posted by Glenn Cohen
I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.
I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy. It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.
At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.
(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent. It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern. It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns. Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted. It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly. While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.
(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market. For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.
Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population. It is only a partial solution because it usually results in shortages. One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).
(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality. Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.” Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997). More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way. For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.
As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate. For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.
(a) Intrinsic vs. Consequentialist: One variant of the argument is “intrinsic”; for example, the statement “prostitution devalues women’s sexuality” is a proposition about an inherent incompatibility between an object and a mode of valuation. A different variant of this argument is what might be called the “consequentialist” corruption argument, for example that allowing the sale of babies WILL cause us to change the way we value children in our society in a way that will produce deleterious consequences. Although the two are often used interchangeably, these two versions are quite different. The consequentialist but not the intrinsic version heavily depends on empirical premises about how likely experience-modification (to use a term of Scott Altman’s) will occur, and the possibility that legal or cultural interventions might prevent it. When the corruption objection takes its intrinsic form, by contrast, such policy solutions are inapposite because whatever one does to mitigate the bad consequences of the exchange, even if the exchange is made in secret or is not widespread, the exchange still denigrates the good. It is as if the evil that the objection pushes against occurs and is consummated in the moment of exchange, irrespective of the consequences that follow.
(b) Conventionalist vs. Essentialist: Particularly within the intrinsic version of corruption argument (but also on the consequentialist version) the departure point is that there is an exchange between goods in two modes of valuation that does violence to the way we think the goods are properly valued. Thus, we need a method for determining how goods are properly valued. There are roughly two large camps – conventionalist and essentialist. Conventionalists believe that the proper sphere of valuation depends on prevailing societal norms of a particular group, at a particular time. Michael Walzer’s approach in Spheres of Justice is emblematic. Herodotus has a famous passage in the Histories along these lines
“During [King] Darius’ reign, he invited some Greeks who were present to a conference, and asked them how much money it would take for them to be prepared to eat the corpses of their fathers; they replied that they would not do that for any amount of money. Next, Darius summoned some members of the Indian tribe known as Callatiae, who eat their parents, and asked them in the presence of the Greeks . . . how much money it would take for them to be willing to cremate their fathers’ corpses; they cried out in horror and told him not to say such appalling things. . . . [C]ustom is king of all.” HERODOTUS, THE HISTORIES bk. III, ch. 38, at 185–86 (Robin Waterfield trans., 1998).
The approach faces interesting questions regarding exchanges between societies, concerns about whether some of these norms (e.g., regarding women’s sexuality) stem from prior relationships of subordination, and the possibility that we can “re-educate” norms to avoid these kinds of conflicts.
By contrast, on the essentialist view, one looks to the timeless essence or nature of a good to determine how to value it, as well as which exchanges accord with that mode of valuation. This is no easy task, especially when one recognizes that not only the exchange of money but barter can produce problematically corrupting exchanges. If the problem is the exchange of things that have radically different spheres (not amounts) of valuation, then the philosophical battleground will be in defining how wide the various spheres are and the extent to which they overlap in a way that convincingly follows from the essence of the good itself.
(3) Crowding-Out: This theory, associated with Titmuss’ work on the blood supply, suggests that when markets enter the domain they push out altruistic giving. The next step of the argument usually suggests that the result is less supply of the good in question (i.e., fewer people donate blood in regimes where sale is allowed), or at least that there results a diminution in supply of quality versions of the good – one claim associated with Titmuss’ argument was that blood sale regimes caused individuals to fake their health status and that bad blood entered the system as a result, although this critique is contingent on a lack of effective means of screening. When the claim is instead that the market merely pushes away altruistic conceptions of the good, I think that is more properly described as the corruption argument above.
Again, I’d welcome comments on the taxonomy.
August 17, 2010 at 8:53 am Posted in: Bioethics, Culture, Family Law, Feminism and Gender, Health Law, Jurisprudence, Law and Humanities, Law and Inequality, Legal Theory, Uncategorized Print This Post