Blocked Exchanges: A Taxonomy Author(s): Judith Andre Source: Ethics, Vol. 103, No. 1 (Oct., 1992), pp.

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Blocked Exchanges: A Taxonomy* Andre Judith

Michael Walzer listsfourteen"blockedexchanges": ofJustice In Spheres thingswhichin the United Statescannot be bought or sold. 1 He does tojustice, so out of concernabout domination;althoughhis titlerefers his targetis oppression ratherthan inequalityas such. It lessens domspheres-aspects of life ination,Walzer argues, to recognize different are of principles distribution appropriate.Separating in whichdifferent these spheres limitsthe power any one person can acquire; even the greatestwealth,forinstance,should not be able to buy human beings, criminal justice, and so on. politicaloffice, But in fact,of course, money is vastlypowerful. If not human the attentionof beings, it can buy us servants;if not political office, if elected officials; not criminal justice, the best lawyerin the country. And everyday, it seems, thereis more and more thatmoneycan buy. Some of the new commoditiesare inventive:singingtelegrams,timeslices of condos; even the mortgage itselfcould be sold. Other comIn modities,actual or suggested, are more frightening. Europe one can sell one's own kidney:fora fewthousand dollars some people will removed and implantedin someone else's have one kidneysurgically body.2Richard Posner and William Landes have suggested a market in babies in the United States.3 His Walzer would impede this march toward commodification. listof blocked exchanges is rough and unorganized,suggestiverather It powerand influence; thanconclusive. includeshuman beings;political
* I began this articleduring a year as Fellow withthe Harvard Program in Ethics and the Professionsand completed it during a residencywiththe VirginiaFoundation for the Humanities and Public Policy and a RockefellerFellowshipwith the Institute of Medical Humanities, Universityof Texas Medical Branch. I am gratefulto Amy Gutmann for her encouragement and suggestions. of (New York: Basic, 1983), pp. 100-103. 1. Michael Walzer, Spheres Justice 2. J. Harvey,"PayingOrgan Donors," pp. 117-19; and Bob Brecher,"The Kidney Trade: Or, the Customer Is Always Wrong," pp. 120-23-both in JournalofMedical Ethics, vol. 16 (September 1990). See also TerryTrucco, "Sales of KidneysPromptNew Times(August 1, 1989), p. CI. Laws and Debate," New York 3. RichardA. Posnerand WilliamA. Landes, "The Economicsof theBaby Shortage," JournalofLegal Studies7 (1978): 323. Ethics103 (October 1992): 29-47 of reserved.0014-1704/93/0301-0003$01.00 X 1992 byThe University Chicago. All rights

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criminaljustice; freedom of speech, press, religion, and assembly; marriage and procreation rights;the rightto emigrate; exemptions frommilitary service,jury duty,and othercommunally imposed work; basicwelfare like political office; services policeprotection education; and desperate exchanges, such as those involved in accepting dangerous work;prizesand honors;divinegrace; love and friendship; criminal and acts. He believes the list is complete but leaves open the possibility thatit is not. His general positionis thatdifferent kindsof goods carry withthem different criteriaof distribution. Walzeris not alone in wantingto limit market. the Severaltheorists have offeredother approaches to restricting MargaretJane Radin, it. forinstance,distinguishes personal fromfungibleproperty:personal propertyis bound up withone's being the person one is; it is valued forits own sake and cannot be replaced withmoneyalone. Laws may therefore,she argues, prohibitits sale.4 Elizabeth Anderson argues not just fromthe nature of the goods in question but also fromthe nature of commerceand argues thatsome good thingscannot survive therein. Only those things should be for sale "whose dimensions of value are best realized withinmarketrelations."That is not true of gifts,shared goods, ideals, and objects of need, all of which require other kinds of social relations.5 us Walzer,Radin, and Anderson each offer a singleprinciplewith whichto bound the market.Radin's is broad and basic: protecthuman flourishing shielding nonfungiblepropertyfromthe full force of by the market.Walzer, too, works from a broad and basic principlelessenoppressionby usingdifferent in groundsfordistribution different spheres of life-but he also lists in detail what belongs outside the sphere of money.Anderson's perspectiveis in one sense plural, since marketshave a number of characteristics (impersonality, self-interest, be of want-regardingness, each of whichmight destructive different etc.), she witha singleprinciple:protect things.Yet ultimately too is working fromthe marketthose thingsto which it is essentially inhospitable. Mark Nelson takes a somewhat different approach: he lists ten examples of blocked exchanges and derivesfromthemnine principles. The principlesare only loosely related to one another.6
4. MargaretJane Radin, "Market-Inalienability," Harvard Law Review 100 (June 1987): 1849-1937. In an earlier articleshe argues that personal propertyshould also be privilegedagainst government control;i.e., the government needs morejustification or to take or redistribute controlit (MargaretJane Radin, "Property and Personhood," Law Review34 [May 1982]: 957-1015). Stanford 5. Elizabeth Anderson, "The Ethical Limitationsof the Market"(paper presented at the internationalmeetingof the Conference for the Study of PoliticalThought on Marketsand PoliticalTheory, WilliamsCollege, Williamstown, Mass., April 1989). 6. Mark Nelson, "The Moralityof a Marketin Transplant Organs," PublicAffairs 5 Quarterly (January 1991): 63-79. Nelson considers one principle, then notes an exception to it and formulatesa principle to account for the exception. To that, in turn,there is an exception; and so forth.

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In this article I present a new approach, neithera list (whether ofblockedexchangesor of unrelatedprinciples) a singleoverarching nor principlebut a set of logicallyrelatedconsiderations:a framework for thinking about the issue. Once we understandwhat a sale is and look closelyat Walzer'susefullist, findthatthereare a numberof distinct we grounds for blocking exchanges. Divine grace, for instance, should not be sold because it cannot be, and pretendingto do so is a fraud. The rightto marryshould not be sold because itshould be inalienable. Criminaljustice should not be sold because a bribed decision is not justice at all. Perhaps everyintermediate principleI uncoverhere could in turn be explained by Walzer's, Radin's, or Anderson's accounts; I do not try settlethathere. Since much theory to worksdirectly fromexamples, organizing those examples should help us evaluate any theoriesWalzer's, Radin's, Anderson's, or others. First,some background. We can be confused by a mental picture of a sale as primarilya physical exchange. We imagine one person handing another an object, say a pencil, while the second hands the first money.Now we all knowthatthischange of physicalrelationship, of what object is in whose hand, is neithernecessarynor sufficient to a sale. What is essential is that a set of rights,duties, and liabilities pass fromone person to the other.7The transfer depends on words or symbolicactions, and these may or may not include a physical exchange. When we buy a physicalobject or a piece of land, we acquire a set of legal rightsand duties concerningit, and the previous owner has the money we once had. (The legal statusesinclude, forinstance, the right to use what is owned, the rightsto its fruits,liabilityfor upkeep and taxes,and so on.)8 After sale each partyhas something the the other had before the sale: the rights,privileges, and so liabilities, on which are constitutive the legal status of ownership transfer of without alteration to the buyer; rights over a sum of money pass unchanged to the seller. Once we understandthis,we see somethingelse crucial: nothing can literally sold unless someone has certainpriorlegal relationships be to it. Roughly,nothingcan be sold unless it is first owned. Ownership
7. I willuse the phrase "rights, duties,and liabilities" and similarphrasesto indicate a fullHohfeldian set of legal statuses:claim rights, duties,privileges, powers,liabilities, and immunities (WesleyNewcombHohfeld,"FundamentalLegal Conceptionsas Applied in Judicial Reasoning," Yale Law Journal,vol. 23 (1913), and an articleby him of the same titlein the same journal, vol. 26 (1917), pp. 710-67. 8. The locus classicusis A. M. Honore's "Ownership," Oxford in in Essays Jurisprudence, ed. A. G. Guest (Oxford: Clarendon, 1961), pp. 107-47. His list includes rightsto possession,use, management,income, capital, security, transmissibility, others.In and "Full Ownership and Freedom" (1992, typescript), develop what I thinkis a more I ordered list.

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admitsof degrees; I can own a sewingmachine more completelythan I can own historicbuildings,for instance,since the law allows me to do whateverI want to the machine but not to the building. Not every set of rights, duties, and so on concerningan object constitutes ownership. Full ownership includes the privilegeof using something,a claim to stateassistancein excluding others,and the rightto alterand destroywhat is owned. Some subsets of the rightswhich constitute full ownership also count as ownership; I will not tryto explore the precise boundaries of the concept here. Nothing can be sold, then,unless rightsover it can and do exist. Nor can anythingbe sold unless it is possible to separate those rights fromthe person who has them. Unobjectionable sales concern rights whichnot onlycan existbut also morallymay; and whichit is not only possible but proper,as well,to separate fromthe owner.This supplies four different grounds on which an exchange mightbe blocked; and for of course thereis a fifth, possiblysomethingwhichis appropriately owned and givenshould nevertheless be sold. Some people believe not thisabout blood and kidneys.9 The same can be said of certainactions, such as sex (which,done formoney,becomes prostitution) judicial and decisions (which cease beingjust). In thisarticleI identify these considerations, fleshthem out, and organize them logically.I do not tryto refinethem or defend them. WHAT CANNOT OR SHOULD NOT BE OWNED SomeThingsbyTheirNatureCannotBe Owned Some of Walzer's blocked exchanges concern thingsover which legal rightsare not possible. The clearest examples are friendship,love, and divine grace. -An essential element in friendshipis sponand Friendship love. taneous mutual appreciation; love is a matterof joy in the other's and concernforhiswelfare. These attitudes presence(at leastsometimes) cannot be willed. The law cannot guarantee that theycontinue. That is not to say the law is helpless; it could punish breach of and the fearof punishmentmightlead to some promiseand adultery, and would be contingent indirect. curbingof desire.But the connection The essence of friendshipand love is an inner attitudebeyond the to reachof thelaw. Of courseone could have legal rights theirsimulacra, to companionship or service. But those are not the same thing.
set 9. There is a different of questionsabout ownership, havingto do withlanguage, which is beyond the scope of this article. I have an exclusive rightto the use of my and the law willhelp keep away anyone who wantsto takeitwithoutmyconsent. kidney, Whetherwe should call thatrelationshipownership,whetherwe should call our bodies is property, a question I do not address here. I will use the language of ownershipfor convenience,but I mean the words only to referto legal statesof affairs.

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Divine grace. -By definitionno one can have legal rightsto the fromGod. An omnipotentGod is beyond the pleasure of God or gifts reach of the state. It is meaningless to talk of protectingwith force one's status before God. The reason one cannot sell divine grace is that one does not own it to begin with. rightto simAgain, however,we could have a legallyconstituted ulacra, to the performance of certain actions by priests. Failure to with performancecould be punishable by performand interference law. But whether these actions bring with them grace is not up to human beings. If we move fromsecular to ecclesiasticallaw, thingsget murkier. have special powers. Some churches hold that some of theirofficers The church decides who holds those positions,and then God works throughthese people in special ways.In such a case the churchclaims over the grace control over a conduit of divine grace and indirectly itself.(There may be theologicalobjectionsto thispicture,but I want to set those aside.) What is claimed here is a kind of ownership,and thereforethe later questions of how these officescan and should be transferred can sensiblybe asked. a From thisdiscussionwe can formulate generalprinciple:nothing can be owned unless it is somethingover which laws can be effective. Affection and divine grace are not ownable because our having them is not subject to law. (We mightalso ask whyanyone would botherto forbida market which is impossible anyway.The answer must have to do with our fear of simulacra, which are quite possible and are degradations of somethingimportantand good.) There is a second way in which thingscan be not-ownable:the use of some things cannot be confined to any individual or group. the Some publicgoods are by theirnaturenonexclusive: air we breathe, in the climateof trust whichwe operate,quiet. To some of thesethings and conceivablythose rightscould be we can have enforceablerights, owned and sold. But since those rightsare not rightsto exclusiveuse, ownership. nor to alterationor destruction, theydo not constitute SomeThingsCouldBe (Fully)Owned,But ShouldNot Be -People should not be owned. The Kantianreasons Humanbeings. are familiar: people have purposes (and, neo-Kantians might add, and thesemustbe treated valuablein themselves. as and desires), feelings for Persons can and must take responsibility some of the shape their lives take; respectdemands thattheybe allowed to. Ownership makes the subjectivelives of others into means only. In fact,it mightseem that people not only should not be owned, they cannot be. Power over objects is direct: we can pick them up, move them, change them, destroythem. But power over people is

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we indirect: influencetheirchoices.Legal power over people ordinarily does is usually a matterof threatenedpunishment.The justice system would restrainor confinepeople, but the system sometimesphysically to not workunless mostpeople were dissuaded fromeven trying break the law. Nevertheless,this pictureis misleading,not in what it says about the way law influencespeople, but in what it suggestsabout owning objects. Propertyis not a relation between a person and an object, it is a relationamong people about thatobject. Somethingis legallymine only if I can call in the police to keep othersfromtakingit. Titles to because threat of legal diamonds, like titles to slaves, are effective punishmentinfluencesthe choices people make.'0 In slavery,of course, people were owned. A set of legal arrangements existed between people about other people. Because even an owned person makes choices, the slave owner had to use different means of controlthan a tractorowner would; he had to influencethe choices that the slaves made. The law, too, punished actions by slaves (and of course tractorsperformno actions); there is a differencein propertylaws about machines and those about people. But a major not element in slavery was that other people-nonowners-could withwhat a slave owner did and could not legallyhelp the interfere slaves escape. The state did not (much) limitwhat the owner could do and did limitwhat nonowners could do about it."1 over othersfalling People, then,can be owned. In factmanyrights rights.Some arise from farshortof slaveryhave been called property contract; employers and employees have rights over one another. Some arise fromstatus: parentscan make many decisions about their have enforceable and in turnchildren representation) (through children, Alimonyhas been called one rightsto support and proper treatment. spouse's propertyrightin the other. In all of these cases people can use some of the power of the state to persuade others to act. rights Perhaps these arrangementsshould not be called property at all. But questions of language aside, these otherrightsover persons help us define by contrastwhat should not exist: no one should fully own-have a complete legal rightto dispose of-any other human being. Publicgoods. -Although theydisagree about details,mostpolitical control, theorists agree thatsome publicgoods should be beyondprivate for reasons of efficiency, justice, or community.Earlier I spoke of
10. So, too, is the lack of legal recourse for a thief,who could not call in the law to keep others away, nor sell it and depend on keeping the proceeds. 11. This of course differedfromregime to regime. For a comprehensivestudyof and slaveryin manydifferent cultures,see Orlando Patterson, Slavery SocialDeath(Cambridge, Mass.: Harvard University Press, 1982).

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owned, like quiet; here I refer public goods that cannot be privately owned. I use the to thingsthat could be but should not be privately to term 'public goods' roughlyand stipulatively include those things life,such as defense and roads, thatare preconditionsof community resources,likewetlandsthat as well as those thatpreservecommunity and foreststhat manitainthe ozone layer. protectbiological diversity Furthermoresome of the necessitiesof individual life-food, water, and shelter-need to be publiclyavailable, but the prohibitionhere is against fullownershipnot of any particularloaf of bread but of the whole supply. the life of the comArt and historicalobjects partiallyconstitute ownership. and munity, some of theseneed to be keptfromtotalprivate A Rembrandt,the originalDeclaration of Independence-these must be protected.If theygo into privateownership,then it cannot be full the enjoyment ownership: personwho paid moneyforthesake ofprivate some should not have the rightto deface or destroyit. Furthermore, thingswhich merelyadorn communityor privatelife also should be kept public, thingslike beaches and parks. The general principlehere is thatforthe good of the community or the individualownershipof some thingsmustbe limited prohibited. falls Obviously there is a great deal of debate about what specifically under this principle, far more debate than I can address here. My the purpose is only to identify principleand relate it to others.So far I have named twomajor categoriesof blocked exchanges: those things cannot be owned (subject to legal control),and which,by definition, those things which should not be, for their own sake (e.g., human beings) or for ours (e.g., public goods). WHAT CANNOT OR SHOULD NOT BE ALIENATED SomeThingsCannotBe Alienated things.In one To alienate, to make other,refersto several different sense somethingis alienable ifit can be disconnectedfromthe person it is now connected to and yet go on existing.In this sense we can alienate land-transfer its ownership to someone else-but not our memories. In another sense to alienate somethingmeans simplyto cease to wroteof have it, whetheror not another acquires it. When Jefferson he inalienable rights, meant rightswhich not only could not be transferredto another person but also could not be lost. One partymightbe able to alienate an object whichanotherparty could not. Honors, for instance,can be refused,but once given and received cannot be put aside by the recipient.Once a Nobel laureate, always a Nobel laureate. But the committeewho awarded the honor could withdrawit, as theydo when theydiscoverfraud.

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theorists worry incapable are Few of the things about whichmarket of alienation. Nothing,forinstance,on Walzer's listbelongs here. His list concerns exchanges which have threatenedto happen, and need to (continueto) be obstructed. Or, as in the case of divinegrace,realms in whichwe fearcounterfeit and deception.There seems to be nothing of eitherkind to fear here. SomeThingsCould Be Alienated ShouldNot Be but Natural rightsmay be inalienable, but legal rightsare not. They can to be lost, and conceivablytheycould be transferred another. Much of Walzer's list belongs in this category: thingsthat not only should not be alienable for money but should not be alienable at all. We should not be able to sell our freedomsof speech, press,religion,and to assembly,our rightto emigrate,to marry, procreate-but neither should we be able to renounce them or give them away. The general armored principleis thatpersons should be in some respectsinvincibly oppressive agents.'2This principle againstthe stateand otherpotentially draws from an understanding of basic human flourishing-of the the needed forintimacy. independenceneeded formoralgrowth, privacy It also assumes the equal worthof all persons. Something similaris true of our welfarerightsto education and to police protection.It is not just that we should not be able to sell themto another. them; we should not be able to lose themor transfer The general principleis thatstatesshould provideeveryonewithwhat is essential for life and growth.That principlein turn appeals either to general beneficence,to the preconditionsof genuine democracy, of make possible. or to thejust distribution what communal efforts Principles of justice and democracy also apportion some duties another's military duty,for instance. equally. No one can fulfill have to do withour rights All of these restrictions alienability on against the stateand our duties towardit. Again, I do not tryto refine or defend the principlesat stake. Instead I want to identify objections to alienabilityqua alienabilityand separate them fromobjections to alienation for gain. WHAT SHOULD NOT BE EXCHANGED FOR GAIN When there is no objection to givingsome particularthingaway, we maystillobject to itsbeing givenin returnforsomething-particularly when what we gain is money. Two general concerns figurehere. (1) Concerns about the entitysold or traded: babies, for example. (2) Concerns about those who are doing the exchanging; objections to a so-called-as opposed marketin organs fithere. Finally,sale strictly
12. The transferof marriage rights may be forbidden on additional grounds. Suppose someone does notwantto marry;should she be able to hand over her particular rightto a friendwho wants to be bigamous?

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to barter-raises specificquestions. Does money make an exchange for gain worse? What is so filthy about filthy lucre? SomeMarkets Mistreat WhatIs Sold Babies can be given away. True, not even parentscan simplytransfer to someone else their legal rightsconcerning a child. All adoptions must be approved by the state. But parents (unless they'velost their own rights)can decide whetherto release a child for adoption and, often,to whom. In these ways, not absolute but not trivial,parents can give childrenaway. And theycould do so in returnfor gain. Many people hold that doing so would be trafficking human in beings,a formof slavery. But the rights and responsibilities transferred frombirthparents to adoptive parents are verydifferent fromwhat is transferred among slave traders. The state bars itselfand others from interfering with most of what slave owners do to their slaves; theprimary purpose of thelawsis to protect owners.Laws respecting the seek the welfareof the children.Slaves are parental rightsprimarily said to be owned because there is littlerestriction what may be on done to them. Children cannot be said to be owned. But at least two legitimateworriesabout marketin babies arise. One has to do withconsequences: new incentivestructures have unresults. But thereis a quite different predictable objection, independent of whetherthe effects the marketwould be good: is it rightto treat of babies as a crop? First, concernabout results. the When something acquiresexchange value, people have new reasons to acquire and protectit. A market in babies would not change the motivations adoptive parents,since of babies would be what anthropologists terminalcommodities:once call acquired, rightsover children could not again be traded. Adoptive parents' motiveswould be what theyare now, desires to love and be loved, to nurture,to pass on one's name, perhaps to be cared for in one's old age and rememberedafterdeath. (Note that some of these desires treatthe child as an end, some treatit as a means.) Biological parents, however, would have new reasons for what theydo. Some would begin pregnancies simplyfor what they could gain fromtrade. One result,the one emphasized by markettheorists, is that the supply of babies would be more likelyto match demand. Even the "perfect"market,however,has resultsbeyond itself.In this case therewould be more babies available foradoption. Perhaps more of these would be "desirable": healthywhiteinfants. But perhaps not; people who turn to this livelihood are likelyto be desperate, quite possibly sick or users of drugs. In either case the number of "less desirable" babies that go unadopted would be likelyto increase. No one knows for sure; economic analysis is partlymade up of in speculation.But it'sworthnotingsome of the othersituations which

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altered incentiveshave had unexpected results. One is the storyof For century. the Indians tobacco tobacco in Americain the seventeenth had ceremonialvalue; forthe Europeans it had exchange value. Once tobacco could earn money (or copper or guns) more of it was grown. Tobacco exhausts land, and new fields have to be begun every few years, so the demand for tobacco created a demand for land-and and violence. that led to conflict One reason, then, to hesitateabout givingbabies-or anything a else-exchange value is that doing so alters incentivestructures, consequences could hurt change with unforeseeable results. Some children,those conceived to be tradedas well as thosewho resultfrom as Yet or miscalculation misfortune. powerful thisobjectionis, it doesn't seem to capture our real concerns. There is something stubbornly Even babies as commodities. in untranslatable our objectionto treating and everyone if we could be sure that no one would be worse off, betteroff,human beings may not be treatedsimplyas means. As Kant said, human beingsshould notbe treated"as means only." always are since people virtually But the phrase needs unpacking,13 attentiononly to that usefulness useful to one another, and paying can be morallyunproblematic.We can ask someone the time of day, doinganything or standso thathe blocksthe sun fromour eyes,without wrong. "Treating someone as a means only" is not just an ignoringof their someone's intrinsicvalue but a denial of it as well. Affirming includes acknowledgingtheirworth;allowing them to intrinsic value all be, to function,and to grow; and fostering of that. Endangering, people are obvious cases of treatingthem as hurting,and destroying value.'4 Failure to acknowledgetheirworthis if theyhad no intrinsic more complicated subject. a implies "you are worthless"in some situations Not-attending-to gives a vivid example of the not in others. Richard Wasserstrom but former:a southernnewspaper reportedthat"all the childrenin town" when only the whitechildrenhad participated. took part in a festival, that puts waste in local water and never asks whetherthe A factory even waste is dangerous treatsits neighborsas if theydid not matter, if it turnsout that the waste is harmless. Treating someone "as a means only,"then,should be understood with harm;coercion; as actionsinconsistent valuingpeople in themselves: and those actions thatimplythatsomeone has no intrinsic deception; let value. With thatclarification, us returnto the question of markets
is 13. My treatment neo-Kantian ratherthan an exegesis of Kant himself. 14. Strictly speaking thisis true only if nothingelse is gained by the harm, force, or deception. But it is true then, and my purpose is only to illuminatethe connection between these wrongs and the failureto treatpeople as ends.

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that demean what is sold, using as our example a marketin babies. Exchange value is a particularformof instrumental value. Like other formsof instrumental value it coexistseasilywithintrinsic value; recognizing exchange value does not eliminatean appreciationof something'sintrinsic value. The dealer in oriental rugs or in renaissance paintingsmayfully appreciate the beautyof his stock.But the decision to sell somethingis a decision about itswhole future,made purelyon the grounds of gain to the seller. If the "stock" is babies, the state might hedge the transactionwith safeguards,and the birth parents mightchoose the buyer carefully. But if you conceive a child you do not mean to keep, you may be forcedto let it go to an unsatisfactory home-or keep it where it is unwanted. You have done something withprofoundimplications anotherperson'sfuture, for and yourmost importantmotivationhad nothing to do with that person's welfare. You have treateda human being as a means only. Now in mostactual cases of contractedmotherhoodthe biological mother has been confidentthat there is a familyeager and able to care for the child; although these women would not have conceived unless moneywere offered, neitherwould theyhave done so ifa home were not available.15It isjust because theirmotivations mixed that are we are unclear how to respond. If they believed they were not enwere nottreating as ifithad no intrinsic it dangeringthebaby,thenthey value. Yet a publiclysanctionedmarketin babies, of the kindforwhich Posner argues, would allow conceptionswhereneitherthe mothernor fatherintended to raise the baby.Whetheror not thatever happened, providing legal space forit would be tantamount approval of it. the to In any case my purpose here is not to resolve the dispute about contracted but motherhood to isolateand explicateone kindof objection to markets.A different example of the objection arises for scholars. We study and write for many different reasons; in part we want a securejob and the respect of others,but we also do it for the sake of the work: we want somethingimportantto be betterunderstood.'6 Inevitably, though, work earns rewards,and the reward can become too important. The morewe shape our workto earn moneyor attention, the more uncomfortablewe (should) become; when the pursuit of moneyor glorydominates,then our workhas been demeaned. (I give more attention later,in the fourth section,to the waysin whichactions change theirmeaning when done for money.)
15. I owe the term'contractedmotherhood'to Sara Ann Ketchum. As she points out, "surrogate"mothersare just motherswho have agreed to transfer theirrights over theirchildrento others,usuallythe biologicalfather ("SellingBabies and SellingBodies," Hypatia4, no. 3 [Fall 1989]: 116-27). 16. We also want to be its author; this is a desire for personal worthiness.Some mightcall that an admixtureof egoism; I would not, but that is a subject for another day.

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Are SomeMarkets Bad for Sellerand Buyer opposition. in of The suggestion a market human organsexcitessimilar is not a human being; treatinghair, for Yet a part of a human being instance,as a commodityis not treatinga human being "as a means mentionedabove only."But fearsabout alteringincentivestructures, for the object of exchange, also fithere; if because of consequences money can be made fromselling organs, a lot more of them will be offered.That would seem to be good forthose who need transplants, would theirorgans for profit but not unequivocally; people offering have a reason to conceal factsmakingtheirorgans unsuitable.Beyond that, we all know that those most likely to submit to painful and and to accept the risksinvolved,willbe the poor. In invasivesurgery, contractedmotherhood in the United States poor women offertheir wombs and theirbabies, rich women pay for them. In other words, we wonder about endangering buyersand exploitingsellers. of Besides the question of unfairtreatment one party,objections involved. concernthe natureof the relationship to exchange sometimes relationship RichardM. Titmussargued thata gift In TheGift Relationship involveconcern essentially is superiorto a commercialone, since gifts demands onlyrationalself-interest.17 forotherpeople, whilethe market He held that puttingsomethingon the marketdestroysthe "deeper freedom" to give what is priceless.'8 Defending this position, Peter Singer talks about changes in social understanding: "The idea that and concern,thatone may othersare depending on one's generosity oneself . . . need the assistance of a stranger,. . . [that]we must rely on the good will of others rather than the profitmotive-all these vague ideas and feelings are incompatible with the existence of a marketin blood."'9 Some of these concerns are easier to specifyand to remedythan others. Diseased and defective organs can often be identifiedand to discarded.20 Exploitationand injusticeare fartrickier deal with;the philosophical literatureon these issues is large. The same is true of claims about lost freedom,2'and of fears about changes in social reRelation(New York: Pantheon, 1971). 17. Richard M. Titmuss, The Gift and Commerce: A Defense of Titmuss againstArrow," 18. PeterSinger,"Altruism in 2 Philosophy PublicAffairs (1973): 312-20, and "Freedom and Utilities the Distriand and Morals,ed. Gerald Dworkin,Gordon Bermant, bution of Health Care," in Market and Peter G. Brown (Washington,D.C.: Hemisphere, 1977), pp. 163-64; cited in L. 33 Quarterly (July Lomasky,"GiftRelations,Sexual Relationsand Freedom,"Philosphical 1983): 250-58. 19. Singer, "Altruismand Commerce." about this. For instance,HIV oftenis not 20. Public discourse is overlyoptimistic Furthermore solutionis possible this detectableuntilmonthsafterit has been contracted. only when we're talkingabout organs. If someone conceives a baby in order to sell it, then discoveringits medical problems only reveals the problem. It solves nothing. 21. I examine thisissue in detailin my"Full Ownershipand Freedom" (n. 8 above).

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lationshipsand in cultural climate. In this article I only locate those concerns; I do not refineor defend them. AddsParticular Money Problems The objections I have identifiedso far apply to barter as well as to sale. But sale-exchange formoney-creates severalparticularproblems. Money is a peculiar thing. By definition is highlyabstractand it makes a fullyordered set with no highest number; its distribution tends to be highlyuneven and based on limitedcharacteristics. Each of these dimensions has ethical implications. First,prices are fullyordered: everyprice is eitherequal to, less than, or more than everyother price. Everything priced is commensurable: this diamond ring is worthfour thousand roller skates; that airplane cost twicewhat this house did. Should rightsover babies be put on the market,a child would know that she cost,say, about what a second car forthe family would have cost. She mightalso know that she cost more, or less, than other children.One moral danger, then, is an erosion of our sense of the uniqueness of what once was "priceless."22

Second, moneyaccumulates. It is a formof power,as are physical strength, talent,legal status,and social standing. Like these, money begetsmore power: markets be cornered, can resources bought,political influencecultivated.But unlike most other formsof power, money can be accumulatedendlessly: thereis no highest number.Futhermore, preservingit is relatively simple; money does not rot, it takes up no room, and it can often be guarded more efficiently than objects. Third, money accumulates unevenly. Not only do some people have vastly morethanothers, it they collect through variouscombinations of good fortune,hard work,and native ability. Moral desertis at best one of the factorsat work. Perhaps luck, effort, and abilityare good reasons for allowing someone to travel more widely and live more than others can. But it is not clear that theyjustifya comfortably greaterchance at surviving disease or at establishinga family.
22. It is not my purpose in this articleto evaluate these possibilities. For further discussion,see Nancy C. Hartsock,Money, Sex,and Power(New York: Longman, 1983), p. 98 and passim; ErickMack, "Dominos and the Fear of Commodification," NOMOS in XXXI: Markets and Justice, John W. Chapman and J. Roland Pennock (New York: ed. New YorkUniversity Press, 1989), pp. 198-225, esp. p. 217;Jan Narveson,"TheJustice of the Market: Commentson Gray and Radin," in Chapman and Pennock,eds., p. 271; and MargaretJaneRadin, "Justice and the MarketDomain," in Chapman and Pennock, eds., pp. 165-97, esp. p. 171. Many have argued recently that we humans are far too arrogant about the differences between ourselves and the nonhuman world. But the thrust those argumentsis almostalwaysto give greaterstatusto the nonhuman rather of than less to the human.

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Fourth,moneyis purelyinstrumental. Assigninga monetary value to somethingemphasizes its instrumentality makes it more likely and that that thingbe treatedsimplyas a means. Fifth, moneyprovidesdiminishing marginalutility. One hundred dollars means less to a Rockefellerthan to a postal clerk. And some things,perhaps, should cost us roughlyequally. The abuse of indulgences illustratessome of this. Suppose we thatafterdeath accept fora momentsome theological presuppositions: people will sufferfor a while in purgatoryuntil, purified,they are allowed into heaven, and thatvoluntary penance on earthcan reduce timein purgatory. Suppose we accept,too,thatthechurchcan designate thatsome actionsare equivalent to others:thatsayingcertainprayers, forinstance,reduces purgatorytimeas much as one hundred days of penance would. From here it'san easy step to rewarding certainhelpful or actions withindulgences,actions such as cleaning the sacristy embroidering vestments.And after that comes the fall: what is more helpfulthan money?Whynot rewardcontributions thechurchwith to indulgences? (On thisinterpretation churchdid something should the it not have done, ratherthan claimed to do somethingit could not have done. The second question raises quite different issues.) The church should not have sold indulgences because money is too far removed fromthe sphere of personal desertto whichindulgencesare properly attached. A cost in dollars is not the same as cost in sincere prayeror bodily service. Another example is the legal obligation to serve one's country. No kind of contributionwould cost everyone exactly equally; time means more to some people than others,physicaleffort comes more or less easily. Still,time and effort burden people more equally than monetaryexpense does. So we forbidbuyingone's way out of service in order to make more equal demands on each person. If we turnto whatshould noteven be owned,much less transferred to others, money darkens that picture,too. Is it worse to sell slaves than to give them away? Yes, other thingsbeing equal, and forsome of the reasonsjust given. If it is degrading to be owned-to be fully subject to the will of another-being priced adds insultto injury:the slave is one commodity among others,worthperhaps less thana house and more than a horse. Furthermore,the slave being sold is treated as "a means only." In an auction or purelycommercialsale, the seller must yield to the highestbidder or the first offer. The decision about the slave's new owner,one which deeply affects slave, is not made the for the sake of the slave. Seller and buyer need only be moved by theirown self-interest. WHEN ACTIONS ARE "FOR SALE" When contracts,promises,and agreementsto act involvemoney,we sometimesuse the language of sales: "He sold his talentsto Exxon."

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"MGM has bought her next two performances." This is especiallytrue when we disapprove of what happened: "She sold out." "The senator has been bought." From Walzer'slist,the following concernactionsdone formoney: "desperateexchanges" such as dangerous or degradingwork,"selling" politicalpower and influence,public office, and criminal justice, and agreementsto break the law. AreAgreements Acta FormofSale? to I would argue that these transactionsare not really sales: that the "seller" does not hand over, unchanged, a bundle of legal rightsand whichhad made him an "owner."Others,however,hold that liabilities are for theseagreements a kindof sale: that, example,whena ballplayer signs with a team, he sells it exactlywhat it can then sell to another team: rightsover the use of his time. In opposition I would note, first, thatit is oftena struggleto say Freedom? (Honor?) clearlywhat has been sold. Time? Effort? Ability? "owned" Second, whateveritis thathas been sold, itwas not originally in the same sense that land and licenses are. Third, there is notjust a trade in legal statuses. Typically the employee must now seek the employer'sgoals, the employermust provide forand protectthe employee. None of these obligationsexistedbeforethe initialagreement was struck.Compare this with the sale of a house, or of a player's contract:the new owner now has exactlythose rightsand liabilities which the previous owner had. In contrast,most of the legal rights, and so on thatresultfromcontracts servicearise de novo. of liabilities, They do not preexist the arrangementand thus are not transferred fromone partyto the other. Finally,the courts treat contractsfor personal service quite difthan theydo sales. When a sale is held to be valid, the seller ferently mustrelinquishwhat she sold. But when the courtsenforcea contract of service, "seller"(thepersonwho receivedmoney)is rarely the required to do whathe promisedto do (althoughhe willhave to makerecompense of some kind). I thinkthe attractiveness the "sale" paradigmreflects extent of the and neoclassical economics,operate as unto whichexchange theory, challenged assumptions. Note, for instance,the persistenttendency to thinkof giftsas disguised sales. here. WhetheragreeHowever,I need not settlethedisagreement mentsto act reallyare sales or onlymetaphorically certain so, interesting questions arise withinthem,and only withinthem. TheMoral Considerations Before presentingthe questions specificto the "sale of actions," let me note thatmany of the problemsI have identified ordinarysales in also crop up here. We block employment contracts dangerous and for

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degrading work out of fear of injustice and exploitation,the same reasons for which we block the sale of organs. Most contracts servicewhichare blocked,however,are blocked for for a different reason. They concern actions, and actions inherently involve purposes. When somethingis done for money,it is done for a different purpose than it otherwiseis, and the change in purpose can change the natureof the action.To use an example of Eric Mack's, version"of prostitution.23 sexual love is not simplya "fee-free Many interactions change so radicallywhen theyare done for money that theyneed new names. Take the courtsystem:ajudge whose decisions have been bought is no longer dispensing'justice," because he or she is no longer deciding on the basis of evidence and law. The new institution-criminalinjustice,let us call it-is inferior to the one it replaces. Of course thejudge has broken promisesand broken the law, which adds to her wrongdoing; but it is notjust the fact of her promise that matters,but its substance as well. Criminal justice, ideally, treatspeople equally; in it (again, ideally) people determinetheirown futures thechoices theymake.24 by Bribery destroys all this. The special characteristics money highlightsome of what has of been lost. For one thing,since money accumulates so unevenly,no kind of equalitybeforethe law survives.For another,one's fatebefore to the law depends not on one's conformity it, but on the luck and whichbroughtone money.Those qualitieswhichlead to wealth, effort even the most admirable of those qualities,are only a subset of what makes people worthy. The same is true of democraticoffice.When the person in office is chosen by the voters,the officeis democratic;when the person in officeis chosen by people withthe most money,the officeis not. Sex is a borderlinecase of thiskindof essentialchange. Ordinarily sexual interaction expressesmanythings, among themdesire,affection, The lovers may be set on exploitation,mutual love, or commitment. reverence,pleasure, determineddedication,or some combinationof these and other purposes. All of thisinformswhat theydo and what theyexperience. In commercial the partners sex need to care onlyabout themselves. Each wants one thing-money, satisfaction, domination-and each agrees to give what the other wants. Neither needs to care about the other. Objections to prostitution assert that sexual interaction should notbe a meeting mutually of self-interested one parties, treating another onlyas a means to theirown ends. Objectors hold thatmutualconcern whichmakes is centralto sex as it should be and thatany arrangement mutual concern unnecessaryand unlikelyshould not exist.
23. Mack, pp. 198-21 1. 24. Herbert Morris,"Persons and Punishment,"The Monist52 (1968): 475-501.

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Divine favoris somethingelse which would not be what it is if it could be bought. I suppose a deityis imaginable who looks withfavor upon the wealthy25 upon those who support his workwiththe most or money.But thatcould not be the God of theJudaeo-Christian-Islamic tradition, loving all equally, responding to purityof soul. Respect is another interesting case. On the face of it we cannot respect someone because of the amount of money she has. Yet in a way we do; we can certainly impressed.And we mightwell respect be the effort and abilitywhich brought her wealth. Still,that would not be respectingher for her money,but forwhat the money represents. And it's hard to imagine one person paying another for respect; one would get instead respectfulactions,what MacIntyrecalls 'simulacra', not the same thingat all. And so for prizes and honors: they represent accomplishment and merit.If theycould be bought, theywould representsomething else: the luck, particulareffort, and specificabilitieswhich give one wealth. When a prize is bought, it is not reallya prize at all. Prohibitionson doing somethingfor pay, then, usually concern actions whose verynature changes when money motivatesthem.Our language suggeststhatit is the presence of moneywhichcontaminates the interaction.Almost always phrases like "X is for sale," when they are not literally true,are pejorative. My analysissuggeststhatit is not so much the presence of money as the absence of other things to which we object; but that is not quite the whole picture. Take, for Carterforhis workin conflict instance,a recentarticlepraisingJimmy resolution. In saying "For Carter the presidencyhas a 'Not for Sale' sign," the writerimplicitly criticizesRonald Reagan, who accepted a milliondollars fora briefappearance in Japan. The implicitcriticism was notjust of the formerpresident'sdoing nothing,but of his using his officefor self-interest. We use termslike buying and selling,then, partlyto lament the extinctionof something good but also to rebuke the substitution of for self-interest the other, preferable,motives. If what Reagan had received were a pricelessnetsuke suspect therewould have been less I outcry. Money seems to us the capital occasion for selfishness, because-I think-of itspure instrumentatility. Desire formoneyhas no admixtureof appreciation of something'sintrinsic value, as would desire for an exquisite carving. CONCLUSION Questions about the proper scope of the marketwill always be with us. Money is so powerful that the borders between its domain and others will always need defense. At the beginning of this article I
25. Calvin's God, I believe, rewarded the worthy withprosperity. The wealth was a sign, not a cause, of divine favor.

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described a number of perspectiveswhich have been offeredto help us draw thebordersclearly.MargaretJaneRadin protects nonfungible property fromthe fullforceof the market;Michael Walzer limitsthe market in order to lesson oppression; Elizabeth Anderson analyzes marketrelations (impersonality, and so on) and shows self-interest, thatsome good things cannotsurvive within them.Mark Nelson derives a number of principlesfroma set of examples; the examples are not logicallygenerated,and the principlesare only loosely related to one another. The perspectiveI offerhere is more complex. There are many reasons whysome sales cannot or should not take place. The questions we need to ask include the following: -Is Thepossibility ownership. it possible forthisentity be conof to trolled by legal arrangements?(Divine grace and friendshipcannot be.) that control. this the kind -Is The morality ownership, is, exclusive of of thingwhich may legitimately controlled?(No person should be be completelysubject to another.) Is this the kind of thing which may be legitimately kept fromothers?(Public goods should be available to all.) The possibility alienation, thatis, separation. Can this thing be of separated from the person to whom it now attaches? (Moral rights cannot be lost.) Themorality alienation. -Should itbe possible foranyone to lose of this? (Basic civil rightsshould be inalienable.) The impactof themarket whatis exchanged. on -Does exchanging this thing for gain endanger or demean it? (Some babies conceived for sale would suffer;some would be treated "as means only.") on and -Does exchangingthis The impact themarket buyer seller. of thingfor gain exploit, endanger, or demean anyone? (Commercially obtained organs maybe contaminated;sellersare poor and desperate.) To what extent does the marketrelationshipof mutual self-interest crowd out other relationshipsof mutual concerns? The way money shapesan interaction. -Everything priced is comof mensurable.(Can we retainan understanding a child'simmeasurable worth if the child was purchased?) Money is unevenly distributed; accumulating it depends upon luck, work, and ability.(Should civic duties be distributed upon different criteria,perhaps equally?) someactions. Thefact thataccepting -Does money essentially changes allowing people to do this for the sake of money destroysomething of value (democratic office, prizes,criminal justice)or replacea desirable witha less desirable or bad one (prostitution)? institution I doubt thatany single principleor perspectivecan synthesize all these questions. Yet they are more than simplya list. They form a logicallyrelated set which can help us thinkin an orderlyway about the questions which steadilyconfrontus.

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Many audiences have pointedout to me thatthesequestionsare doublesided. A relationshipcan be improved, for instance,by being commercialized: money can counter social prejudice and bring it about, for example, that racistssell to and behave civillytoward minorities. The positive side of commodification could be approached through the same taxonomywithwhichI have here sketchedthe negativeside.