ORCID (Links to author’s additional scholarship at ORCID.org)
This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law’s most important texts. The text is Thomas Jefferson’s often-cited letter to Isaac McPherson regarding the absence of a natural right of property in inventions, metaphorically illustrated by a “taper” that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson likely copied this Parable of the Taper from a nearly identical passage in Cicero’s De Officiis, and I show how this borrowing situates Jefferson’s thoughts on intellectual property firmly within a natural law theory that others have cited as inconsistent with Jefferson’s views. I further demonstrate how that natural law theory rests on a pre-Enlightenment Classical Tradition of distributive justice in which distribution of resources is a matter of private judgment guided by a principle of proportionality to the merit of the recipient—a view that is at odds with the post-Enlightenment Modern Tradition of distributive justice as a collective social obligation that proceeds from an initial assumption of human political equality. Jefferson’s lifetime correlates with the historical pivot from the Classical to the Modern Tradition, but modern readings of the Parable of the Taper, being grounded in the Modern Tradition, ignore this historical context. Such readings cast Jefferson as a proto-utilitarian at odds with his Lockean contemporaries, who supposedly recognized property as a natural right. I argue that, to the contrary, Jefferson’s Taper should be read in light of the Classical Tradition from which he borrowed and the Baconian scientific model he admired, such that it not only fits comfortably within a natural law framework, but also points the way toward a novel natural law-based argument that inventors and other knowledge creators actually have moral duties to share their knowledge with their fellow human beings.
Jeremy N. Sheff,
SMU L. Rev.