Consent, Coercion and Trade: A Reflection on the Relationship Between Free Trade and Values

Le sens des libertés économiques de circulation / The Sense of Economic Freedoms of Movement (Jean-Sylvestre Bergé and Giulio Cesare Giorgini, ed., 2020)

Boston College Law School Legal Studies Research Paper No. 528

9 Pages Posted: 15 Apr 2020 Last revised: 16 Apr 2020

Date Written: April 15, 2020

Abstract

Trade is a species of exchange rooted in a rich experience of encounter, opportunity, risk, and inequalities of power. All of this enters into the relationship between trade, defined here—following Berge—as the free circulation of goods, and questions of meaning and value (our subject today). In my view, this relationship can be conceptualized in at least three ways. One relationship between trade and values is called in the literature “linkage,” whereby the benefits of free circulation are conditioned on a commitment to some other non-trade value. A prominent and relevant example is the link between EU membership and joining the European Convention on Human Rights, thereby using the benefits of free circulation to promote the protection of human rights. A second relationship we could call “justification,” in which free circulation is justified in a normative sense by reference to some other non-trade value such as freedom, or some view of property rights or natural rights. Thus private parties must be allowed to trade, and to trade free from government intervention, as a consequence of human freedom, for example.

In this short essay I propose to examine a third such relationship, which I am calling a constitutive relationship. In this relationship neither trade nor values are being conceived of or employed instrumentally; instead, there is an essential relationship between the nature of trade itself, understood here as a mutual exchange of goods, and the “value” we call “consent.” In other words, for an exchange to be trade, as we use the term in ordinary speech and in law, it must be consensual. If it is not consensual, then it is something else—coercion, exploitation, theft or some other kind of extraction or wealth transfer—but it is not trade. Consent is thus constitutive of trade, not instrumental to it, or vice versa.

This essay will be printed as Chapitre 13 in the forthcoming Le sens des libertés économiques de circulation / The Sense of Economic Freedoms of Movement, edited by Jean-Sylvestre Bergé and Giulio Cesare Giorgini, and has been posted here with permission of the editors.

Suggested Citation

Garcia, Frank Joseph, Consent, Coercion and Trade: A Reflection on the Relationship Between Free Trade and Values (April 15, 2020). Le sens des libertés économiques de circulation / The Sense of Economic Freedoms of Movement (Jean-Sylvestre Bergé and Giulio Cesare Giorgini, ed., 2020), Boston College Law School Legal Studies Research Paper No. 528, Available at SSRN: https://ssrn.com/abstract=3576536

Frank Joseph Garcia (Contact Author)

Boston College - Law School ( email )

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Newton, MA 02459-1163
United States

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