Clarifying Commodification
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.
(1) Coercion:
(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
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Responses (6)
Ken Arromdee - August 17, 2010 at 11:04 am
I would suggest that the 1a coercion concern *can* be helped by making the terms more favorable to the seller. The problem is that his poverty forces him to take the offer. If enough money is paid that if he wasn’t poor he still might have accepted the offer, then his decision is no longer (in some percentage of cases) being forced by poverty.
Price caps only solve this if the cap is so low that even a poor person wouldn’t find the money received to be much use. So you’d need a cap plus a floor: it has to be either high enough that you don’t need to be poor to find the offer favorable, or low enough that even being poor doesn’t make you more likely to accept (which probably means $0 + expenses).
Jennifer Hendricks - August 18, 2010 at 9:42 am
Hi Glenn,
A few reactions–
It’s odd that price caps are seen as a solution to the voluntariness problem. While a cap reduces the number of people for whom the exchange is “an offer you can’t refuse,” it also means (1) that only the poorest people “can’t refuse” and (2) that those people end up with less money. Maybe it would help to tease out some of the paternalistic versus redistributive concerns: Support for price caps without redistribution might more often arise from corruption concerns.
A price cap could arise from the interaction of all three kinds of concerns. Thinking about the cap on egg prices, for example: prospective purchasers and the ART industry, a well-off group overall, all have an interest in eggs being available but not too expensive (cheap enough to ensure access for the upper middle class, not just the very rich). A price cap presumably helps keep the price down, even if it is not strictly adhered to; it mitigates worries about coercion and corruption that might otherwise be felt more strongly by the participants and the general public; it also mitigates crowding out, for similar reasons–the “donor” is still positioned as altruistic, the capped price can be characterized as something more like reimbursement, and depressed payment reduces the quality-control problem. So all three kinds of commodification worries are addressed at the expense of the person with least power in the transaction.
On surrogacy, a lot of folks (myself tentatively included) conclude that surrogacy contracts should be allowed but not specifically enforceable against the gestational mother. Does that conclusion mean that the underlying concerns aren’t about “commodification”? Or is the desire to provide an “out” after the birth based on corruption-type concerns? I tend to think it’s a corruption concern that, as you say, “stem[s] from prior relationships of subordination,” but the stemming is more complicated than the possibility of re-education suggests. I take re-education to mean, “We used to romanticize motherhood and insist that it always be done altruistically, but now we recognize women’s autonomy to sell their reproductive abilities just as men sell sperm.” (See Kim Krawiec’s post on that a while back on Faculty Lounge.) But that shift will still be felt as a _de_-valuation of a capacity that is at the core of our construction of gender difference.
A.J. Sutter - August 18, 2010 at 11:33 am
I apologize for not having read your paper closely, and for commenting not on your taxonomy but on the substance of your discussion of the Essentialist argument, but:
Your paper’s analysis of the nature of the transaction and the issue of “value equilibrium” might be even stronger if you consider that a problem with the market transaction is that it is ‘non-tuistic,’ in the sense of Phillip Henry Wicksteed (Chapter 5 of his The Common Sense of Political Economy (1910), later edited by Lionel Robbins). Wicksteed considered non-tuism a necessary feature of a transaction to bring it into the realm of economics.
There’s also a notion of reciprocity that is anthropologically much closer to our civilization than are Kula gifts, potlach &c, based on the idea of “civil economy” espoused by the Neapolitan School that was contemporary with Adam Smith; a good introduction is in Civil Economy (Italian orig. 2004, but available in English) by Luigino Bruni and Stefano Zamagni. Those authors describe what distinguishes the Italian tradition of reciprocity (e.g., Antonio Genovesi) from neoclassical accounts of altruism and the like, and also discuss Wicksteed. The absence of what you call a value equilibrium (both in the present, and the expectation of one in the future) is quite pertinent to Genovesi’s idea of reciprocity.
Glenn Cohen - August 19, 2010 at 11:04 am
Thanks for the comments
Ken- I think your point about VERY high forms of compensation that would be extremely attractive to both the poor and rich is very interesting, and one I need to think more about. Tangibly, if we established a price floor for egg sale of 5 million dollars, would that make the voluntariness variant of coercion argument go away? One thing I find interesting here is that such a solution would exacerbate the access variant, as well as (for reasons I’ll discuss in a moment) potentially make the corruption problem worse. This is one of the reasons why I think unbundling the different ideas that go under the rubric “commodification” is helpful to see how solutions to one strand increase the problems with others.
Jennifer – I agree with your point about price caps, and I think it feeds into what I call the hypocritical argument. I will just drop a note of caution though about the crowding out claim — there is an empirical question – do price caps on egg donation reduce or increase the supply of eggs as compared to countries without such caps — and there is a separate question more like the intrinsic corruption argument. As A.J. references, in the old paper (from my student days) I linked to I introduce some ideas about the expressive nature of the transaction, and the issue of “Value equilibrium,” that one thing which distinguishes gifts from sales but might also distinguish some markets from others is whether the price paid is one that expressively is meant to “eat up” all of the value on the other side, to suggest a value equilibrium or even-steven symmetry. I think it is possible that price caps may help to express value non-equilibrium and thus less corruption, either in the intrinsic approach or even the consequentialist experience-modifying approach.
On the question of whether barring specific performance is adequate or not as a solution, I discuss the issue (although tied more to contracting about other strands of reproductive liberty) briefly from a constitutional standpoint in this Stanford Law Review article http://ssrn.com/abstract=1114806 at page 1184, and more in-depth in this Southern California Law Review article http://ssrn.com/abstract=1116269 from a normative point of view on pages 1185-1187. I’d be curious to know what you think.
A.J.- thanks for introducing me to the wonderful term “non-tuistic” and for these very erudite suggestions. I have not been writing much on commodification recently, but I may do some more work relating to medical tourism on the issue soon…
Ken Arromdee - August 19, 2010 at 1:53 pm
Actually I was suggesting a combination price cap and floor. It can be either under the cap or above the floor.
If it’s above the floor, it achieves equality between poor and non-poor because both would find the offer equally attractive (at least to some degree). If it’s below the cap, it achieves equality between poor and non-poor because both would find the offer equally unattractive. So you say “you can only sell organs for either at least $5 million (floor), or for $0 + expenses (cap).”
Jennifer Hendricks - August 25, 2010 at 9:52 pm
I realize that in blog terms I’m commenting at a glacial pace, but, Glenn, here are a couple of thoughts about the specific performance question. I’ve talked with students about the analogy to artists’ right to their work, and I don’t think it is necessarily limited by the idea of avoiding forced labor. My understanding is that the artists’ right would extend to recovering the work at least under some circumstances, not just refusing to produce the work. (My colleague Gary Pulsinelli has pointed out that the goblins of Gringotts adhere to this theory.)
The uniqueness of the object of the contract, which also comes up in the surrogacy context — what could be more unique than an individual baby, etc. But the intended parents did not contract for this individual baby, even if they hand-picked the gametes. They contracted for “a baby,” maybe with some particular specifications, but not for this unique individual, who _wasn’t_ a unique individual (in my view) until grown by the gestational mother. Until she relinquishes the child, she, much more than the intended parents, has a unique, individuated relationship. So I see the object of the contract as unique from the perspective of only one party. I realize a refund doesn’t make the intended parents whole. Ultimately I guess I think the family law analysis has to come before the contracts one. The “object to the contract” was not a party, and no one had the right to act on her behalf at the time it was made.
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