A Treatise on ownership: defending intellectual property.

Section 1: The Introduction

It is undeniable that the digital age has mounted serious challenges to previously unchallenged institutions. One such institution, which is an important hallmark of a civilized free market, is intellectual property. The appearance of peer-to-peer file sharing rocked static industries such as music, book, and software publishing. These industries sought to restrict, or bottleneck, access to original works through predefined outlets and older, easier-to-control mediums. As the public’s appetite for digital files grew, these industries and others failed to keep pace, and the result was a rampant violation of intellectual property law. It is the failure of these industries to change which gave rise to a black market for intellectual property. In the wake of these developments, some questions have arisen regarding whether intellectual property should even be owned. There are some who claim that only scarce and rivalrous resources should be owned, and therefore, they have put forth an updated form of the Lockean Proviso. Again, other groups continue to maintain that all property is theft. There is an argument that may provide an answer to these claims and support the common sense of intellectual property.

Section 1A: The argument

The term “abstract” as it is used in this argument, and throughout this paper refers specifically to the term as it is used to denote the conceptual, intellectual, notional or as an idea. The argument is as follows: abstract boundaries define all property. Abstract boundaries are ideas which require moral agreement. Property is synonymous with ownership. Therefore, ownership is defined by abstract boundaries and moral agreement. Ownership is a type of ethical system. Therefore, ownership and property are moral ideas. Ideas are intellectual. Hence, all property is intellectual in nature. There is no true delineation between so-called “intellectual property,” and so-called “scarce property,” and if one is accepted as moral, then the morality of the other must be accepted as well.

Section 1b: The Meta-Ethics of property and ownership

This examination is necessary to plumb the questions related to the metaphysical nature of property in its several forms. The philosopher John Locke seems a fitting place to begin. Locke posited the idea of self-ownership as an immutable first principle of property. “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his” (Locke, 87).

The Austrian economist Hans-Herman Hoppe has given some justification for this view with his argumentation ethics. Hoppe maintains that the very fact that one argues for or against a position indicates that an assumption has been made of self-ownership. There can be no argument or preference against self-ownership that may be justified without its presumption. In all arguments, self-ownership must be assumed, or those arguments will beg the question as to why a personally preferred argument matters. “Second, the means with which a person demonstrates preference by engaging in argumentation are those of private property. Obviously, no one could propose anything or become convinced of any proposition by argumentative means if a person’s right to exclusive use of his physical body were not presupposed” (Hoppe 400).

Hoppe’s argumentation ethic shores up John Locke’s claim that all men own themselves. The often overlooked but valuable and ever relevant Robert Lefevre who held the concept of self-ownership to be a truth of the human condition had a view which fits nicely with both Locke and Hoppe. His claim is that it is man’s rational nature which sets him aside from other creatures. Hoppe’s argumentation ethic supports Lefevre’s claim in The Fundamentals of Liberty, “We have discovered that human beings are rational creatures (as opposed to instinctive organisms), and that all men act in favor of their own individual evaluation of what might serve to maximize their own personal well-being” (Lefevre 51).

If this is indeed the case and one accepts that first and foremost man is a rational creature who can argue for personal preferences and may exercise complete control of his body, then Locke’s point of self-ownership has merit. However, what of those who argue against self-ownership and further argue that human beings are owned by the community in which they live? This question is very important because socialists such as Marx say that all human beings are themselves owned by all other human beings.

It is important because it lays the groundwork for an argument which states that all goods should be publicly owned. It is indeed the first principle for communal property arguments. Per Lefevre, the primary question regarding property is whether it should be publicly owned or privately owned. How should one determine this without creating a circular argument? If human beings are publicly owned, then Hoppe’s argumentation ethic can be ignored, and individuals have no moral ground to claim any preference at all. It would also indicate that a human being has no real justification for claiming the results of their work in any circumstance whatsoever.

According to Murray Rothbard, there are only two alternatives to the concept of self-ownership (Rothbard, For a New Liberty, location 535). The first alternative to self-ownership is the idea that one class of individuals can or do own all other individuals. This system has existed in antiquity at different times and even within the United States up until the 1860’s. To accept this concept would, per Austrian economist Murray Rothbard, create a situation in which an owning class would be considered persons while those owned would not be. It is safe to say that these systems would be universally reviled in today’s moral climate. The second possibility is that all human beings own an equal communal share of all other people. Rothbard points out the ridiculous nature of this position when taken to its logical conclusions.

If there are two billion people in the world, then everyone has the right to own one two-billionth of every other person. In the first place, we can state that this ideal rests on an absurdity: proclaiming that every man is entitled to own a part of everyone else, yet is not entitled to own himself. Secondly, we can picture the viability of such a world: a world in which no man is free to take any action whatever without prior approval or indeed command by everyone else in society. It should be clear that in that sort of “communist” world, no one would be able to do anything, and the human race would quickly perish” (Rothbard, For a New Liberty, location 544).

There is a third position that is offered, and it even seems to be an alternative on the surface. This third claim is that no person owns anyone including themselves. It is not a solid argument because, in practice, it means that each person may still do as they wish. Aggression and trespass withstanding, in all but name it would be self-ownership.

Self-ownership is the rational option from both a moral and pragmatic standpoint. Thus, we accept that each person has property in their body as an abstract moral matter. As a first principle from which all other property is derived, self-ownership relies completely on the acceptance of abstract concepts. Therefore, it is undoubtedly evidence of the first premise: all property is defined by abstract boundaries. It also verifies premise two: abstract boundaries are ideas which require moral agreement.

Section 1c: The meaning of property and ownership

How then should self-ownership be defined? Where do the boundaries of self-ownership begin and end? The idea of property as a ‘thing’ owned does not quite fit. Even boundaries of owned land are not defined in ways that are easily discernable. There is no truly tangible method from which to define such an idea. According to O. Lee Reed in his 2004 article What is Property, property means the same as owned. “From the Roman times, the most significant word used in political theory to denote the distribution of limited resources has been “property.” The English word derives from the Latin proprietus, or “ownership,” in turn from proprius, which means “own” or “proper.”” (Reed 468).

Reed goes on to further state that there are two main views of what consist of property. Property is referred to as “that which is owned” in both the senses used within political theory and common usage. This meaning is used concerning a property’s “thingness” which normally denotes physical tangibility, but it provides little explanation of its “propertyness.” It is in this context that discussions often take place regarding just property distributions and other ideas such as scarcity. This first meaning has certain deficiencies that cannot be overcome and lead to logical and epistemological problems which there are no answers.

It is Reed’s second argument that seems to be most valid. “In an essential way, and not just a more technical and legal sense, property means something quite different from the resources to which it applies. It refers to the right of ownership, which is the second common meaning of the word, but because property and ownership are legal equivalents, both basic meanings of property collapse in illuminating semantic circularity: “property is that which is owned” becomes “property is property” and “property is the right of ownership” becomes “property is the right of property” (Reed 469-470). Thus, Premise three is confirmed: property is synonymous with ownership.

If one views property in this proper manner which is synonymous with ownership, it is no longer a thing, and scarcity is no longer valid as the sole determining factor for what may be defined as property. Thus, we find confirmation of property as synonymous with ownership and instead an ethical framework from which people may relate to one another and which defines relationships at the center of human concerns. This idea would indicate that ownership defines how individuals ought to act in agreement with one another. Confirmation of Premise four: ownership is then a type of ethical system.

Section 1d: The Meta-Ethics of property and ownership further defined

The investigation must now return to self-ownership. If ownership is a framework of how one ought to act regarding other members of society, then it must be the case that self-ownership is the first principle of such a framework. It also must be the case that property is defined in such a way that others within a community agree to take part in it. Lefevre makes it clear that property is indeed a matter of ethics: “The moral concepts of ownership rests upon belief. I believe I own something because I paid for it. Or because it was given to me. Or because I found it, and could find no other owner” (Lefevre 61). The statement indicates that the rules of just and moral ownership must be agreed upon mutually and in advance. Both those who own it must believe they own it and then for there to be agreement others must believe it too. These mutually agreed upon rules will lead to the ability to define what may be owned and how ownership, A.K.A. property, is defined. Such rules will include all boundaries, exclusivity, and responsibilities of ownership. If morality and agreement are required to define property, then all property boundaries are abstract moral imperatives. It confirms premise two: abstract boundaries are ideas which require moral agreement.

Section 2: What can and should be owned

The stage is now set to proceed with an investigation of so-called ‘scarce property’ and so-called ‘intellectual property.’ Thus, having established the first, second, third, and fourth premises of the argument: 1. all property is defined by abstract boundaries. 2. Abstract boundaries are ideas which require moral agreement. 3. Property is synonymous with ownership. And the 1st claim based on these premises: Ownership is then a type of ethical system. Establishing the true identity of property as natural or rational in principle and as the final premise of the argument should be simple. However, there are still some arguments that must be dealt with that follow other strands of thought. These arguments are either wholly based on an illogical metaphysical premise and constitute a string of fallacies or they diverge from common sense and lend themselves to outlandish conclusions.

At this point, one must begin to consider the idea of external property. That is the acquisition of property which is external to one’s self. Since a human being owns its body, then it stands to reason that this human being also owns the entirety of his or her existence. Thus, while a person cannot own ‘time,’ that person may exercise a preference on how to use his or her body over time. Thus, a person owns his or her body in all moments through time.

Time is a major factor from the Austrian economics standpoint. In truth, time according to the Economist and Philosopher Ludwig Von Mises is a praxeological consideration: “Man is subject to the passing of time. He comes into existence, grows, becomes old, and passes away. His time is scarce. He must economize it as he economizes other scarce factors” (Mises, location 2628). Mises goes on to state that time in the form of labor is the scarcest of all the factors of production. “Labor is the most scarce of all primary means of production because it is in this restricted sense nonspecific and because every variety of production requires the expenditure of labor. Thus, the scarcity of the other primary means of production—i.e., the nonhuman means of production supplied by nature—becomes for acting man a scarcity of those primary material means of production whose utilization requires the smallest expenditure of labor” (Mises, location 3299). We can now consider John Locke’s Labor Theory of Property Acquisition. Or ‘homesteading,’ from an Austrian economics vantage point.

If a person were to move onto a piece of never settled land and begin making improvements, this should be sufficient to give this individual a claim to ownership. As was established earlier, each person has ownership of themselves and may dictate what activities are pursued over a period. Thus, one has mixed a scarce factor of production with unclaimed property. According to Locke, this is enough to claim ownership of a piece of land. “Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property” (Locke, 87).

So far, what has been discussed is the ethical system of how individual should have come to be entitled to ownership of property. If it is ethical to homestead physical property which has abstract boundaries, then why is it not ethical to homestead intellectual property which is wholly abstract and is formed from abstract boundaries as well? The first part of the asserted argument still holds. Abstract boundaries must define land ownership and thus requires a moral agreement between people in a community. It is true that land is scarce, but so is time and labor. As was established earlier, labor is the single scarcest factor of production (Mises). If ownership is an ethical system, it is not an actual feature of the physical world, but instead an abstract idea. Ownership itself is strictly a moral idea which must be seen as a means of governing the relationships and interactions between humans. It derives its usefulness from its ability to resolve conflicts. The entire concept of scarce denotes only the availability of a good and the difficulty of obtaining the good. Ownership is an ethical system which seeks to regulate relationships between those seeking to procure goods that are scarce or otherwise.

Section 3: Kinsella’s argument against privately owned Intellectual Property

According to Stephan Kinsella, who is a practicing intellectual property attorney and scholar on the subject, scarcity should be the primary means of determining whether anything should be owned privately or publicly. Accordingly, this completely rules out the private ownership of intellectual property. To understand why Kinsella comes to this conclusion, a brief look at the position is in order.

According to Kinsella, property rights were created to avoid conflict which is completely in agreement with the view of ownership as an ethical system. Kinsella makes a difference in his book Against Intellectual Property between so-called ‘scarce goods’ and so-called ‘intellectual property.’ His main line of reasoning is that scarce goods are rivalrous and create conflict between those who wish to consume them. Intellectual property in Kinsella’s view is not ‘scarce’ because it may be recreated ad infinitum without the original owner experiencing any loss to his possession of them. Scarce goods then are the only goods that should be privately owned and not publicly owned in this system. Kinsella denies the Lockean view of the “Labor Theory of Property Acquisition.” In this view, all that is necessary is that a person makes a claim on something that is unclaimed at the time. The act of mixing one’s labor with the land or item to be owned is not sufficient to acquire property. “However, “creation” itself does not justify ownership in things; it is neither necessary nor sufficient. One cannot create some possibly disputed scarce resource without first using the raw materials used to create the item. But these raw materials are scarce, and either I own them, or I do not” (Kinsella, location 476). If mixing one’s labor with ‘scarce’ resources is not sufficient, then what is?

Kinsella holds that ‘first occupation’ is both necessary and sufficient to stake a claim to something to be owned. It is essentially a ‘finders keepers’ model of property acquisition. This denial of Locke’s Labor Theory of Property Acquisition is the only way around the argument that intellectual property may be homesteaded. Intellectual property is intangible Kinsella argues, and so there is nothing to mix one’s labor with even if it were a requirement. Thus, how can one come to own intellectual property since labor cannot be mixed with it?

There are some serious problems with Kinsella’s view both from a purely rational philosophical standpoint and an Austrian economics standpoint. According to the economist Paul F. Cwik, “Economists use the term “scarcity” in a very particular sense. People consume goods and services to benefit from their use. As more of a good is used, the marginal benefit diminishes. When the marginal benefit of a good reaches zero, the users of the good are satiated, and the good is defined as non-scarce. It becomes a non-economic good. An economic good is one in which the marginal benefit is still positive; the users of the good are not satiated” (Cwik 6). What is Cwik’s point? The point is that scarcity is controlled by the function of supply and demand. Scarcity is not a feature of resources or the tangible world, as Kinsella maintains. Scarcity is a subjective description of a resources relationship to human beings within an economy. Kinsella is correct in maintaining that scarce resources cause rivalry among consumers, but he is incorrect in his assumption that scarcity is an objective and real attribute of resources. To treat scarcity as if it were a permanent feature of the existence of an object in the world instead of a feature of the relationships between humans and those same resource objects is a serious logical flaw and one that leads to all sorts of odd conclusions, as he indeed has.

Cwik points out quite adeptly the example of crude oil. On the market today, oil is a high demand resource with limited availability and limited reserves. Thus, oil is a perfect example of a so-called ‘scarce’ resource. However, it was not always scarce. “For example, today oil is a scarce good. However, several centuries ago, not only was oil, not an economic good, it was an “economic bad.” If oil were to come bubbling up from the ground, it could destroy one’s crops and result in the starvation of one’s family. The physical characteristics of oil have not changed, rather what has changed is how it is used. This change was a “demand side” change” (Cwik 6).

From the supply side, Cwik uses the example of lifeboats, “Lifeboats in most circumstances are not scarce goods, but there is the rare situation where they become so scarce that people would give nearly anything to be on one” (Cwik 6). Considering these examples, it is clear that ‘scarcity’ is not a feature of tangible resources from an Austrian school perspective. Thus, scarcity cannot be the delineation between whether an item may be owned or not owned.

A second issue is Kinsella’s denial of the value of one’s labor. It is obvious that the Labor Theory of Value is flawed and led to many false assumptions by Karl Marx who used it as the primary means of determining the value of goods. Likewise, it is a serious mistake to remove it completely as one of the several determinants in some goods overall supply. If one were to equate labor as a factor of production, as Ludwig Von Mises did, then the result is unmistakable within the Lockean homesteading framework. “Every individual has only a limited quantity of energy to expend and every unit of labor can only bring about a limited effect. Otherwise, human labor would be available in abundance; it would not be scarce, and it would not be considered as a means for the removal of uneasiness and economized as such” (Mises, location 3214). The result is that labor is scarce just as time is scarce. Therefore, Kinsella’s argument for scarcity as the measure of whether something should be owned becomes unusable due to its applicability to intangible goods as well. Scarcity, as mentioned, is not an empirical feature of tangible objects but a description of a person or community’s economic relationship to those objects. The claim that all property is intellectual can be seen in the fact that abstract concepts such as time and labor are scarce factors in the production of tangible goods.

It is undeniable at this point that Kinsella’s arguments do not rest on solid first principles. Scarcity is not a permanent, physical feature of any objects which exist within the world. Thus, to claim that scarcity is the defining factor in what should be owned begs the question of why the object owned is ‘rivalrous.’ Just because an object is rivalrous does not mean it is scarce. It just indicates that its potential for scarcity is much higher than non-rivalrous objects. If Kinsella views rivalrous objects as always scarce then per this argument, the object is scarce because it is rivalrous. Again, it is scarce only because people desire it and compete for it, or it is ‘rivalrous.’ Essentially goods may be owned because they are scarce because they are scarce. The entire argument rests firmly upon a circular logical fallacy.

Even if the argument from scarcity was not deeply flawed, Kinsella’s arguments about labor should not be an important factor in ownership, either. From the Austrian perspective, both time and labor are potentially scarce factors of production. It means labor which takes time will assuredly always be scarce, and so all goods, including intellectual goods will at some point be scarce. Another point that should be considered is that labor itself should be considered rivalrous because it may only be used by one given individual to produce goods at any given time, whether this is the individual or for an employer paying wages.

Intellectual goods have the same requirements of production that tangible goods do. For instance, researchers, artists, and writers must eat food to survive while they work to produce new inventions or original works. The equipment required to do the research, keep them warm, and the energy provided by the electric company are all based initially on the procurement and use of ‘scarce’ goods. It further blurs the lines regarding so-called ‘scarce property’ and so-called ‘intellectual property.’ If tangible goods and scarce factors of production are required to produce original works, inventions and other forms of so-called ‘intellectual property,’ then it should make sense that some ownership right is morally desirable.

At this point, the final three portions of the argument have been presented. Scarcity and rivalrous consumption are aspects of economic relationships and just distribution of goods within a community. Therefore, ownership and property are moral ideas. Labor and time are scarce just as land and tangible resources are scarce. These are factors in the production of both tangible and intangible goods. It is the mixing of tangible resources with scarce resources such as time and labor that adds one more layer of abstractive strata to the entire concept of property. Ownership is an ethical system specifically for helping individuals to self-govern, and it lays down a set of rules which help to determine who should have access to which resources and goods, whether tangible or intangible. It means that ownership of ‘things’ is a moral idea and is concerned primarily with justice in distribution. Hence, ownership is a moral idea which has been established for just distribution property. Property, as has been shown, is synonymous with ownership, and is an idea. One now has the premise: Ideas are intellectual. If that is the case, then all ownership and property are firmly intellectual regardless of its features. All property then must be considered intellectual, and this means that anything has the potential to be justly owned. Thus, the claim of the argument has surfaced: Hence, all property is intellectual in nature.

Section 4: Utilitarian arguments against Intellectual Property

Two final considerations must be addressed regarding intellectual property and property in general. One is how should a system of ownership and intellectual property be seen from a utilitarian point of view? Stephan Kinsella fields several arguments which are construed as natural rights arguments but are utilitarian. The first argument is that so-called ‘intellectual property’ allows one intellectual property owner to control what scarce property owners may do with what they own. Patents and copyrights limit what others may do with resources under their ownership. “Thus, if A writes a novel, he has a copyright in this “work.” If he sells a physical copy of the novel to B, in book form, then B owns only that one physical copy of the novel; B does not own the “novel” itself, and is not entitled to make a copy of the novel, even using his own paper and ink. Thus, even if B owns the material property of paper and printing press, he cannot use his own property to create another copy of A’s book. Only A has the right to copy the book (hence, “copyright”)” (Kinsella, location 243). Thus, Kinsella maintains that so-called ‘intellectual property’ transfers portions of ownership rights to already owned resources over to intellectual property owners (Kinsella, location 244).

It is an interesting argument and appears original on its face. However, it is, in fact, the same argument that communists use when arguing against private ownership of all tangible and intangible things. Communists hold that all men own property communally and that by walling it off for private use, which restricts access to all people, those private owners have stolen from the community. Another aspect of this argument irrationally maintains that private property limits what one may do with one’s body, and so bridges ownership rights in the bodies of other individuals. This concept is ostensibly based on the idea of communal ownership of people. Thus, any homesteading done by community members is communally owned. The argument of communal ownership of people has been addressed, and so this line of argument is baseless.

Kinsella’s argument stipulates that ideas are not scarce and, therefore, they may not be owned. As stated earlier, only scarce and rivalrous resources may be owned. Pretending that previous arguments in this paper have not been made which completely undercut the entire scarce and rivalrous scheme, let us ask the question, does the ownership of ideas ‘steal’ from other resource owners? Limiting one set of ownership rights which are superseded by other prior ownership rights should not be construed as stealing.

As Paul F. Cwik points out, this is what an ethical system of ownership does. It is a framework which delineates what the boundaries of ownership are. A person is free to exercise any and all actions that benefit the owner up and to the point where it infringes negatively on the ownership of others “Thus, property rights have two dimensions. Obviously, they allow people to use freely that which they own. However, property rights also restrict what people are allowed to do. In the context of multiple individuals, ownership of something does not give one complete freedom to use it. Its use is circumscribed within the context of everyone else’s rights” (Cwik 10). Thus, ownership of intellectual property will impact what others may do with their property, and this is expected. The answer to the communist claim that property is theft because it restricts what people may do with their bodies is eerily similar to the answer to Kinsella’s argument that intellectual property steals ownership from others.

Kinsella’s second argument, which is predicated on the first argument, claims that because intellectual property creates limits on what people may do with their property, the free market will be hampered. The immediate answer for this is Christopher Handke’s report to the Committee on the Impact of Copyright Policy on Innovation in the Digital Era. In this report, he states there is no conclusive evidence that intellectual property hampers or helps the market as Kinsella and others claim. “For example, relatively little is known about the effects of copyright protection on innovation and creativity, rather than on rights holder revenues. Furthermore, quantitative empirical research on copyright is most promising where there is good data available, and where reasonable natural experiments occur due to sudden and substantial changes to the copyright system” (Handke 41). The evidence is not conducive for any utilitarian arguments against intellectual property. A natural rights argument is the only argument of substance on the matter.

Section 5: Conclusion

It has been established that abstract concepts such as time and labor can be scarce. It has also been established that so-called ‘scarce goods’ are consumed during the creation and production of inventions and original works. Intangible and tangible property are hopelessly intertwined. Tangible goods are not scarce until abstract ideas which create a use for them make them so. The phenomenologist Martin Heidegger observed that objects in the world present themselves as either merely ‘present at hand’ or useful and ‘ready at hand,’ which means that objects are not useful until human beings interpret them as useful (Wheeler). This concept is echoed by the libertarian philosopher Robert Lefevre, who stated that property was a logical extension of its owner, “All property begins with the concept of the ownership of the person by himself. All other properties are viewed as nothing more than extensions of the person beyond himself over which exists the same kind of control he exerts over himself and his faculties” (Lefevre 68). It is not the mere tangible nature of objects that make them scarce but the desire to make use of them that does. There is no difference in the homesteading of intellectual property or tangible property.

When one is discussing property, it is not the physical object that is ascribed with the quality of being property. For most attributes of an object, there is some physical characteristic which one can explain as the source of the attribute. It is typically an empirically observable quality of the object itself. If an object is red, heavy, or brittle, we can inspect the object and discover those attributes. But when we say an object is owned, there is no physical indication of that. One may observe with any level of scrutiny to discern the “property-ness” of an object and will fail to find it. The only place one may look to discover if a thing is property is within the mind of an individual. It is not true of other attributes of physical objects, which are available for inspection. “Property-ness” is an idea that is established through preconceived mutual notions of what the quality of ownership consists. It must be ‘just’ and moral to obtain agreement from other individuals. Thus, the rules of ownership which establish the notion of “property-ness” require collective agreement, and then the individual may be an owner of such an object. This notion of justness and morality in a society requires the establishment of rules for “distributive justice” to guarantee people rightful self-ownership and rightful ownership of their work. This system of “distributive justice” establishes the concept and characteristics of “property-ness.”

Ownership is a moral idea and, thus, people may own anything they deem morally proper to own. Homesteading and natural rights law provide an infinitely moral and good framework from which to govern the ownership of all things scarce or otherwise.

There is much more to consider than what may be presented within this limited work. There are questions which regard the current morality and fairness of the intellectual property system within the United States and other countries. There is no attempt here to cover the vast amount of questions regarding what is a moral, legal system of ownership. Instead, this inquisition of the ethical nature of intellectual property has strictly confined itself to ethical and moral concerns. However, it is clear that the ownership of intellectual property and other forms of property are inseparably connected. It is also clear that if other forms of property ownership are moral and just, then the ownership of intellectual property must be considered moral and just as well, regardless of the morality of any given legal system.

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