t worry. I won’t misuse “transparency.” 🙂 See you in the next post.
Lately, we’ve been wondering whether this blog should be called PhilIP and Policy. Although we like the name and even have a detailed note explaining why we called it that. But something changed over the period. While we intend, try, and of course want to theorise and philosophise about IP issues, we haven’t exactly been sticking too closely to that title. Especially, if you’ve read our recent posts, you’ll notice they haven’t necessarily dealt with IP law—or even theory or philosophy in any strict sense. Instead, they’ve been more like thoughtful meanderings … or musings, if you will.
Now, this doesn’t mean we’re turning the blog into an anything-goes diary—though such spaces are important and deserve far more respect in our intellectual landscape than they usually get! It’s just that our vision for this blog is a little different: to toss questions and ideas like seeds, and to see what grows therefrom. However, upon harking back, we realised that instead of strictly theorising or philosophising IP, what we’ve really been doing is musing —musing on and around IP, wandering through the many layers of knowledge production and information regulation.
So we thought: why not rename the blog to reflect this evolving identity better? So, from here on, we’ll be calling itIP Musings. The blog name and domain name have already changed. Soon, updates in other parts will follow, and the space itself will wear this spirit more visibly. Check out the About section to learn more about who we are and what we aim to do/achieve with this space.
And now … on the name. If you didn’t already know, the word muse has a rather entrancing history, I’d say. It comes from the Old Anglo-French muser and entered writing sometime in the 14th century. As a verb, it means to become absorbed in thought; as a noun, it refers to a state of deep reflection or dreamy abstraction. Quite curious, isn’t it? So … my dear lector, isn’t “IP musing” an apposite name for this space we’re hoping to build?
That said, we still intend to anchor our reflections around IP. After all, that’s the area we’re most interested in and invested in. And perhaps (on good days), modestly qualified to comment on. With the new name, we’re giving ourselves—and officially so—the room to play and ponder. And we hope this becomes and remains a place where curiosity can cruise, ideas can breathe, questions can linger, and, more importantly, not every post needs to tie itself into a tidy academic knot. (If I can let my amateur philosopher out for a moment, I’d say this: if there truly is a journey from confusion to conclusion, what we covet here is clarity. Yes. After all, it’s the clarity of thought that lights the way—if such a journey exists at all.)
Well, that’s still not the whole story of the name. After all, just like everything else, there’s a little backstory to this title, IP Musings, too. So … a few years ago, one of us (Lokesh), along with Swaraj Barooah, had created a comic-style script series on SpicyIP called IP Reveries (which, fingers crossed, will come back soon!) It was then that we first thought of calling it IP Musings, but had to unhand the idea when we discovered a similarly titled series on Patently-O.
That said, it doesn’t appear to be in active use anymore, and more importantly, no blog or platform seems to have adopted the name. So we thought, why not reclaim it and use it for the blog? And here we are: a new name, carrying the same—perhaps even more inspirited—spirit. Because, there is something (if not everything) in a name (Sorry, Shakespeare)
Finally, before I sign off, forgive the cliché (and perhaps cheesy), but I must say it: do subscribe to the blog if you haven’t already, so you don’t miss our latest musings. And do leave your thoughts in the comments—we’d love to keep the conversation going!
A few days ago, I wrote about my experience at the National Archives of India, and a peculiar feeling which I called “archival anxiety” — or arch-xiety, if you will. Today, I have something in a similar vein to share. But, this time, it’s not from my wandering through dusty documents, but from poring over a piece of writing.
So, I just finished reading an 11-pager, fascinating piece by Prof. Jose Bellido named Intellectual Property and the Question of the Archive from a 2017 open-access handbook edited by Irene Calboli and Maria Lillà Montagnani. And, as with much of Jose’s work, it’s brimming with sharp observations and research gaps waiting to be filled, or at least, explored. I would strongly encourage our readers to check, which demands and deserves a slow reading and reflection. If nothing else, you will come out with some exquisite sentences worth quoting in full and some valuable citations related to IP history.
Finally, before I share the excerpts, I must say something about him. Jose, in addition to being a very generous and supportive scholar, is a professor at the University of Kent and one of the finest scholars working on the history of IP today. You can find more of his work here — and if you haven’t dipped into it before, you really should.
Okay, that’s it for introduction. Below are a few excerpts from his piece.
In the introduction, he writes (footnotes omitted)-
“Classified documents, patent files, disclosures, trademark records, originals, copies, collection agencies, registries, bureaucracies, proceedings, intangible properties, and access (or not)— the stuff of intellectual property (IP) is deeply connected to the institution of the archive. From family to corporate archives, from local to national and diplomatic offices, the trajectories of the intangible can be traced through such paper trails and holdings. The question— ‘What is the point of copyright history?’— was the subject of an academic conference some years ago. The answer to that question was that the point of copyright history, which could be extended to IP history, is ‘evidently’ archival. The archive— often the product of time- consuming, painstaking, frustrating, expensive, and unassuming labour— with all its literal and metaphorical potential, is full of contingencies and hazards, a repository of hopes and documents frequently leaving a mark or scar on the subject. Not recommended for those in a rush, the archive is a slow and deliberate medium, requiring one to wait for the rare opportunity to capture the ‘phantom’ of IP. Such an intimate link to a nebulous subject matter situated between the past and the future initially made its custodians, the archivists, wary of copyright law.4 While the digital environment transformed earlier fears into risk assessments, the relationship between the archive and IP history remains crucial as it goes beyond specific terms and conditions.
One of the most interesting things about archival research is not what has been found here or there but how IP scholars have approached the question of the archive in different ways. Socio-legal, economic, cultural, anthropological, and legal historians have all dipped into archival records with diverse assumptions about IP— empirical, theoretical, or otherwise. While some immediately found archival challenges to their epistemic endeavours, others continued the search, blurring disciplinary boundaries and becoming less concerned about orthodoxy and convention than in how and to what extent different archival orders determine our historical research. This chapter explores how these varying approaches culminated in remarkable projects undertaken by different scholars in the history of IP. It highlights not just the importance of such undertakings but also their inherent limitations. The constraints of those projects are not seen as negative features but as a reflection of the elasticity of the archival function and its connection to the history of IP law; and this chapter considers both the ways of conducting archival research and the questions that might arise from such work.“
In conclusion, he notes
“The question of the archive and its relation to IP history has been approached differently by scholars, not only reflecting their personal research interests and agendas but also their diverse takes on the relationship between law and history. While some describe their work as having been influenced by different archives,40 others recall their archival encounters as the key to helping bring ‘[trademark] registrations to life’. What seems to unite these remarks is an overall sense of gratitude towards archivists and those who helped with the tracking down of sources. Seduced by the archival function, IP scholars have even started recording their own conversations on history. With that said, most archival work in IP scholarship still attempts to embody the ideal of positivism, that is, ‘merely to show what actually happened’. The problem with such an approach is that it obscures the archival function, representing the archive as a neutral and uncontentious historical tool. Even the most meticulous contextualization tends to ignore how its condition of possibility is conjured up in previously deposited archival productions. More to the point, this unquestioned historiographical manoeuvre often serves to fix a past, which is otherwise indeterminate. Precisely because of the capacity to open or close historical junctures, the archive remains significant not just as a repository of the past but as an enabling device to trace the coming into being of different explanatory narratives of IP law.Therefore, archival research allows us to problematize our taken- for- granted assumptions and the narratives that guide them. In so doing, the archive stands not only as a historical resource but as a way to reflect on the shifting operations of IP law and its different histories. It also makes us aware of the contingency of historically significant IP milestones— for example, how there was ‘nothing inevitable about the success of the Berne Convention, nor about the shape that it should necessarily take into the future’. For, as has been recently noted, the archive ‘is not simply a repository of the past. It is also the principle of formation of the past, the present and the future’.”
Hopefully, these excerpts will tempt you to dive into the whole piece. Who knows — you might just find a research thread worth pulling.
The other day, I wandered into the National Archives of India for my PhD research. But what I found there wasn’t just documents (an interesting trove of records) and dust. I also found something much more… twitchy.
Yes. ‘Twas a strange kind of anxiety. Archival anxiety, or Arch-xiety, if I may.
While many researchers/scholars would tell you about methodology, rigour, citations, and “the archive”, and it would be helpful too to listen to them, I wished to intellectualise my feeling/confusion—hoping it would comfort my being, and liberate me from them. Or at the very least, it would let me join the club of those with a similar twitchy feeling. As J. Krishnamurthi once said, Freedom is to be a light to oneself. Perhaps, so I hope, intellectualising my experience will liberate and free me from feeling it alone.
Just as haunted sites—so often portrayed in films and books—are marked by flickering lights, elusive presences, inexplicable sounds, and the eerie uncertainty of whether something is in our mind or the house/room, archives too can feel like haunted spaces. You open a box of old files (or open the not-very-user-friendly website) expecting to find truth, clarity, and maybe a little enlightenment.
Instead, what we see is torn pages, vanishing ink, brittle paper, and someone’s handwriting that looks like a doctor having a seizure during a storm. (Pardon me for the stereotype joke.) Both archives and haunted places carry the same unsettled atmosphere, the same lingering sense that someone/something was—or still is—there. The feeling is of the same kind, only differing in degree.
I feel archives, unlike libraries, are like archaeological sites—places where something is buried, or at least presumed to be. Except in such archaeological sites, we dig not with shovels, but with forms, stamps, and utmost politeness, patience, and sincerity. For we assume something is waiting to be read, ruminated, and written out. We don’t know what or where. But we dig anyway. And it’s fun.
These layered, dusty, and fragile archaeological sites (just like haunted places) are inhabited by gods, ghosts, and most importantly, their salient silences. But, I feel, these silences we conjure only in our minds. They make noise in (y)our head, trying to speak for things that were never written, things that were erased. Things you’ll never know.
Like broken paintings, shattered mirrors, or cracked necklaces—objects said to be haunted—the silence of these ghosts and gods of archival sites dwells in torn pages, digital dust, colonial tongues, disappearing ink, hard-writen texts, glitchy or not-so-friendly websites/databases, and, of course, the foe-ish bureaucratic apparatus.
But if you look closely at these sites, you (at least I am) are not only haunted by the past (as these places often claim through the sense of ‘gone’), but also by what remains unresolved, untranslatable, illegible, or most importantly, absent. This absence is both appalling and appealing. Why?
‘Tis appealing because something remains unknown, unrecorded, hidden from the public sphere. And for this very reason, it appeals to us, entices us to delve into them.
And it’s appalling because we can never fully know what happened. And we know that we cannot. At best, we construct truths—the truths that are often ours, and therefore, always in motion. Yet we dress them up, refine them, cite them, footnote them. Still, they flicker—like a romantic candlelight in the wind.
We know, deep down, that we’re playing the sense-making game—sometimes fully aware, sometimes only half—yet always conscious of its limits, and our own. After all, what we call “research” today—the very impulse that draws us to these sites in the first place and something gives us the courage to endure the anxiety (and even intellectualise it, as I’m doing now)-the archival document is never truly a piece of the past. It is nothing but a figure of the future (a future document it is), perpetually relative to our present inquiry.
Take the Berne Convention—the primary site of my inquiry. I am tracing the genealogy of the “balance” discourse in copyright law, examining how and why copyright law is understood and approached today. Yet as I parse these 19th-century documents, I do not encounter a static historical truth.
Truly, and in a literal temporal sense, I engage with them as future documents—artefacts animated not by their past, but opened for the questions I carry from the present. Put differently, it is not the archive that leads me to my research; it is my research that sends me to the archive. The Berne Convention, thus, becomes a sense-making safari, not a destination of discovery but a site I visit to make the present intelligible.
Nevertheless, I sat (and enjoy sitting) there, in that archive, not just reading and searching but feeling —a strange mixture of dread and delight.
And here I realised: this isn’t just an archival research problem. It’s a condition that causes archival anxiety, which is more than a methodological challenge.
One can experience arch-xiety in two flavours:
One, at the physical/material/infrastructural level. This occurs when the archive resists access—the website’s server is down, the scanner is broken, files are not digitised or can’t be opened, or a document cannot be downloaded. It’s the anxiety of absence, of infrastructure, of not being allowed in, of not knowing where to begin. In this kind, you’re not locked out, yet you’re also not really in.
Two, at the hermeneutic or epistemic level. Here, even when I do get in, I find myself lost or feel un-reached. This feeling is uncomfortably confusing as it arises from a problem that can be easily termed common sense or applicable to all. E.g., it can stem from an unfamiliar language (not necessarily a colonial language), the non-pagination of the document, illegible handwritten pages, cryptic or half-written notations or signatures. Sometimes, a heartbroken person would say, even presence feels like absence! 😦
Funnily, just like in a haunted house, where the light is rarely fully on. The information is an archive flicker too—it speaks and un-speaks. A visitor/researcher is both a witness and an outsider.
And that, dear friend, is what I came to feel: archival anxiety—not merely as a barrier to research (or truth?), but as a structure of feeling, a condition of thought, a fount of knowledge, a slight pressure in the rib, a site of ghosts.
Have you also come across such ghosts?
If not, maybe let’s go together next time. Perhaps we’ll find a torch and a ghost, too. Who knows?