Do Markets Degrade?
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02084.x |
| Author | Neil Duxbury |
| Published date | 01 May 1996 |
| Date | 01 May 1996 |
THE
MODERN
LAW
REVIEW
Volume
59 May
1996
No.
3
Do Markets Degrade?
Neil
Duxbury
*
Introduction
It is trite to state that certain things
-
such as genuine feelings of love
-
cannot
be
bought. It
is
no less obvious that there exist things which are not traded
-
even
though, in principle they could be
-
because, for one reason
or
another, they are
considered inappropriate for commodification. There also exist reasons for
ensuring that certain tradable goods are given special protections within the
market-place. The reasons for limiting the reach
of
markets
-
either by making
certain things inalienable at a price
or
by conferring special protections on tradable
items
-
are many and varied. Purchase of exemption from jury service is resisted
because justice ought not to
be
susceptible to manipulation by those with the
financial capacity to buy out jurors. The democratic process would
be
similarly
compromised were the purchase of parliamentary question-time permitted. Legal
estates
in land, while obviously tradable, cannot
be
physically delivered
and
therefore are conveyed by deed
so
as to minimise the risks of fraud and mistake.
There is, in short, an abundance of reasons for ensuring that certain goods are
either kept outside
of,
or accorded special protections within, the market domain.’
The purpose of this article is to examine one particular reason which is
sometimes used to justify such limiting of markets. The reason may
be
stated very
simply: markets can have a degrading effect.
To
place market values on certain
things
-
so
the reasoning
goes
-
is to value them incompletely
or
inappro-
priately, and therefore those things ought either to
be
regulated very sensitively
within the market arena
or
deemed non-commodifiable. In the first section of this
*Faculty of Law, University of Manchester. Earlier versions of this article were presented to the law
faculties at the universities of Bristol, Copenhagen, Keele, beds, Miami, Nottingham and Warwick, and at
Birkbeck College, London, Brooklyn Law School, New York, George Mason Law School, Virginia, and
Stetson University College of Law, Florida. Besides being grateful to all those who attended and
contributed to these events,
I
should also like to thank Margot Brazier, Roger Brownsword, James Carrier,
Hugh Collins, John Harris, Tim Ingold, Nicola Lacey, Martin Loughlin, William Lucy, Tim Murphy,
Anthony Ogus, Richard Posner, Hillel Steiner and Cass Sunstein for detailed comments on earlier drafts.
For further examples and discussion,
see
Walzer,
Spheres of Justice:
A
Defence of Pluralism
and
Equality
(Oxford: Martin Robertson, 1983) pp 10-103; Kelman,
What
Price Incentives?
Economisrs
and the Environment
(Boston, Mass: Auburn House, 1981) pp54-83; Etzioni,
The Moral Dimension:
Toward a New
Economics
(New York Free Press, 1988) pp77-83; Sunstein, ‘Disrupting Voluntary
Transactions’ in Chapman and Pennock (eds),
Nomos
XXXI:
Markers
und
Justice
(New York: New
York UP, 1989) pp 292-294.
1
33
1
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Modem Law Review
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1996
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The Modem Law Review
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article, I shall consider what it means to claim that markets can have a degrading
effect. There exists a sizeable literature devoted to the proposition that goods and
activities which are susceptible to being degraded by market valuations ought
either to be regarded as market-inalienable
or
considered tradable only
so
long
as
such trade does not affect their ‘non-market’ qualities. I take issue with this
literature. In the second section of this article, focusing on the problems of
commercialising human organs and surrogacy,
I
argue that although there may
sometimes exist strong feelings that markets do degrade certain goods and
activities, such feelings do not in themselves justify the placing of limitations
or
prohibitions on the commodification of those goods and activities. In
the
third
section of the article, I
try
to identify and address the principal problems with the
argument which I offer.
How
might markets degrade?
To claim that markets degrade is to claim that when certain goods and activities
are made the subject of market exchange, their value is significantly distorted.
There are two interrelated ways in which this claim tends to
be
supported. One
line of argument emphasises the peculiarly personal nature of certain kinds of
property; the other (seemingly more convincing) line of argument rests on the
claim that market valuations of certain goods and activities
are
demonstrably
inappropriate.
Property
and
personhood
Arguments which connect property with persons often lend weight to the claim
that property ought to
be
valued in market terms. Lockean theories of property,
for
example, tend not only to address the question of how property is initially acquired
by individuals, but also to emphasise the importance of permitting the voluntary
exchange of that which people own. Markets, after all, enable people to make gains
by trading their acquisitions.2 The theory of property which tends to
be
resorted to
by those who argue that markets can have a degrading effect, however, connects
property with persons in a rather different fashion.
In
his
Philosophy
of
Right,
Hegel claims that property is a medium through which individuals find freedom
and develop their personalities. ‘A person has
as
his substantive end
the
right of
putting his will into any and every thing and thereby making it his
. . .
This is the
absolute right of appropriation which man has over all
thing^",'^
including his
own life and body.4 Through the acquisition of property
-
by taking possession of
both our bodies and external objects
-
we acquire an identity in the world and in
relation to others: that is, when other people respect our proprietary claims, we are
accepted
as
persons and as bearers of rights.5 It is through the ownership of
property, moreover, that we are able to express, among other things, our individual
2
See
Locke,
Two
Treatises
of
Government
(1690, London: Dent, 1924), Book
11,
ch v,
$8
46-49 (on
initial acquisition and the development of money economies); Nozick,
Anarchy,
State
md
Utopia
(Oxford Blackwell, 1974) pp57-58 (on the acquisition and transfer
of
holdings).
3
Hegel’s
Philosophy
of
Right
(1821,
London: Oxford
UP,
trans
T.M.
Knox, 1952)
944.
4
ibid
5
47. For Hegel, however, the fact that we appropriate
our
own lives and bodies does not mean
that we have the right to sell our lives and bodies. See further
ff
40,
57.
5
See
Ritter, ‘Personne et proprittt selon Hegel’ (1968) 31
Archives de Philosophie
179, 189-195.
332
0
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1996
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