Austro-Athenian Empire

1. A theory of universals is traditionally supposed to answer two questions: first, what makes generic identity possible across specific difference (e.g., what makes red horses and brown horses both count as horses?), and second, what makes qualitative identity (whether generic or specific) possible across numerical difference (e.g., how can red-horse-hood exist in both of these red horses at the same time when they are two horses rather than one?).

I understand Rand’s answer to the first question: red horses and brown horses possess different measurements of the same attribute, and we grasp the attribute by mentally omitting the measurements. But this can’t be her answer to the second question, since this solution, by helping itself to the notion of “same attribute,” presupposes that the second question has already been answered.

So what I’m wondering is: what is Rand’s answer to the second question? Does she even address the second question, or does she mistakenly think that all the philosophical fuss about universals has solely been about the first question? One reason for thinking she doesn’t quite see the second question is that when she first introduces the problem of universals (in Introduction to Objectivist Epistemology) she describes it this way:

When we refer to three persons as “men,” what do we designate by that term? The three persons are three individuals who differ in every particular respect and may not possess a single identical characteristic (not even their fingerprints). If you list all their particular characteristics, you will not find one representing “manness.” Where is the “manness” in men?

It’s clear from what Rand says here (e.g. the reference to fingerprints) that by “differ” and “identical” she means to signify qualitative difference and qualitative identity, not numerical difference and numerical identity. But in that case she’s missed half the question. Before we can start worrying about how it’s possible for two things to be qualitatively identical in the generic sense without being qualitatively identical in any specific sense, don’t we first need to justify the puzzling notion of qualitative identity per se?

2. In her 1964 article “Patents and Copyrights” (reprinted in Capitalism: The Unknown Ideal) , Rand offers inter alia the following argument:

As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser’s work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first, does not alter the fact that he wasn’t. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.

Here my question is this: does the patent office create the right, or merely record a pre-existing right? Because if the patent office creates the right, that seems to attributing to government a more sweeping authority than Rand ordinarily wishes to grant. But if instead the patent office records a pre-existing right, then that right, existing prior to certification by the state, cannot be lost by failing to receive such certification.

Nor is Rand’s analogy with commercial competition helpful. What I have on entering the market is not an unconditional right to sell my product, but only a right to try to sell it, or in other words, a right to sell it if I find a willing buyer. So if I am outcompeted by a rival seller who snaps up all my potential customers first, I haven’t lost any right. But if my rival beats me to the patent office, I do lose the right to try to find a willing buyer for my product (and the potential buyers likewise lose the right to try to buy from me). What justifies this?

After I wrote the above, I thought to look through my older writings on copyright to see whether I’d commented on Rand’s argument before. Turns out I did, and said basically the same thing:

Rand is suggesting that the competition to get to the patent office first is like any other kind of commercial competition. For example, suppose you and I are competing for the same job, and you happen to get hired simply because you got to the employer before I did. In that case, the fact that I might have gotten there first does not give me any rightful claim to the job. But that is because I have no right to the job in the first place. And once you get the job, your rightful claim to that job depends solely on the fact that your employer chose to hire you.

In the case of patents, however, the story is supposed to be different. The basis of an inventor’s claim to a patent on X is supposedly the fact that he has invented X. (Otherwise, why not offer patent rights over X to anyone who stumbles into the patent office, regardless of whether they’ve ever even heard of X?) Registering one’s invention with the patent office is supposed to record one’s right, not to create it. Hence it follows that the person who arrives at the patent office second has just as much right as the one who arrives first – and this is surely a reductio ad absurdum of the whole notion of patents.

Oh well, I guess there’s nothing wrong with having two different wordings of the same objection out there.