Chapter 6: The moral dimensions of law: Interpretation and aims
The roles that previous chapters have ascribed to the moral dimensions of IPRs invite a series of ripostes. It has been suggested that moral terms and concepts provide, and are intended to provide, flexibility within the central rules of IPRs and that these are interpretative resources for adjusting the balance between property and participation rights in intellectual property. And it has been contended that the interpreters have to seek appropriate types of prescription for these moral terms and concepts, such as can be universalized consistently with the critical aspects of the institutions which we still want to uphold. The critical question is: Why should we not treat legal rules, even when they incorporate moral terms, as having purely legal meanings? That is, why shouldn’t they be given meanings by whatever method the law assigns them content? This does not mean that, if one wants to be able to refuse universalization of the norms used, one has then to abjure reliance on prescriptivity. Prescriptions may still be relied on and used in the various dimensions of the system. But they will not have the character, under Hare’s theory, of being moral prescriptions if their use is not subject to universalization. They would rather be more like imperatives – ‘shall’ commands rather than ‘ought’ prescriptions. It may be argued that this is possible because, though IPRs are creatures of a normative institution, they are the creation of legal rather than moral norms.
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