In this chapter, I endeavor to weave together a complex series of European legal developments connected with the emergence of intellectual property. I begin by tracing the emergence of intellectual property in France, focusing on the context for this development in the revolutionary processes through which a new French nation was formed, and on the ambivalent implications of national codification for intellectual property in France. I then go back to the Reformation, pointing out the significance of Calvinist and Lutheran legal dcotrines for jurisprudential traditions carrying new conceptions of sovereignty and natural rights. Shifting to the legacies of these traditions for legal and administrative theories that developed in German-speaking lands, we see early foundations for a new jurisprudential narrative that becomes vital to the substantive rationale of intellectual property in our own time: progressivism. The upshot of these complex developments is a paradoxical linkage between bureaucratic impersonalism in the formal application of legal doctrines and an idealizing personalism in the agentive capacities of individual human beings: the idolizing of "genius."

Notwithstanding Josserand’s ardent and decades-long exhortations, the theory has remained controversial in France; a proposal in the mid-twentieth century to bring it into the Civil Code was abandoned. The Benetton case offers a troubling illustration of the potential for arbitrariness left in Josserand’s wake. Because its courts express themselves in English, Louisiana is a convenient example of the many civil law jurisdictions which pay lip service to abuse of right but scarcely apply it. The common law does just as well without it (as good judges everywhere, unenthusiastic about the expansion of judicial discretion, seem to prefer). The Himpurna case provides an illustration of the unnecessary invocation of abuse of rights.

‘Abuse of rights’ cannot be defined without using open-textured formulations which impede predictability. Bin Cheng did not call abuse of rights a principle, but a theory. In his laudatory preface of Jean-David Roulet’s comprehensive rejection of the notion that it could serve as a rule of international law, Cheng in fact declined to take a position as to ‘the place of the theory in international law’. Among national legal systems, the most notable movement to establish a principle of abuse of rights (expressed nowhere in the French Civil Code) arose in France at the end of the nineteenth century. It was, and remains, controversial. The common law has found ways to place limitations on the attempted exercise of rights without using the generic reference to abuse as a rule of decision. Conceptually, the notion of abuse of rights is not a necessary corollary to that of good faith.