UDTR — Radar mondial des droits de la Nature

Infantilized by law: why consistency no longer matters

Identification

Clé publique

doi:10.1093/jiplp/jpag092

Auteurs

Mladen Vukmir

Année déclarée

2026

Langue déclarée

en

Type source

article

Première détection

2026-11-09T19:04:47.701372+00:00

Dernière observation des métadonnées

2026-11-09T19:04:47.701372+00:00

Dernière vérification HTTP

Non effectuée

Résumé documentaire — langue originale

There is an old comfort in saying that adults are responsible for themselves. Children are not; the legally incapacitated are not; and for both, the law arranges a benevolent substitution, appointing others to speak, decide and act in their stead. All of this is familiar and reassuring. What is neither familiar nor reassuring is the quiet limelight entry of a third figure who has, in functional terms, begun to keep company with the first two—not by statute, but by circumstance: the litigant. The moment an inventor, an author, or any other IP rightsholder steps into litigation, something slips out of their hands. The narrative around their case, though formally never surrendered to others, is imperceptibly re-shaped as facts are selected, re-framed, strained through procedure and doctrine, and pronounced back by others—often in a judgment that leaves the litigant feeling they have lost even in the hour of their winning. Actions and conducts are reviewed, re-constructed and re-narrated in ways that may bear little correspondence to the litigant’s perception of a life they thought they had been living themselves. I have watched this happen from the closest possible distance. In a pharmaceutical patent case I handled, the defendant met the infringement claim with a defense based on a patent of its own, said to permit manufacture while skipping a crucial step of the plaintiff’s patented process. The plaintiff answered that the defendant’s invention was chemically impossible—and filed an affidavit from a Nobel laureate to prove it; the defendant’s experts attested in writing that it worked. Faced with irreconcilable science, the court—unwilling, and unable, to choose—simply let the proceedings drift until the parties settled. The lawsuit was never decided: the forum that promises to determine the legal meaning of our acts could not, in the end, even determine the facts. For a long time, IP law earned its social prominence by promising guidance. It undertook to provide a reasonable compass to navigate the world through reasonably stable rules, tolerably coherent doctrine and sufficiently consistent decisions. The promise was never merely practical; it was moral: a person may fairly be held to a rule only where there was a real chance to know it and follow it. This promise has not vanished, but it is receding, and quickly, as the complexity of our society drowns the coherence we once took for granted. Coherence—the modest expectation that law should speak clearly and consistently enough to let a person take their bearings—has not been formally renounced. Courts still invoke it; scholars still rise to defend it. In practice, though, it has become a ritual vocabulary, summoned after the fact when some result has gone wrong enough to attract an appellate court or an indignant commentator. The environment in which IP law now operates has changed extremely rapidly, amidst unprecedented developments in global trade and the rise of dispute-resolution platforms, technical standards, code and, more recently, systems whose logic may be rewritten overnight in the next update. No doctrinal architecture, however elegant its interior, can serve as a map drawn in advance for conducts that sit against such a complex backdrop. Ultimately, that map is constantly re-shaped by the IP specialists who offer to read the flow of this complex river of rules, conducts and court decisions. Unlike a child, whom the law does not hold fully responsible because of a maturity that has not yet arrived, the litigant in an IP dispute is not denied either maturity or reason. And yet, the instant litigation begins, the authoritative account of what they did, and what it meant, ceases to be theirs. It is reconstructed by professionals and institutions, often with real skill, sometimes with theatrical flair, always at a distance from the person whose life is its subject. Between act and judgment stretches a corridor of expert framing, strategic pleading, evidentiary selection, institutional discretion and doctrinal choice. The litigant sits at the far end of a conference table, listening to their IP counsel discuss ‘their’ case in an idiom only distantly related to anything they recognize as having happened. At the very point when the stakes are highest, adult self-direction gives way to professional guardianship: the party remains formally autonomous yet, in substance, is spoken for. All of this helps illustrate the slow erosion of consistency as a governing virtue. It is now weighed, openly and justifiably, against proportionality, policy, contextual justice, rights-sensitivity and the perpetual correction of yesterday’s error. Courts praise stability even as they distinguish it away, recalibrate it and now and then reverse it outright. The social consequence has been slower to register, perhaps because it is the kind of thing one would rather not acknowledge. Law accumulates, stratum upon stratum, until the density of applicable norms makes genuine individual judgment nearly impossible. The person who wishes to act well meets a thicket so dense it incapacitates rather than guides. At that point the law has done something worse than failing to help: it has obstructed the very responsibility it still, with a straight face, demands. Responsibility requires choice; choice requires legible options; and legible options require a coherence that accumulated complexity systematically destroys. There is a history to this predicament: modern law’s menacing expansion began, in part, as an attempt to tame the corporation. Since these entities first rose in the trading houses of London and Amsterdam three centuries ago, they have conspicuously failed to develop anything resembling moral responsibility. It cannot be a coincidence that the same age which incorporated the intangible person also invented property in intangible creations—the first patent and copyright statutes arose alongside the joint-stock company, and the wealth of the industrial revolution followed the emergence of both kinds of intangibles. Humans answered corporate aggression the only way institutions know how—by piling rule upon rule. The remedy misfired. In such a setting, ‘ignorance of the law is no excuse’ begins to sound less like a moral axiom than an administrative convenience—a maxim the system can afford precisely because it has arranged for genuine knowledge of the law to be unattainable outside a narrow professional caste. The law does not protect citizens as though they were children; it judges them under conditions in which mature legal self-direction has been structurally disabled, reducing them to dependence while preserving the entire vocabulary of autonomy. The effect is a structural infantilization that nobody designed and nobody quite intends. IP law shows this dynamic in the sharpest relief, because here the gap between act and judgment is a matter of principle rather than accident. A creator—or, ever more often, an incorporated rightsholder—patents an invention, names a brand or trains a model on scraped data, and discovers what it actually did only once a court applies indeterminate, after-the-fact tests: exceptions whose reach is recalibrated after decades of reliance, a shifting line between idea and expression, inventiveness assessed with subjective hindsight formally disclaimed. Even where the law appears to answer in advance—a granted patent, a registered mark—the certificate settles nothing: a significant share of litigated rights does not survive their first serious test. The legal meaning of a creation was never the creator’s to fix; it awaits litigation to be assembled into infringement or its absence. And the burden falls unevenly: corporations with portfolio counsel manage the uncertainty as routine practice, while individual creators meet the law only once, at the moment of suit, when others decide what their work ‘really’ was. All the while, law has lost whatever monopoly it once held over binding norms. Platforms regulate expression, visibility and reputation; technical standards govern markets; platform filters resolve more copyright disputes in a day than the courts will see in a decade. Private and hybrid regimes order behaviour long before any court is engaged. Judicial consistency remains relevant, but only as one ordering force among several, by no means always the decisive one. None of this argues for throwing coherence overboard: where norms lie scattered across overlapping public, private and technical regimes, the case for coherence grows stronger, not weaker. Practitioners have nonetheless long sensed the limits of litigation. On a panel on trademark bullying I moderated a dozen years ago, one of the most influential voices in IP remarked that the foolish lawsuit fires lit on the American West Coast were visible all over the world—litigation as a way of waging industry disputes rather than resolving them. This is why interest-based methods of conflict resolution will keep gaining ground at the expense of position-based ones, such as litigation and arbitration. Legal scholarship would do well to admit not only that law’s guidance in a complex society works mostly in hindsight, classifying conduct after the fact rather than directing it beforehand, but that consistency itself has slipped beyond reach—not neglected, but unachievable. Decisions issue from ever-changing judicial compositions, over facts that never quite repeat, against a mass of norms no single mind can hold together—and, in IP, through invented minds: the notional person skilled in the art, the average consumer, the informed user, all fictions no one can consult in advance. To expect consistent decisions under such conditions is to expect the river to hold still. The trouble with modern legality, then, is not merely that it has grown less consistent. It is that it goes on speaking the language of guidance in a world where, for most of us, guidance has quietly vanished—where the law still asks to be trusted as a companion on the road long after it has ceased to know the road, and longer still after the road itself has stopped being a road at all.

Identifiants

OPENALEX

W7214433321

DOI

10.1093/jiplp/jpag092

Repères documentaires

Famille documentaire

Doctrine

Types déclarés par les sources

article

Entités naturelles mentionnées

Fleuve / rivière

Les mentions d’entités ne constituent pas une preuve de reconnaissance juridique. La juridiction étudiée est distincte du pays d’affiliation des auteurs.

Sources

OpenAlex · Document 1 · Document 2

• DOI · https://doi.org/10.1093/jiplp/jpag092
• OpenAlex · https://openalex.org/W7214433321

Statut documentaire

Pertinence à examiner

Bibliothèque

Cette identité n’est pas encore intégrée à la Bibliothèque juridique.