One of the problems here is that “agnosticism” can be used to describe at least two quite distinct views:

1. Holding that, as a matter of fact, you do not know whether or not God exists.

2. Holding that, in principle, you cannot know whether or not God exists.

(1) is probably the more common usage but (2) seems to be closer to the philosophical position espoused by Huxley and other early self-identified “Agnostics.” It’s not so much that they entertained God’s existence as a non-negligible possibility, but rather that they had epistemological objections to the idea that you could even assess the possibility. In any case, I think the second usage is taxonomically more useful and more interesting, since it helps you to classify the position not only of agnostics like Huxley or Ingersoll who didn’t believe in God, but also the views of folks like Kant or Kierkegaard, who did believe in God but denied the possibility of theoretical knowledge as a basis for their faith.

Glen,

I agree with you that the justice of IP restrictions is part of what’s up for dispute, and I agree that argument Volokh discusses isn’t used as a response to arguments to the effect that “IP is unjust, but it has good consequences, so we should have IP laws,” and I don’t know of any IP advocates who argue that way.

What I am saying is that Volokh’s reply to the argument begs the question against his interlocutor, because the intuitiveness of his counter-example depends on the idea that free copying is analogous to shoplifting. What’s doing the intuitive work in the counter-example is the fact that shoplifting is theft, and thus justifies forcible intervention whether or not there are other business models available to the shopkeep. It has nothing in particular to do with whether shopkeeps would be able to support themselves using other business models that aren’t vulnerable to widespread shoplifting. (They might very well be able to; any shop that sells inexpensive commodities just eats the losses from a certain amount of shoplifting anyway.) But you can’t extend the same argument to IP laws and have the same intuitive result without first making some further argument to demonstrate that free copying is theft, or relevantly like theft.

It’s true that Volokh would have a case against his interlocutor if the interlocutor’s argument were simply, “There are other business models available, so therefore IP laws are illegitimate.” The case would be: “Look, there’s this other case where having business models available doesn’t delegitimize government intervention. So that can’t be a sufficient condition for the illegitimacy of the law.” But nobody that I know of makes that argument, so if that’s what Volokh is responding to he’s just attacking a strawman. Instead, the context in which people make the sort of argument he’s discussing is in refuting a protectionist argument for the legitimacy of IP laws (rather than positively proving their illegitimacy). So the point isn’t that having other business models available delegitimizes government intervention. It’s that the availability of other business models undermines one of the intermediate steps in the protectionist argument (the claim that there wouldn’t be “enough” production of songs, drugs, or whatever if IP laws were repealed). I happen to think that consequentialism of the sort demanded by these protectionist arguments is morally indefensible, and that the injustice of protectionism is a more important point to stress than the fact that the consequences won’t really be what the protectionist claims that they will be. But I don’t see that Volokh’s actually engaged with the argument in its actual dialectical context.

I’m not sure if I’m clarifying or muddying my point, so I’ll just leave off there.

As for the socialist calculation problem, my complaint isn’t with property rights as such. It’s with the idea that what you do or don’t have property rights in can be determined by deliberating over what the right level of X to produce is, and then incentivizing people accordingly through the recognition or fabrication of new forms of property titles. Since there is no way even in principle to determine what the “right” level is independently of an actual market process it makes no sense to try to set the rules of markets based on such calculations. If the argument being made for private land titles were “Oh, well, if we don’t have private land titles then not enough land will be cultivated, so let’s start recognizing those in order to get more land cultivated,” then I would think that that argument was just as bad as the ones made for restrictions on free copying. The case for recognizing private property titles in X has to be made on other grounds than whether “enough” X will or will not be produced, because there isn’t any way to determine how much “enough” is until you’ve already engaged in a market process — which is to say, until you’ve already determined what sort of things are going to count as transferrable property and which aren’t.

I think the plausibility of Volokh’s counter-example depends on the fact that it is clearly unjust to steal stuff from a store. Volokh adds a bunch of consequentialist worries (fewer people will own stores, etc.), but this is just hocus-pocus: the reason that government intervention is uncontroversially justified here is because property are uncontroversially at stake.

Now, if the anti-IP argument were just, “There are other business models available that free copying wouldn’t make unprofitable, so therefore the government shouldn’t prohibit free copying,” then it would of course beg the question in a rather crass way, and Volokh’s counter-argument would demonstrate that. But I’ve never heard the argument that Volokh makes used in that way. Rather, the dialectical context of the argument is always a response to protectionist arguments in favor of IP restrictions: “If we don’t have IP, then how ever will the movies get made / the musicians get paid / the drug research get done / etc.?” Answer: try a new business model; your broken business model is not my problem. This is a perfectly legitimate consequentialist response to the attempt at a consequentialist argument in favor of IP restrictions; it doesn’t address the justice of free copying, but that’s because it’s responding to an argument that explicitly disregarded questions of legitimate property rights in favor of a plea for protectionism.

Taken from the standpoint of justice, Volokh’s response here puts the argumentative cart before the argumentative horse.

And insofar as this and other points are intended solely as consequentialist replies to the argument, and not as appeals to justice, the entire argument depends on the presupposition that socialist calculation of the “right” levels of drug research, songs, movies, etc. is possible. Which it isn’t.

Perhaps it has something to do with the fact that “faith” was once counted among the cardinal virtues?

“Where [is] the wise? where [is] the scribe? where [is] the disputer of this world? hath not God made foolish the wisdom of this world? For after that in the wisdom of God the world by wisdom knew not God, it pleased God by the foolishness of preaching to save them that believe. … But God hath chosen the foolish things of the world to confound the wise; and God hath chosen the weak things of the world to confound the things which are mighty; …”

This is not to say that the theme of “just believe” in children’s fantasy is an intentional or even an accurate expression of the purported theological virtue. Or that people were right to regard this kind of faith as a virtue to begin with. But I do think that this obviously has to be part of the correct explanation.

murky thoughts: Are philosophers of law allowed to look for rights outside the constitution?

Sure, unless all legal inquiry terminates decisively at the prescriptions of the Constitution. You might think that it obviously does (or ought); but obvious or not, it is a substantive position within the philosophy of law, which needs a reasoned defense. The final authority of the Constitution is not unquestionable, and in any case it’s both contingent and parochial (we could have had different small-c constitutions, and other people do have them). If you want to argue that in our territory, as things actually turned out, the Constitution is decisive on all legal questions on which it speaks (and maybe even some on which it does not), then you can argue that, but you will need just that—an argument. And the reasons given in the course of the argument would themselves be reasons within the province of the philosophy of law. (As you may have guessed by this point, they should not be reasons taken from within the text of the Constitution itself, since the authority of the Constitution is precisely what’s in question; you can’t just cite the Supremacy Clause without begging the question in a particularly crass manner.)

murky thoughts: Isn’t Article 1 the end of the story about why we have intellectual property rights?

No. If you do take the text of the Constitution to be decisive on legal questions within its scope then that at most only authorizes Congress to devise intellectual protectionism schemes; it doesn’t mandate any particular scheme, or any scheme at all, and it doesn’t recognize a “right” that the government or anyone else is bound to respect. You can have plenty of arguments over whether Congress ought to make use of the power that it is granted, and whether it ought to make use of it in this way or that.

If, on the other hand, you don’t take the Constitution to be decisive in any final way, then the text of Article I has no special authority to settle the matter anyway. (This happens to be my view; Bell is right to suggest that intellectual protectionism may undermine property rights in ordinary tangible property, and as a very famous lawyer once argued, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Constitutions are not prior to natural rights, and have no proper authority outside of recognizing and protecting them.)