Social creation of a legal reality: a study of the emergence and acceptance of the British patent system as a legal instrument for the control of new technology

Abstract

This thesis examines the way in which the patent system emerged in Great Britain and was accepted by 1883 as a legal instrument by which new technology could be controlled and exploited. Its purpose is to contribute, by means of a detailed historical case study, to the sociological understanding not only of the emergence of patent law but also, more generally, of law as a mode of reproduction of the social order.

In the first chapter various approaches in the sociology of law to the study of the emergence and the reproductive role of law are considered. A model of how law could have been expected to emerge and what role law,, in conjunction with the state, could have been expected to play in an industrialising capitalist society such as Great Britain, is synthesised from these approaches.

In subsequent chapters the model is used in the examination of the history of legal control of new technology. The manner in which patent law permitted units of technology to become 'commodities' within the capitalist system and in which the patent system (and the related system of registration of designs), through the active intervention of agents, gained acceptance as the 'common-sense' way of ordering the control of new technology is emphasised.

In the final chapter a theory of technological commodities is advanced and its utility as an explanation for the emergence of patent law is critically examined. Comparisons are made with studies of other bodies of law that emerged as responses to the 'needs' of developing industrial capitalism and generalizations about patterns of emergence are suggested. In the light of the historical research general observations are made about the sociological conceptualization of law. The significance of these conclusions for future research is considered.