A hermeneutic of intellectual property rights: theory, law, and economy : defending the essence and dignity of human rights

Abstract

There are two opposed directions, namely the nature of the object and the ontology of law, that meet in the moment of reality of law. Intellectual Property is a particular type of object, the nature of which is difficult to adequately inquire; the inquiry is crucial for the adherence of law to the reality given as such, as well as for the socio-historical context that defines the political understanding of the object given in the form of law. Law has become incapable of thinking itself exhaustively; there are no efforts in measuring the degree of legitimacy of its assumptions. Therefore, law is the equivalent of an order issued through formally correct procedures and having the force of obliging people to its respect. Yet, the legislator shall not impose impossible commands that follow an ideal order detached from the given one. Intellectual Property does not genuinely constitute an element that its same genetic naturalness would permit to translate into juridical categories. Law is incapable to absorb Intellectual Property and the same credibility of law is at risk: it is all about force/violence of the system to impose effectiveness. The reading of the complex phenomenology of Intellectual Property Rights permits their own hermeneutic.