Most things can be sold, for example, cars, art, services, sperm, and life insurance; other cannot, such as life, people, and votes. What can and what cannot be sold has been highly contingent in history and geography. Demarcating the line between tradable and non-tradable goods is the goal of the commodification debate. In The Price of Everything, the Value of Nothing, a title inspired by Oscar Wilde’s famous definition of a cynic, I. Glenn Cohen provides a useful overview of the various positions in that debate, and adds another consideration to the essentialist position, namely that the implied expression of equilibrium that accompanies every trade performatively contradicts the fact that the traded goods (e.g., babies for cash) belong to different value spheres.
The problem is, of course, whether different spheres exist and if so, whether their existence is contingent or invariant. It strikes me that the definition of value spheres is directly reflective of a given society’s concept of equality. Equality, once applied, is never abstract; it is always equality with respect to something. We are willing to permit inequality in most affairs, for example, wealth, education, status, access to healthcare. With respect to certain things, however, we insist on equality, for example voting, standing before God, and the notion of basic rights. Similarly, for most things we permit the disturbance of an initial allocation of goods through trade. Some of these trades will lead to greater equality (for example where the initial distribution was exceedingly unequal) but most trades will, over time, lead to a state of increased and, if history is any evidence, persistent inequality. Here is where the notion of banned trades comes in. Wherever a society wants to protect the initial allocation of benefits and burdens, be it by design (e.g., voting) or fate (e.g., our bodies or the family that we are born into), it will seek to restrict trades that are likely to upset the original position. (Gifts have never been as corrosive as trade, because most people prefer to do good where it coincides with doing well. Thus, for example, donating organs is permissible but their sale is banned, as the threat of endemic organ donations is rather remote.) In other words, any inquiry into commodification must begin with, or at least include, an exploration of equality.
By the way, attempts to define and to create non-tradable goods (res extra commercium) has by no means be confined to such fundamental matters as babies, organs, votes, or live religious artifacts. (Dead religious artifacts, of course, are traded as objects of art.) Every manufacturer intent on preserving a predefined flow of goods, which is similar to maintaining an initial allocation of goods, imposes certain restraints on alienation on its wholesalers, such as territorial or customer clauses. In real property law, future interests serve a similar function, the pervasiveness of which gave rise to the rule against perpetuities. One may conjecture that the ubiquity of the underlying commodification problem (that is, the problem occurs even within one and the same value sphere) counsels against seeking a special, invariant status for certain goods based on either their nature or on the nature of trade involving such goods.
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