Tuesday, May 29, 2012
Alina Ng, Mississippi College School of Law, is publishing Copyright and Moral Norms in the Loyola Journal of Public Interest Law. Here is the abstract.
The role normative principles such as morality and ethics play in a legal system is a highly contentious point in jurisprudence and legal theory. Scholars and philosophers have often disagreed on whether laws should reflect and incorporate moral and ethical norms. The idea that there could be a necessary connection between law and objective morality has been forthrightly rejected by some jurists because of the heterogeneity of social views and beliefs about what is right and wrong conduct. This paper challenges the assertion by legal positivism that morality cannot be incorporated into legal analysis because they obfuscate analytical thinking about the law. Instead, this paper argues that morality and ethics clarifies the proper role for law and legal institutions in society and deepens one’s understanding about the functions of a legal system. For copyright law, incorporating moral or ethical principles into legal analysis would allow one to determine if copyright laws accurately reflect common expectations for the progress of science. This paper then shows that modern day jurisprudence on copyright law does not reflect common expectations of society for the progress of science. It goes on to argue that copyright law should reflect these standards if the progress of science is to be sustained. This paper is divided into three parts. The first part of this paper analyzes literature to draw out the essential premises for the disagreement between legal positivism and natural law. It demonstrates that the incorporation of moral and ethical ideals into legal analysis will lead to greater understanding about the nature and purpose of law. The second part of this paper shows how the social and separability theses so essential to positivism affect legal understanding of copyright laws and the role copyright laws play in society. The third part of the paper argues that copyright laws must reflect objective morality - and not economic calculuses - for the progress of science to be sustained and looks to environmental law as a model for conserving and preserving the common good in copyright. This paper concludes with a preliminary proposal on how the progress of science can be sustained by the incorporation of moral and ethical principles into the law.
Download the article from SSRN at the link.