The Price of Everything, the Value of Nothing: Reframing the Commodification Debate
I. Glenn Cohen
Harvard Law School
Harvard Law Review, Vol. 117, No. 689, 2003
Under current law, sperm, art, pollution rights, and life insurance can be sold; votes, organs, draft cards, and children cannot. Demarcating a line between what can and cannot be permissibly sold is the goal of the commodification debate (also sometimes called blocked exchanges.)
This paper attempts to add some precision to the dialogue by mapping out the conceptual space of the commodification debate and deriving (and tentatively evaluating) the entailments of different positions adopted by anticommodificationists - those opposing the sale or trade of certain goods.
I begin by dividing coercion arguments (focused on the autonomy of the seller of the good and inequality in background conditions) from corruption arguments (focused on the idea that sale of the good corrupts it, or does violence to the way we think the good is best valued.)
I further subdivide coercion arguments between those that focus on the voluntariness of the seller (e.g., if organ sale was allowed only very poor people would want to sell) and those focused on access (e.g., if organ sale was allowed only the very rich would be able to pay the premium prices to access it). I demonstrate that both forms of the argument share the same philosophical basis point, and both can be eliminated by using the same public policy solutions (e.g., placing a fairly low price ceiling on the good).
The second set of arguments, the corruption arguments, prove more interesting because they do not depend on a particular state of the world and are less susceptible to public policy solutions. The crux of these arguments is that 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. 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 children belong in a higher sphere of valuation than does money.
I show that the corruption arguments can also be subdivided into two categories, Conventionalist arguments (which argue that determining how a good should be valued and which exchanges are improper is relative to a particular society at a particular time) and Essentialist arguments (which argue that goods have an essence or nature that determines how a good should be valued and which exchanges are improper).
After examining the shortcomings of the Conventionalist account, I try to develop a nuanced approach to the Essentialist position. I catalogue various possible conceptions of how many spheres of valuation exist and how they are divided, and evaluate the merits of the various conceptions. I conclude, however, that any such account will end in failure if it cannot explain why the sale or barter of a particular good (e.g., an organ) should be blocked, while the gifting of the same good (organ donation) is permitted.
My solution is to suggest that a plausible Essentialist position has to offer not only an account based on the nature of the goods exchanged, but also an account based on the nature of the transaction. I offer one such account I call the formula from the nature of the transaction that argues that part of what makes an exchange improper is the transaction's expression of value equilibrium - that the things being exchanged are of equivalent value. I suggest that this is why gift exchanges like organ donation are not improper on the Essentialist anticommodificationist account, and also explains why compensation for the medical costs and lost wages of a mother in a surrogacy contract is different from commercial surrogacy (a blocked exchange) - the former transaction recognizes that the money is not a substitute for the child, that some value remains uncompensated, whereas the latter does not.
Number of Pages in PDF File: 22
Keywords: law, legal theory, jurisprudence, commodification, blocked exchages, surrogacy, adoption, markets, philosophy, Kant, inequality, Sandel
JEL Classification: K10, K19, K32, K40, K49Accepted Paper Series
Date posted: January 6, 2005 ; Last revised: April 7, 2010
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