Frosio on Reimagining Digital Copyright Through the Power of Imitation: Lessons From Confucius and Plato @GCFrosio

Giancarlo Frosio, Université de Strasbourg - CEIPI; Stanford University - Stanford Law School Center for Internet and Society, is publishing Reimagining Digital Copyright through the Power of Imitation: Lessons from Confucius and Plato in volume 5 of the Peking University Transnational Law Journal (Forthcoming). Here is the abstract.

For millennia, Western and Eastern culture shared a common creative paradigm. From Confucian China, across the Hindu Kush with the Indian Mahābhārata, the Bible, the Koran and the Homeric epics, to Platonic mimēsis and Shakespeare’s “borrowed feathers,” our culture was created under a fully open regime of access to pre-existing expressions and re-use. Creativity used to be propelled by the power of imitation. However, modern policies have largely forgotten the cumulative and collaborative nature of creativity. Actually, the last three decades have witnessed an unprecedented expansion of intellectual property rights in sharp contrast with the open and participatory social norms governing creativity in the networked environment. Against this background, this paper discusses the reaction to traditional copyright policy and the emergence of a social movement re-imagining copyright according to a common tradition focusing on re-use, collaboration, access and cumulative creativity. This reaction builds upon copyright’s growing irrelevance in the public mind, especially among younger generations in the digital environment, because of the emergence of new economics of digital content distribution in the Internet. Along the way, the rise of the users, and the demise of traditional gatekeepers, forced a process of reconsideration of copyright’s rationale and welfare incentives. Scholarly and market alternatives to traditional copyright have been plenty, attempting to reconcile pre-modern, modern and post-modern creative paradigms. Building upon this body of research, proposals and practice, this Article will finally try to chart a roadmap for reform that reconnects Eastern and Western creative experience in light of a common past, looking for a shared future.

Download the article from SSRN at the link.

Ho on a Confucian Theory of Property

Norman P. Ho, Peking University School of Transnational Law, is publishing A Confucian Theory of Property in the Tsinghua China Law Review. Here is the abstract.

Based on an analysis of the teachings of Confucius and Mencius, this article sets forth a Confucian justificatory theory of private property. I argue that such a theory is a pluralist theory, simultaneously based on numerous theoretical bases or strands. First, it justifies property based on a theory with utilitarian overtones – namely, that people will be better off in a private property regime as it will lead to a more stable, harmonious, and orderly society. Second, a Confucian theory of property justifies a private property regime as essential in allowing individuals to fulfill, express, and/or practice key, specific Confucian virtues, which in turn allows for full moral development (we might understand this conceptually as a Confucian version of a personhood/human flourishing theory of property). Third, it justifies property based on an economy efficiency theory – that is, private property is key to the smooth functioning of a trade-based economy. All three strands are linked together by a common concern for the moral development of the individual. This article is important for two major reasons: first, it serves as a corrective to the often heard stereotype that Confucianism is not supportive of property rights; and second, it can contribute to the field of property theory as a whole by offering a coherent and integrated theory which weaves different justificatory property theories together.

Download the article from SSRN at the link.

Confucius and Chinese Legal Philosophy

Norman P. Ho, Netherlands China Law Centre; Morrison & Foerster (Hong Kong) is publishing Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments) in the Pacific Rim Law & Policy Journal. Here is the abstract.

Most scholarship on Chinese legal philosophy has neglected the study of Confucian jurisprudence in practice. As a result of this incomplete portrayal, scholars predominantly view the premodern Chinese Confucian legal tradition as lacking a rule of law system, which has led to blaming Confucianism for much of China’s modern and historical rule of law problems. This article seeks to complicate this view by examining Confucian jurisprudence in practice: specifically, the development of pre-Tang dynasty panwen (written legal judgments). Through analysis of specific panwen from various Chinese primary sources — many of which have never been translated into English — this article will show that even in Chinese antiquity the legal system was not solely marked by codification or the lack of the rule of law, but was far more complex and diverse than most scholars have portrayed. For example, elements of case law played an important role in Chinese legal history. Indeed, it is an especially good time to build our understanding of the use of cases and the role of panwen, in China’s legal past given the Supreme People’s Court’s recent emphasis on the role of case law in contemporary Chinese jurisprudence.

Download the article from SSRN at the link. 

Confucian Virtue Jurisprudence

Linghao Wang, Xiamen University Law School, and Lawrence B. Solum, Georgetown Law School, have published Confucian Virtue Jurisprudence, in Virtue, Law and Justice (Amalia Amaya and Hock Lai Ho, eds.; Hart Publishing, forthcoming). Here is the abstract.

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.
This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of (1) the ends of law, (2) legislation and the judiciary, (3) the nature of law. We shall argue that the highest value of Confucian ethical, political theory is the virtue of citizens and the harmony of society and individuals. From the perspective of the use of evaluative language, the Confucian doctrine of Correcting Names gives us an explanation of the mechanism of internalization of legal rules in terms of the relationship among social norms, law and thick evaluative concepts. This might throw light on our normative understanding of legislation and the judiciary,and it also provides a functional account of the nature of law.

Download the essay from SSRN at the link.