Their definitions and norms parade as neutral and fair, but they arbitrary and propagandistic, aiming to condition behavior along the lines of ideology

The right (by the practical means of laws) is a normaliser of social behaviour—in the sense of standardising. As social relations, especially those involving domination, become more complex, there is a need to create equalising mechanisms for more fluid social intercourse while hindering the growth and flow of antithetical social actions. At the social level, there is ideology, which “is above all that form of mental processing of reality which serves to make people’s social practice conscious and capable of action” (Lukács, 1986, p. 398). At the level of language, there is grammar, creating a whole body of normative categories, e.g., phonology, morphology, accidence, orthoepy, orthography, composition, semantics, syntax, etymology, the ones italicised, “as the bare essentials for writing & reading, represent for most of us the whole of grammar” (Fowler, 2009, p. 220). On the economic plane, means of exchange, currency exchange rates, contracts, interest rates, etc. On the political plane, sovereigns and hegemonic arrangements. On the plane of social control and regulation, the right—and, more recently, the media, communication, advertisement, and propaganda apparatuses. Cohen’s hypostatisation regarding the abstract right is not his monopoly because most authors dealing with either property or intellectual property have the illusion that the abstract right creates property by virtue of law. We turn our attention to some of Hans Kelsen’s insights to counterbalance this. Nevertheless, his extensive analysis and knowledge of norms and legal affairs can neither be fully discussed here, nor is there the pretension that they could be exhausted in some brief lines. However, it can give the current discussion an essential layer in deciphering the common hypostasis presented. Two points considered pivotal for this discussion are arbitrariness and behaviour shaping.

Usually, the concepts of right and law (or the rule of law) are used to convey the notions of neutrality, predictability, trustworthiness, justice, etc. (Thus, the intellectual property debates over the last decades have tried to figure out how to balance it, assuming it as part of a given framework of impartiality and fairness. Except for the critique of the political economy of the media (see infra), hitherto, most theories have neglected to analyse intellectual property within the scope of capitalism critique.) As with the political economy and mainstream intellectual property theories, also this understanding of norms is laden with mystic and religious content. This has, of course, different historical roots, but central to it was the need for a higher form of deity to legitimate social power and, accordingly, its imposed rule. “The assumption that there must be norms which do not originate in arbitrary choice leads to the concept of a norm which is not the meaning of a human act of will”, whereas in reality, “norms posited by human acts of will are arbitrary, in the genuine signification of the word: that is, they can decree any behaviour whatsoever to be obligatory” (Kelsen, 1991, p. 4). It is thus just a hypostasis to consider that an aggregate will in societies with dominating ruling classes, such as the capitalist mode of production, represents the will of all, as idealism’s conception of non-arbitrary (impartial) justice anchored in the true being, which “is that of the Idea, of moral value hypostatised as a transcendent essence” (Kelsen, 1991, p. 64).

Moreover, the commandments of given norms, presented as expressions of true freedom, as Is (from the verb to be), as given conditions, are in fact Oughts. According to Kelsen, these norms are hypothetical (specific) or categorical (general). The categorical formulations of hypothetical norms are context-based and dependent; thus, they are always determined by social relations and historicity. This immanency imposes a double conditionality. “When a norm decrees that a certain behaviour is obligatory under a certain condition—when a conditional behaviour is obligatory—then it is also the Ought (i.e. the behaviour’s being obligatory) which is conditional” (Kelsen, 1991, p. 21). It becomes clear that the overwhelming discussions and analyses of intellectual property operate within this sphere of Ought (Sollen) (see infra). The link between ethic imperatives culminating in a “general norm of morality” is intertwined with legal norms, for the latter, even though—theoretically—different because it departs from the “legal science”, still expresses Ought and not Must. Kelsen states, “[i]t is a normative and not a causal necessity” (Kelsen, 1991, p. 22). The law is a coercive act; it not only imposes behaviour to submit, conform, and obey the norms but also sanctions behaviours that violate them. However, this requires another layer of mysticism, since imputation cannot be bestowed upon causal relations.

Conditioning behaviour by stipulating aprioristic consequences creates a “first cause” belief, “a prima causa”, which becomes “the endpoint of imputation”; this, however, “is incompatible with the idea of causality expressed in the laws of classical physics”, instead, it “plays an important part in religious metaphysics” (Kelsen, 1991, p. 25). Marx also noticed this metaphysical character of the right, especially the right to private property, which is abstractly evoked as a right to freedom, the freedom to dispose of private property, but in practice is the right to egoism, to “de-actualisation” (Entwirklichung) and estrangement (Entfremdung). “The human right of freedom is not based on the connection of human with human, but rather on the separation of human from human” (Marx, 1981a, p. 364). Intellectual private property gains a broad social dimension within this scope. However, and Marx is fulminating, “none of the so-called human rights, therefore, goes beyond the egoistic human being, beyond the human being as he is a member of bourgeois society, namely, as an individual withdrawn to himself, to his private interest and his private arbitrariness, and separated from the community” (Marx, 1981a, p. 366). This idealism is what Ludwig Feuerbach denounced as a form of subject-predicate-inversion: “Religion is human-being’s divisiveness [Entzweiung] with himself: he confronts God as a being opposed to him” (Feuerbach, 2016, p. 54). By imputing legal and moral meaning to secure political-economic power and discarding, disregarding, and de-ontologising the true causal character of intellectual property, does intellectual property(private) not attain a religious, metaphysical character? Created by social property relations, intellectual property(private) must relinquish its ontological dimension (see infra), actualising its objective side, namely, acquiring self-independence (Verselbständigung); thus, it presupposes imposing and asserting itself as a power relation. Kelsen is unequivocal: “If the command is not empowered, then this is merely the subjective meaning of the act of commanding”; furthermore, “only an empowered command also has the objective meaning of Ought, that is, only an empowered command is a norm binding on the addressee, obligating him to act in the prescribed way” (Kelsen, 1991, p. 27).