And Re Blocked Exchanges

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Blocked Exchanges: A TaxonomyAuthor(s): Judith AndreSource: Ethics, Vol. 103, No. 1 (Oct., 1992), pp. 29-47Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2381494 .

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Blocked Exchanges: A Taxonomy*JudithAndreIn SpheresfJustice ichael Walzer istsfourteen blockedexchanges":thingswhich n the UnitedStatescannot be bought or sold. 1He doesso out of concernabout domination;althoughhis title efers ojustice,his target s oppressionrather haninequality s such. It lessensdom-ination,Walzer argues,to recognizedifferentpheres-aspects of lifeinwhichdifferentrinciples f distributionre appropriate. eparatingthese spheres limits he power any one person can acquire; even thegreatestwealth,for nstance, houldnot be able tobuy humanbeings,politicaloffice, riminalustice, and so on.But in fact,of course, money is vastlypowerful. f not humanbeings, t can buy us servants; f not politicaloffice, he attention felected officials;fnot criminalustice,the bestlawyer n thecountry.And everyday, tseems,there s moreand more thatmoneycan buy.Some ofthe new commodities re inventive: inging elegrams, ime-slicesof condos; even the mortgage tself ould be sold. Other com-modities, ctual or suggested,are more frightening.n Europe onecan sellone's ownkidney:for fewthousand dollarssome people willhave one kidney urgically emovedand implanted n someone else'sbody.2RichardPosner and WilliamLandes have suggesteda marketin babies in the United States.3

Walzer would impede this march toward commodification.Hislistof blocked exchangesis roughand unorganized, uggestive atherthanconclusive.t includeshumanbeings;political ower nd influence;* I began this articleduringa year as FellowwiththeHarvardProgram n Ethicsand the Professions nd completed tduringa residencywith heVirginiaFoundationforthe Humanities and Public Policyand a RockefellerFellowshipwith the Instituteof Medical Humanities, University f Texas Medical Branch. I am gratefulto AmyGutmannforher encouragementand suggestions.1. Michael Walzer,Spheres fJustice New York:Basic, 1983), pp. 100-103.2. J. Harvey, PayingOrgan Donors," pp. 117-19; and Bob Brecher, The KidneyTrade: Or, the Customer Is AlwaysWrong,"pp. 120-23-both inJournal fMedicalEthics, ol. 16 (September1990). See also TerryTrucco, "Sales ofKidneysPromptNewLaws and Debate," New York imesAugust 1, 1989), p. CI.3. RichardA. Posner nd WilliamA. Landes,"The Economics f theBabyShortage,"Journal fLegal Studies (1978): 323.

Ethics103 (October 1992): 29-47X 1992 byThe UniversityfChicago.Allrights eserved. 014-1704/93/0301-0003$01.0029


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30 Ethics October 992criminal ustice; freedom of speech, press, religion, and assembly;marriage and procreationrights; the rightto emigrate;exemptionsfrommilitaryervice,jury uty, nd othercommunallymposed work;political ffice; asicwelfare ervicesikepoliceprotectionnd education;desperate exchanges, such as those involved n acceptingdangerouswork;prizes nd honors;divinegrace; ove and friendship;nd criminalacts. He believes the list is completebut leaves open the possibilitythat t snot.His general position s thatdifferent indsofgoods carrywiththem differentriteria f distribution.Walzer s not alone inwanting o imit he market. everal theoristshave offered therapproaches to restrictingt.MargaretJane Radin,for nstance,distinguishes ersonalfromfungibleproperty:personalproperty s bound up withone's being the personone is; it is valuedfor tsown sake and cannot be replacedwithmoneyalone. Laws maytherefore, he argues, prohibit ts sale.4 Elizabeth Anderson arguesnot ust fromthe nature of the goods in question but also fromthenatureof commerceand arguesthat ome good things annotsurvivetherein.Only those thingsshould be for sale "whose dimensions ofvalue are best realized withinmarketrelations."That is not true ofgifts, hared goods, ideals, and objectsof need, all of whichrequireotherkinds of social relations.5Walzer,Radin,and Anderson each offer s a singleprinciplewithwhichto bound themarket.Radin's is broad and basic: protecthumanflourishing y shielding nonfungibleproperty romthe full force ofthe market.Walzer, too, works from a broad and basic principle-lessenoppressionby usingdifferentroundsfordistributionndifferenspheres of life-but he also lists n detail what belongs outside thesphere ofmoney.Anderson'sperspective s in one sense plural,sincemarketshave a number ofcharacteristicsimpersonality,elf-interestwant-regardingness,tc.), achofwhichmight e destructivef differenthings.Yetultimatelyhe tooisworkingwith singleprinciple:protectfromthemarket hose thingsto which tis essentially nhospitable.Mark Nelson takes a somewhatdifferentpproach: he lists tenexamplesof blockedexchangesand derivesfrom hemnineprinciples.The principles re onlylooselyrelatedto one another.6

4. MargaretJane Radin, "Market-Inalienability,"arvardLaw Review 100 (June1987): 1849-1937. In an earlier article he argues that personal property hould alsobe privileged gainstgovernment ontrol; .e., thegovernment eeds more ustificationto takeor redistributer control t MargaretJane Radin, "Propertynd Personhood,"Stanfordaw Review34 [May 1982]: 957-1015).5. ElizabethAnderson,"The EthicalLimitations fthe Market" paper presentedat the internationalmeetingof the Conference forthe Studyof PoliticalThought onMarkets nd PoliticalTheory, WilliamsCollege, Williamstown,Mass., April 1989).6. MarkNelson, "The Morality f a Market n TransplantOrgans,"PublicAffairsQuarterly (January 1991): 63-79. Nelson considers one principle, then notes anexception to it and formulates principle to account for the exception. To that, nturn,there s an exception; and so forth.


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Andre Blocked xchanges 31In thisarticle present a new approach, neither list whetherofblocked xchanges rofunrelated rinciples) or a single verarchingprinciplebut a set oflogically elatedconsiderations: framework orthinking bout the issue. Once we understandwhat a sale is and look

closely tWalzer'suseful ist,wefind hat here re a numberofdistinctgrounds forblockingexchanges. Divine grace, forinstance, shouldnot be sold because itcannotbe, and pretending o do so is a fraud.The right omarry hould notbe soldbecause itshouldbe inalienable.Criminal ustice should not be sold because a bribeddecision is notjustice at all.Perhapsevery ntermediate rinciple uncoverherecould inturnbe explained byWalzer's,Radin's, or Anderson's accounts; I do nottry osettle hathere. Sincemuchtheoryworksdirectlyrom xamples,organizingthose examples should help us evaluate any theories-Walzer's,Radin's,Anderson's,or others.First, ome background. We can be confusedbya mentalpictureof a sale as primarily physicalexchange. We imagine one personhanding another an object, say a pencil,while the second hands thefirstmoney.Now we all knowthatthis hangeofphysical elationship,ofwhatobject is in whose hand, is neithernecessarynor sufficientoa sale. What is essential is that a set of rights,duties,and liabilitiespass fromone person to the other.7The transfer epends on wordsor symbolicactions, and these may or may not include a physicalexchange.When we buy a physicalobject or a piece of land, we acquire aset of legal rights nd duties concerning t,and the previous ownerhas themoneywe once had. (The legal statuses nclude,for nstance,the right to use what is owned, the rightsto its fruits, iability orupkeep and taxes, nd so on.)8After he sale each partyhas somethingtheotherhad before the sale: therights, rivileges,iabilities,nd soon which are constitutive f the legal statusof ownershiptransferwithoutalterationto the buyer; rightsover a sum of money passunchanged to the seller.Once we understandthis,we see something lse crucial:nothingcan literally e sold unlesssomeone has certainprior egalrelationshipsto it.Roughly,nothing an be sold unless it s firstwned. Ownership

7. I willuse thephrase "rights, uties, nd liabilities"nd similar hrases to ndicatea fullHohfeldian setof legal statuses:claimrights, uties,privileges, owers, iabilities,and immunitiesWesleyNewcombHohfeld, Fundamental egal Conceptions s AppliedinJudicialReasoning," Yale LawJournal,vol. 23 (1913), and an articlebyhimof thesame title n the same ournal, vol. 26 (1917), pp. 710-67.8. The locusclassicus sA. M. Honore's"Ownership,"nOxfordssaysnJurisprudence,ed. A. G. Guest (Oxford: Clarendon, 1961), pp. 107-47. His listincludes rightstopossession,use, management, ncome,capital,security,ransmissibility,nd others. n"Full Ownership and Freedom" (1992, typescript), develop what I think s a moreordered list.


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32 Ethics October 992admitsofdegrees; I can own a sewingmachine morecompletely hanI can own historicbuildings,for nstance, ince the law allows me todo whatever want to the machine but notto the building. Not everyset of rights, uties,and so on concerning n objectconstitutes wn-ership. Full ownershipincludes the privilegeof using something,claim to stateassistance n excluding others, nd theright o alter anddestroywhat is owned. Some subsets of the rightswhichconstitutefullownership also count as ownership;I willnot try o explore theprecise boundaries of the concept here.Nothingcan be sold, then,unless rights ver it can and do exist.Nor can anything e sold unless it is possibleto separatethoserightsfrom he person who has them. Unobjectionable sales concern rightswhichnotonly can existbut also morallymay; and which t s not onlypossible but proper,as well,to separate from he owner. This suppliesfour different roundson which an exchange mightbe blocked; andof coursethere s a fifth,orpossibly omethingwhich sappropriatelyownedand givenshouldnevertheless ot be sold. Some people believethis boutblood and kidneys.9 he same can be said of certain ctions,suchas sex (which,done formoney,becomesprostitution)nd udicialdecisions(whichcease being ust).

In thisarticle identifyheseconsiderations, lesh hemout,andorganize themlogically. do not try o refine hemor defend them.WHAT CANNOT OR SHOULD NOT BE OWNEDSomeThings yTheirNatureCannotBe OwnedSome of Walzer's blockedexchangesconcernthingsoverwhich egalrightsare not possible. The clearestexamples are friendship, ove,and divinegrace.Friendshipnd love. An essential element n friendships spon-taneous mutual appreciation; love is a matter of oy in the other'spresence at east ometimes)nd concern orhiswelfare. hese attitudescannotbe willed.The law cannot guarantee thattheycontinue.That is not to say the law is helpless; it could punish breach ofpromiseand adultery, nd thefear ofpunishmentmight ead to somecurbing fdesire.But the connectionwould be contingentnd indirect.The essence of friendship nd love is an inner attitudebeyond thereachof the aw.Of courseone could havelegal rightso their imulacra,to companionshipor service.But thoseare not the same thing.

9. There is a differentetofquestions bout ownership, aving o do with anguage,whichis beyond the scope of thisarticle. have an exclusiverightto the use of mykidney, nd the aw willhelp keep away anyonewhowants otake twithoutmy onsent.Whetherwe should call thatrelationship wnership,whetherwe should call our bodiesproperty,s a question I do notaddress here. I will use thelanguage ofownershipforconvenience,but I mean thewordsonlyto refer o legal statesof affairs.


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Andre Blocked xchanges 33Divine grace. By definitionno one can have legal rights o thepleasure of God or gifts romGod. An omnipotentGod is beyond thereach of the state. It is meaningless to talk of protectingwith forceone's statusbefore God. The reason one cannot sell divine grace is

that one does not own it to begin with.Again, however,we could have a legallyconstituted ight o sim-ulacra, to the performanceof certainactions by priests. Failure toperform nd interferencewith performance ould be punishable bylaw. But whether these actions bring with them grace is not up tohuman beings.Ifwe move from ecular to ecclesiastical aw, thingsget murkier.Some churcheshold that some of their officers ave special powers.The church decides who holds those positions, nd then God worksthrough hesepeople in special ways. n such a case the churchclaimscontrolover a conduit of divinegrace and indirectly ver the graceitself. There maybe theologicalobjectionsto thispicture,but I wantto set those aside.) What is claimed here is a kind of ownership, ndtherefore he later questionsof how these offices an and should betransferred an sensiblybe asked.Fromthisdiscussionwe can formulate generalprinciple:nothingcan be owned unless it is something ver which aws can be effective.Affection nd divine grace are not ownable because our having themis not subjectto law.(We might lso ask whyanyonewould bother to forbid marketwhich is impossible anyway.The answer musthave to do with ourfear of simulacra,which are quite possible and are degradationsofsomething mportant nd good.)There is a second way in whichthingscan be not-ownable: theuse of some thingscannot be confined to any individual or group.Some public goods are bytheirnaturenonexclusive: he air we breathe,theclimateoftrust n whichweoperate,quiet.To some of thesethingswe can have enforceablerights, nd conceivably hoserights ould beowned and sold. But since thoserights re notrights o exclusiveuse,nor to alterationor destruction, heydo not constitute wnership.SomeThingsCouldBe (Fully)Owned,But ShouldNotBe

Human beings.People should not be owned. The Kantianreasonsare familiar:people have purposes (and, neo-Kantiansmight add,feelingsnd desires), nd thesemustbe treated s valuable nthemselves.Persons can and must takeresponsibilityor some of the shape theirlivestake; respectdemands thattheybe allowedto.Ownershipmakesthe subjective ives of others nto means only.In fact, tmight eem thatpeople notonlyshould not be owned,they cannot be. Power over objects is direct: we can pick themup,move them, change them, destroythem. But power over people is


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34 Ethics October992ordinarilyndirect:we influence heir hoices.Legal poweroverpeopleis usually a matter f threatenedpunishment.The justice system oessometimesphysically estrain r confinepeople, butthesystemwouldnot workunlessmostpeople were dissuaded from ventrying o breakthe law.Nevertheless, his picture s misleading,not inwhat tsays aboutthe way law influencespeople, but in what it suggestsabout owningobjects.Property s not a relationbetween a person and an object, tis a relation mong people about thatobject. Something s legallymineonlyifI can call in the police to keep others fromtaking t. Titles todiamonds, like titles to slaves, are effective ecause threatof legalpunishment nfluences he choices people make.'0In slavery, fcourse,people wereowned. A set of legal arrange-mentsexisted between people about other people. Because even anowned person makes choices, the slave owner had to use differentmeans of controlthan a tractor wnerwould; he had to influence hechoices that the slavesmade. The law,too, punishedactionsbyslaves(and of course tractorsperformno actions); thereis a differencenproperty aws about machines and those about people. But a majorelement in slavery was that other people-nonowners-could notinterferewithwhat a slave owner did and could not legally help theslaves escape. The state did not (much) limitwhat the owner coulddo and did limitwhat nonowners could do about it."1People,then, an be owned. In factmanyrights ver othersfallingfar shortof slaveryhave been called property ights. ome arisefromcontract; employers and employees have rightsover one another.Some arise from tatus: parents can make manydecisions about theirchildren,nd inturn hildrenthrough epresentation)ave enforceablerights o supportand propertreatment.Alimonyhas been called onespouse's propertyright n the other. In all of these cases people canuse some of the power of the stateto persuade others to act.Perhaps these arrangements hould notbe called property ightsat all. But questionsof anguage aside, these otherrights verpersonshelp us define by contrastwhatshould not exist:no one should fullyown-have a complete legal rightto dispose of-any other humanbeing.

Publicgoods. Although theydisagree about details,mostpoliticaltheoristsgreethat omepublicgoodsshouldbe beyondprivate ontrol,for reasons of efficiency,ustice, or community.Earlier I spoke of10. So, too, is the lack of legal recourse for a thief,who could not call in the lawto keep others away, nor sell it and depend on keepingthe proceeds.11. This of course differed romregime to regime. For a comprehensive tudyofslavery n manydifferent ultures, ee Orlando Patterson, laveryndSocialDeath Cam-

bridge, Mass.: Harvard University ress, 1982).


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Andre Blocked xchanges 35public goods that cannotbe privately wned, like quiet; here I referto things that could be but should not be privately wned. I use theterm public goods' roughlyand stipulatively o include those thingsthat are preconditions f communityife, uch as defenseand roads,as wellas thosethat preservecommunity esources, ike wetlandsthatprotectbiologicaldiversity nd forests hat manitainthe ozone layer.Furthermore ome of the necessitiesof individual ife-food, water,and shelter-need to be publicly vailable,but the prohibitionhereis against fullownershipnot of any particular oafof bread but ofthewhole supply.Art and historical bjects partially onstitute he life of the com-munity,nd someof theseneed to be keptfrom otalprivate wnership.A Rembrandt, he originalDeclarationof Independence-these mustbe protected. f theygo intoprivateownership, hen t cannot be fullownership: hepersonwhopaidmoney or he ake ofprivate njoymentshould not have theright o defaceor destroy t.Furthermore,omethingswhichmerely dorn community r private ife also should bekept public,things ike beaches and parks.The general principlehere is thatforthe good of thecommunitythe ndividualownershipof somethingsmustbe limited rprohibited.Obviouslythere s a greatdeal of debate about whatspecifically allsunder thisprinciple,farmore debate than I can address here. Mypurpose is onlyto identifyheprinciple nd relate tto others.So farI have named two major categoriesofblockedexchanges:those thingswhich,bydefinition, annotbe owned (subjectto legal control), ndthose thingswhich should not be, for their own sake (e.g., humanbeings) or forours (e.g., public goods).WHAT CANNOT OR SHOULD NOT BE ALIENATEDSomeThingsCannotBe AlienatedTo alienate,to make other,refers o several differenthings. n onesensesomething s alienable if tcan be disconnectedfrom hepersonit is now connected to and yet go on existing. n this sense we canalienate land-transfer itsownershipto someone else-but not ourmemories.

In anothersense to alienate somethingmeans simply o cease tohave it,whetheror not another acquires it. WhenJefferson rote ofinalienablerights, e meantrightswhich notonlycould not be trans-ferred o anotherpersonbut also could notbe lost.One partymightbe able to alienate an objectwhich notherpartycould not. Honors, for nstance,can be refused,but once givenandreceived cannotbe put aside bytherecipient.Once a Nobel laureate,alwaysa Nobel laureate. But the committeewho awarded the honorcould withdraw t,as theydo when theydiscover fraud.


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36 Ethics October 992Few of the things bout whichmarket heorists orry re incapableof alienation. Nothing,for nstance, n Walzer's istbelongs here. Hislist concerns exchanges which have threatenedto happen, and needto continueto) be obstructed.Or, as inthe case of divinegrace,realmsin whichwe fearcounterfeit nd deception.There seems to be nothingof either kind to fear here.

Some ThingsCould Be Alienated utShouldNot BeNatural rightsmay be inalienable, but legal rights re not. They canbe lost, and conceivably heycould be transferred o another. Muchof Walzer's listbelongs in thiscategory: thingsthat not onlyshouldnot be alienable for money but should not be alienable at all. Weshould not be able to sell our freedomsof speech, press,religion, ndassembly, ur right o emigrate, o marry, o procreate-but neithershould we be able to renounce themor give them away. The generalprinciple sthatpersonsshould be insome respects nvinciblyrmoredagainst hestate nd otherpotentiallyppressive gents.'2Thisprincipledraws froman understandingof basic human flourishing-of theindependenceneeded formoralgrowth,heprivacy eededfor ntimacy.It also assumes the equal worthof all persons.

Somethingsimilar s true ofour welfarerights o education andto police protection. t is not ust that we should not be able to sellthem;we should not be able to lose them or transfer hemtoanother.The general principle s that tates hould provide everyonewithwhatis essential for ife and growth.That principle n turnappeals eitherto general beneficence,to the preconditionsof genuine democracy,or to the ust distribution f what communal effortsmake possible.Principles of ustice and democracyalso apportion some dutiesequally.No one can fulfill nother'smilitary uty,for nstance.All of these restrictions n alienability ave to do withour rightsagainstthe state and our duties toward t.Again, I do nottry o refineor defendtheprinciples t stake. nstead I want to identify bjectionsto alienability ua alienability nd separate them fromobjectionstoalienationforgain.WHAT SHOULD NOT BE EXCHANGED FOR GAINWhen there s no objectionto givingsome particular hingaway,wemaystill bjecttoitsbeing given nreturn or omething-particularlywhen what we gain is money.Two general concernsfigurehere. (1)Concerns about the entity old or traded: babies, forexample. (2)Concerns about thosewho are doing the exchanging; objectionsto amarket n organs fithere. Finally, ale strictlyo-called-as opposed

12. The transfer f marriage rightsmay be forbidden on additional grounds.Suppose someonedoes notwanttomarry; hould she be able tohandover herparticularright o a friendwho wants to be bigamous?


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Andre Blocked xchanges 37to barter-raises specificquestions. Does moneymake an exchangeforgain worse?What is so filthy bout filthyucre?SomeMarketsMistreatWhat s SoldBabies can be givenaway.True, not even parentscan simply ransferto someone else their egal rightsconcerning a child. All adoptionsmust be approved by the state. But parents unless they've osttheirown rights)can decide whetherto release a child for adoption and,often,to whom. In these ways, not absolute but not trivial,parentscan give children away. And theycould do so in returnfor gain.Many people hold thatdoing so would be traffickingn humanbeings, form fslavery. ut therights nd responsibilitiesransferredfrombirthparentsto adoptive parentsare verydifferent romwhatis transferred mong slave traders. The state bars itself nd othersfrom nterferingwith most of what slave ownersdo to their slaves;theprimary urposeofthe aws s toprotecthe owners. awsrespectingparentalrightsprimarily eek thewelfareof the children.Slaves aresaid to be owned because there is littlerestriction n what may bedone to them.Children cannot be said to be owned.But at least two legitimateworriesabout market n babies arise.One has to do withconsequences: new incentive tructures ave un-predictable esults.But there s a quitedifferentbjection, ndependentof whether he effects fthemarketwould be good: is itright o treatbabies as a crop?First, heconcern bout results.Whensomething cquires xchangevalue, people have new reasons to acquire and protect t. A marketinbabieswould notchange themotivations fadoptiveparents, incebabieswouldbe whatanthropologistsall terminal ommodities: nceacquired, rightsover children could not again be traded. Adoptiveparents'motiveswould be whattheyare now,desires to love and beloved, to nurture, o pass on one's name, perhaps to be cared for none's old age and rememberedafterdeath. (Note that some of thesedesires treat the childas an end, some treat t as a means.)Biological parents,however,would have new reasons for whattheydo. Some would begin pregnanciessimplyfor whatthey couldgain from rade. One result, he one emphasizedbymarket heorists,is thatthe supplyof babies would be more likelyto matchdemand.Even the "perfect"market,however,has resultsbeyonditself. n thiscase therewouldbe morebabies availablefor doption.Perhapsmoreof these wouldbe "desirable":healthywhite nfants.But perhapsnot;people who turn to this livelihood are likelyto be desperate, quitepossiblysick or users of drugs. In either case the number of "lessdesirable" babies thatgo unadopted would be likely o increase.No one knows forsure; economic analysis s partlymade up ofspeculation.But it's worthnoting ome of the other ituationsnwhich


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38 Ethics October992altered incentiveshave had unexpected results.One is the storyoftobacco n America n the seventeenth entury. orthe ndianstobaccohad ceremonialvalue; fortheEuropeans ithad exchangevalue. Oncetobaccocould earn money or copper or guns) moreof it was grown.Tobacco exhausts land, and new fieldshave to be begun everyfewyears,so the demand for tobacco created a demand for land-andthat ed to conflict nd violence.One reason, then,to hesitateabout givingbabies-or anythingelse-exchange value is thatdoing so alters incentivestructures,change with unforeseeable results.Some consequences could hurtchildren, hose conceivedtobe tradedas well as thosewho resultfrommiscalculationr misfortune. et powerful s thisobjection s, t doesn'tseem to capture our real concerns. There is somethingstubbornlyuntranslatablenourobjectionto treating abiesas commodities. venifwe could be sure that no one would be worse off, nd everyonebetteroff,human beingsmay not be treatedsimply s means.As Kantsaid,humanbeingsshouldnotbe treated as means only."But the phrase needs unpacking,13 ince people virtually lwaysareuseful to one another,and payingattentiononly to thatusefulnesscan be morallyunproblematic.We can ask someone the timeof day,or stand o thathe blocks hesun from ureyes,without oing anythingwrong."Treating someone as a means only" is not ust an ignoringofsomeone's intrinsic alue but a denial of it as well. Affirmingheirintrinsic alue includes acknowledging heirworth;allowingthemtobe, to function, nd to grow; and fostering ll of that.Endangering,hurting, nd destroying eople are obvious cases oftreating hem asiftheyhad no intrinsic alue.'4 Failureto acknowledgetheirworth sa more complicatedsubject.Not-attending-tomplies "you are worthless" n some situationsbut not in others.Richard Wasserstrom ivesa vividexample of theformer: southernnewspaperreported hat all the children ntown"tookpart n a festival,whenonlythe whitechildrenhad participated.A factory hatputswaste in local water and neverasks whetherthewaste s dangerous treats tsneighbors s iftheydid notmatter, venif t turns out thatthe waste is harmless.

Treatingsomeone "as a meansonly," hen, hould be understoodas actionsnconsistent ith aluingpeopleinthemselves: arm;coercion;deception;and thoseactionsthat mply hatsomeone has no intrinsicvalue. Withthatclarification,etus return o thequestionof markets13. My treatments neo-Kantianratherthan an exegesis of Kant himself.14. Strictly peakingthis s trueonly fnothingelse is gainedbytheharm,force,or deception. But it is truethen,and mypurpose is onlyto illuminate heconnectionbetweenthesewrongsand the failureto treatpeople as ends.


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Andre Blocked xchanges 39thatdemean what is sold, using as our example a market n babies.Exchange value is a particularformofinstrumental alue. Like otherforms f instrumental alue itcoexistseasily with ntrinsic alue; rec-ognizingexchange value does noteliminate n appreciationofsome-thing's ntrinsic alue. The dealer in orientalrugs or in renaissancepaintingsmay fully ppreciatethebeautyofhisstock.But thedecisionto sell something s a decision about its whole future,made purelyonthe grounds of gain to the seller. If the "stock" s babies, the statemight hedge the transactionwithsafeguards,and the birthparentsmightchoose thebuyercarefully. ut ifyou conceive a child you donot mean to keep,you may be forced to let it go to an unsatisfactoryhome-or keep it where it is unwanted. You have done somethingwithprofound mplications or notherperson'sfuture,nd yourmostimportantmotivationhad nothing to do withthat person'swelfare.You have treateda human being as a means only.Now inmost ctualcases ofcontractedmotherhood hebiologicalmotherhas been confident hatthere is a family ager and able tocare for the child; althoughthese womenwould not have conceivedunlessmoneywereoffered, eitherwouldtheyhave done so if homewere notavailable.15 t is ust because theirmotivations re mixed thatwe are unclear how to respond. If they believed theywere not en-dangering hebaby, hen hey ere nottreatingt s if thad no intrinsicvalue. Yet a publicly anctionedmarket nbabies,ofthe kindforwhichPosnerargues,wouldallowconceptionswhereneither hemothernorfatherntended to raise thebaby. Whetherornot that verhappened,providing helegal space for twould be tantamount o approval of it.In any case mypurpose here is not to resolve thedispute aboutcontractedmotherhood utto isolate nd explicate ne kindofobjectionto markets.A differentxample of the objection arises forscholars.We studyand write formanydifferent easons; in part we want asecure ob and the respectofothers,but we also do itforthe sake ofthe work: we want something mportant o be betterunderstood.'6Inevitably, hough,workearns rewards, nd the reward can becometoo mportant. he moreweshapeour work o earnmoney rattention,the more uncomfortablewe (should) become; when the pursuitofmoneyor glorydominates, henourworkhas been demeaned. (I givemore attentionater, nthe fourth ection, otheways nwhich ctionschange theirmeaningwhen done formoney.)

15. I owe the term contractedmotherhood' to Sara Ann Ketchum. As she pointsout,"surrogate"mothers re ust motherswho have agreed to transferheirrights vertheir hildren oothers, sually hebiologicalfather"SellingBabies and SellingBodies,"Hypatia4, no. 3 [Fall 1989]: 116-27).16. We also want to be itsauthor; this s a desire forpersonalworthiness. omemightcall that an admixtureof egoism; I would not,but that s a subject foranotherday.


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40 Ethics October992SomeMarkets re Bad for Seller nd BuyerThe suggestion f a market nhuman organsexcites imilar pposition.Yeta partof a human being is not a human being; treatinghair,forinstance, s a commodity s not treating human being "as a meansonly."But fearsabout altering ncentive tructures,mentioned abovebecause of consequences for the object of exchange, also fithere; ifmoneycan be made from selling organs,a lot more of them will beoffered. hat would seem to be good forthosewho need transplants,but not unequivocally;people offering heirorgans for profitwouldhave a reasonto conceal factsmaking heir rgansunsuitable.Beyondthat, we all know that those most likely to submit to painful andinvasive urgery, nd to accept the risks nvolved,willbe the poor. Incontractedmotherhood n the United Statespoor womenoffer heirwombsand theirbabies, richwomen pay for them. In otherwords,we wonderabout endangeringbuyersand exploiting ellers.Besides the questionof unfairtreatment f one party, bjectionstoexchangesometimes oncern he natureoftherelationshipnvolved.In TheGift elationshipichardM. Titmuss rguedthat gift elationshipis superiorto a commercialone, since gifts ssentiallynvolveconcernforotherpeople,whilethe market emandsonlyrational elf-interest.17He held thatputting omethingon the marketdestroys he "deeperfreedom" to give what is priceless.'8Defending thisposition,PeterSinger talksabout changes in social understanding:"The idea thatothersare depending on one's generositynd concern,that one mayoneself . . need the assistanceof a stranger, . . [that]we mustrelyon the good will of othersratherthan the profitmotive-all thesevague ideas and feelingsare incompatiblewiththe existence of amarket n blood."'9Some oftheseconcerns are easier to specify nd to remedythanothers. Diseased and defectiveorgans can often be identified nddiscarded.20 xploitation nd injustice re fartrickier o deal with;thephilosophicalliterature n these issues is large. The same is true ofclaimsabout lostfreedom,2' nd of fears about changes in social re-

17. Richard M. Titmuss,TheGift elation New York: Pantheon, 1971).18. Peter Singer, Altruism nd Commerce: A Defense of Titmuss againstArrow,"Philosophynd PublicAffairs (1973): 312-20, and "Freedom and Utilitiesn theDistri-bution of Health Care," in Market nd Morals,ed. Gerald Dworkin,Gordon Bermant,and Peter G. Brown (Washington,D.C.: Hemisphere, 1977), pp. 163-64; citedin L.Lomasky, GiftRelations, exual Relations nd Freedom,"Philosphical uarterly3 (July1983): 250-58.19. Singer, "Altruism nd Commerce."20. Public discourse s overlyoptimistic bout this. For instance,HIV often s notdetectable ntilmonths fter thas been contracted. urthermore his olution s possibleonly when we're talking bout organs. If someone conceivesa babyin order to sell it,then discovering ts medical problems onlyreveals the problem.It solvesnothing.

21. I examine this ssue n detail nmy FullOwnershipand Freedom" n. 8 above).


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Andre Blocked xchanges 41lationships nd in culturalclimate.In thisarticle onlylocate thoseconcerns;I do not refineor defendthem.MoneyAddsParticular roblemsThe objections I have identified o farapply to barteras well as tosale. But sale-exchange formoney-creates severalparticularprob-lems.Money is a peculiar thing.By definition t is highly bstract ndmakes a fullyordered set withno highestnumber; its distributiontends to be highlyuneven and based on limitedcharacteristics.achof thesedimensions has ethical mplications.First,prices are fully rdered: everyprice is eitherequal to, lessthan, or more thaneveryotherprice.Everything riced is commen-surable: thisdiamond ring s worthfourthousandrollerskates;thatairplane cost twice whatthishouse did. Should rights ver babies beput on themarket, childwould knowthatshe cost,say, about whata second car forthefamilywouldhave cost. She might lso knowthatshe costmore, or less, thanother children.One moraldanger,then,is an erosionof our sense of theuniqueness ofwhatonce was "price-less."22

Second,moneyaccumulates. t is a form fpower, s are physicalstrength, alent, egal status,and social standing.Like these,moneybegetsmorepower: markets an be cornered, esources ought, oliticalinfluencecultivated. But unlikemostother formsof power,moneycan be accumulated ndlessly: here sno highest umber.Futhermore,preserving t is relatively imple; moneydoes not rot, t takesup noroom,and itcan often be guarded more efficientlyhanobjects.Third, money accumulatesunevenly. Not onlydo some peoplehavevastlymorethanothers, hey ollecttthrough arious ombinationsofgood fortune,hardwork, nd nativeability.Moral desert s at bestone of the factors t work.Perhaps luck,effort,nd ability re goodreasons for allowing someone to travelmore widelyand live morecomfortably han others can. But it is not clear that they ustifyagreaterchance at surviving isease or at establishing family.

22. It is not my purpose in this articleto evaluate these possibilities. or furtherdiscussion, ee Nancy C. Hartsock,Money, ex, ndPower New York:Longman, 1983),p. 98 and passim;ErickMack, "Dominos and theFearofCommodification,"nNOMOSXXXI: MarketsndJustice,d. John W. Chapman and J. Roland Pennock (New York:New YorkUniversity ress,1989),pp. 198-225, esp. p. 217;Jan Narveson, TheJusticeof theMarket: Commentson Gray and Radin,"inChapman and Pennock, ds., p. 271;and MargaretJaneRadin,"Justicend theMarketDomain," inChapman and Pennock,eds., pp. 165-97, esp. p. 171. Manyhave argued recently hatwe humans are fartooarrogantabout the differences etweenourselves and the nonhuman world. But thethrust f thosearguments salmost lways ogivegreater tatus othe nonhumanratherthan less to the human.


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42 Ethics October 992Fourth,money s purely nstrumental. ssigning monetary alueto something mphasizes its nstrumentalitynd makes it more likelythat thatthingbe treated simply s a means.Fifth,money providesdiminishingmarginalutility. ne hundreddollars means less to a Rockefeller han to a postal clerk.And somethings,perhaps, should cost us roughly qually.The abuse of indulgences illustrates ome of this. Suppose weaccept fora moment ome theological resuppositions: hat fter eathpeople will sufferfora while in purgatoryuntil, purified, heyareallowed into heaven, and thatvoluntary enance on earth can reducetime npurgatory.uppose we accept, oo,that he church an designate

that ome actions are equivalent to others: that aying ertainprayers,for nstance,reduces purgatory imeas much as one hundred days ofpenancewould. From here t'san easy steptorewarding ertainhelpfulactionswith ndulgences,actions such as cleaningthesacristy r em-broidering vestments.And after that comes the fall: what is morehelpful han money?Whynot reward ontributions o the churchwithindulgences? On this nterpretationhe churchdid something t shouldnothave done, rather han claimed to do something tcould not havedone. The second questionraisesquite differentssues.)The churchshould not have sold indulgencesbecause money s too farremovedfrom hesphere of personal deserttowhich ndulgencesare properlyattached.A cost in dollars is not the same as cost n sincereprayerorbodily service.Anotherexample is the legal obligation to serve one's country.No kind of contributionwould cost everyone exactly equally; timemeans more to some people thanothers,physicaleffort omes moreor less easily. Still,time and effort urden people more equally thanmonetary xpense does. So we forbidbuyingone's wayout of servicein order to make more equal demands on each person.Ifwe turn o what houldnoteven be owned,much ess transferredto others, money darkens that picture, too. Is it worse to sell slavesthan to give them away? Yes, other thingsbeing equal, and for someof the reasons ust given. If it is degradingto be owned-to be fullysubjectto the will ofanother-being pricedadds insult o injury:theslave sone commodity mong others,worthperhaps ess than a houseand more than a horse. Furthermore, he slave being sold is treatedas "a means only." n an auctionor purelycommercial ale, the sellermustyieldto the highestbidder or the first ffer. he decision abouttheslave's new owner,one which deeply affects he slave, s not madefor the sake of the slave. Seller and buyerneed onlybe moved bytheirown self-interest.WHEN ACTIONS ARE "FOR SALE"When contracts, romises, nd agreementsto act involvemoney,wesometimesuse the language of sales: "He sold his talents o Exxon."


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Andre Blocked xchanges 43"MGM has boughther next twoperformances." his isespecially ruewhen we disapprove of what happened: "She sold out." "The senatorhas been bought."From Walzer's ist, he following oncern actionsdone formoney:"desperate exchanges" such as dangerousordegradingwork, selling"political power and influence,public office, nd criminal ustice,andagreementsto break the law.AreAgreementso Act Form fSale?I would argue that these transactions re not really sales: that the"seller"does nothand over, unchanged, a bundle of legal rights ndliabilitieswhichhad made himan "owner." Others,however,holdthatthese greementsre a kindofsale: that, or xample,when a ballplayersigns witha team, he sells it exactlywhatit can then sell to anotherteam: rights ver the use of his time.In oppositionI would note, first, hat tis oftena struggle o sayclearlywhat has been sold. Time? Effort? bility? reedom? Honor?)Second,whatever t s thathas been sold, twas notoriginallyowned"in the same sense that and and licenses are. Third, there s not usta trade in legal statuses.Typicallythe employeemust now seek theemployer'sgoals, theemployermustprovideforand protect he em-ployee.None of theseobligations xisted beforetheinitial greementwas struck.Compare this with the sale of a house, or of a player'scontract: the new owner now has exactlythose rights nd liabilitieswhich the previousowner had. In contrast,most of the legal rights,liabilities,nd so on thatresultfrom ontracts f service risede novo.They do not preexistthe arrangement nd thus are not transferredfromone partyto the other.Finally,the courtstreat contractsforpersonal servicequite dif-ferentlyhan theydo sales. When a sale is held tobe valid,the sellermustrelinquishwhat she sold. But when the courts nforce contractofservice,he "seller"the personwho receivedmoney) srarely equiredtodo whathe promised o do (althoughhewillhavetomakerecompenseof some kind).I think he attractivenessfthe "sale" paradigmreflects he extentto whichexchange theory, nd neoclassicaleconomics,operate as un-challenged assumptions. Note, forinstance,the persistent endencyto thinkof gifts s disguisedsales.However, need notsettle hedisagreementhere. Whether gree-ments o actreally re sales oronlymetaphoricallyo,certainnterestingquestionsarisewithin hem,and onlywithin hem.The Moral ConsiderationsBefore presentingthe questions specificto the "sale of actions," etme note thatmanyof theproblems have identifiedn ordinary alesalso crop up here. Weblockemployment ontracts ordangerousand


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44 Ethics October 992degrading work out of fear of injustice and exploitation,the samereasons for whichwe block the sale of organs.Most contracts or ervicewhich reblocked,however, re blockedfor a different eason. They concern actions,and actions inherentlyinvolve purposes. When something s done for money, t is done fora different urpose than it otherwise s, and the change in purposecan change thenature ofthe action.To use an example of Eric Mack's,sexual love is not simply "fee-free ersion" of prostitution.23 anyinteractions hange so radicallywhen theyare done formoney thattheyneed new names. Take the court system: judge whosedecisionshave been bought is no longer dispensing justice," because he or sheis no longer decidingon the basis of evidence and law.The new institution-criminal njustice, etus call it-is inferiorto the one itreplaces. Of course the udge has brokenpromises andbroken the law,which adds to herwrongdoing;but it is not ust thefact of her promise that matters, ut its substanceas well. Criminaljustice, ideally,treatspeople equally; in it (again, ideally) people de-termine heir wnfutures ythe choicestheymake.24Bribery estroysall this.The special characteristics fmoney highlight ome ofwhat hasbeen lost. For one thing,since moneyaccumulates so unevenly,nokind ofequalitybeforethe aw survives. oranother, ne's fatebeforethe law depends not on one's conformityo it,but on the luck andeffort hichbroughtone money.Those qualitieswhich ead towealth,even the mostadmirable of thosequalities,are onlya subsetofwhatmakes people worthy.The same is true of democraticoffice.When thepersonin officeis chosen bythe voters, he office s democratic; when the person inoffice s chosen by people with themostmoney,theoffice s not.Sex isa borderline ase ofthiskindofessential hange. Ordinarilysexual interactionxpressesmanythings, mongthemdesire, ffection,love, or commitment. he loversmaybe set on exploitation,mutualreverence,pleasure,determineddedication,or some combinationofthese and otherpurposes. All of this nformswhattheydo and whattheyexperience.In commercial ex thepartners eed to careonly bout themselves.Each wants one thing-money, satisfaction, omination-and eachagrees to givewhat the other wants.Neither needs to care about theother.Objections to prostitutionssert that sexual interaction houldnotbe a meeting fmutuallyelf-interestedarties, reatingne anotheronly s a means to their wn ends.Objectorsholdthatmutualconcernis central o sexas it should be and that nyarrangementwhichmakesmutualconcernunnecessary nd unlikely hould not exist.

23. Mack, pp. 198-21 1.24. HerbertMorris, Persons and Punishment,"The Monist 2 (1968): 475-501.


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Andre Blocked xchanges 45Divine favor s somethingelse whichwould notbe what t is if tcould be bought. I suppose a deity s imaginable who looks withfavorupon thewealthy25 r upon thosewhosupport his workwith hemost

money.But thatcould not be theGod of theJudaeo-Christian-Islamictradition,oving all equally,responding to purity f soul.Respect is another interesting ase. On the face of itwe cannotrespect someone because of the amount of moneyshe has. Yet in away we do; we can certainly e impressed. And we mightwell respectthe effort nd abilitywhich broughther wealth.Still,thatwould notbe respectingher for hermoney,but forwhatthemoney represents.And it's hard to imagine one person payinganother forrespect; onewould getinsteadrespectful ctions,whatMacIntyre alls simulacra',not the same thingat all.And so for prizes and honors: theyrepresentaccomplishmentand merit. f theycould be bought,theywould represent omethingelse: the luck,particulareffort,nd specific bilitieswhichgive onewealth. When a prize is bought, t is notreallya prize at all.Prohibitions n doing somethingforpay, then,usually concernactionswhose verynaturechangeswhenmoney motivates hem. Ourlanguage suggests hat t s thepresence ofmoneywhichcontaminatesthe interaction.Almostalways phrases like "X is for sale," when theyare not literally rue,are pejorative.Myanalysis uggests hat t s notso much the presence of money as the absence of other thingstowhich we object; but that is not quite the whole picture.Take, forinstance, recent rticlepraisingJimmy arterforhis work nconflictresolution. n saying"For Carterthe presidencyhas a 'Not forSale'sign,"the writer mplicitly riticizesRonald Reagan, who accepted amilliondollarsfor a brief ppearance inJapan. The implicit riticismwas not ust of the formerpresident'sdoing nothing,but ofhisusinghis office orself-interest.We use terms ikebuyingand selling,then,partly o lament theextinction f something good but also to rebuke the substitution fself-interestor the other,preferable,motives.If what Reagan hadreceivedwere a pricelessnetsuke suspecttherewould have been lessoutcry. Money seems to us the capital occasion for selfishness,because-I think-of itspure instrumentatility.esire formoneyhasno admixtureofappreciationofsomething's ntrinsic alue, as woulddesire for an exquisitecarving.CONCLUSIONQuestions about the proper scope of the marketwillalwaysbe withus. Money is so powerful that the bordersbetween its domain andotherswill always need defense. At the beginningof this article I

25. Calvin's God, I believe,rewarded theworthywithprosperity. he wealth wasa sign,not a cause, of divine favor.


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46 Ethics October992describeda number of perspectiveswhich have been offered o helpus draw thebordersclearly.MargaretJaneRadinprotects onfungibleproperty romthe full forceofthe market;MichaelWalzer limits hemarket n order to lesson oppression; ElizabethAnderson analyzesmarket relations impersonality, elf-interest,nd so on) and showsthat ome good things annot urvivewithin hem.Mark Nelson derivesa number of principlesfrom set ofexamples; theexamples are notlogicallygenerated,and theprinciples re only oosely related to oneanother.The perspective offerhere is more complex. There are manyreasonswhy ome sales cannotor should not take place. The questionswe need to ask include the following:

Thepossibilityfownership.Is itpossibleforthisentity o be con-trolled by legal arrangements? Divine grace and friendship annotbe.) Themoralityf ownership,hat s,exclusiveontrol.Is thisthe kindof thingwhichmay legitimately e controlled? No personshould becompletely ubject to another.) Is thisthe kind of thingwhichmaylegitimately e keptfromothers? Public goods should be available toall.)Thepossibilityf alienation, hat s, separation. Can thisthing beseparated fromthe person to whom it now attaches? Moral rightscannot be lost.)Themoralityf lienation.Should itbe possiblefor nyonetolosethis? Basic civilrights hould be inalienable.)The impact fthemarketn what s exchanged.Does exchangingthis thingforgain endanger or demean it? (Some babies conceivedforsale would suffer; ome would be treated "as means only.")The mpact f hemarket nbuyernd seller.Does exchangingthisthing forgain exploit,endanger,or demean anyone? (Commerciallyobtainedorgans maybe contaminated; ellers repoorand desperate.)To what extent does the marketrelationshipof mutual self-interescrowd out otherrelationships f mutual concerns?Theway money hapes n interaction.Everything priced is com-mensurable.Can we retain n understandingfa child's mmeasurableworthif the child was purchased?) Money is unevenly distributed;

accumulating t depends upon luck, work,and ability. Should civicduties be distributed pon differentriteria, erhaps equally?)Thefactthat cceptingmoney ssentiallyhanges ome ctions.Doesallowing people to do this for the sake of moneydestroy omethingof value (democratic ffice, rizes, riminalustice)orreplacea desirableinstitutionwitha less desirable or bad one (prostitution)?I doubt thatany single principleor perspective an synthesize llthese questions. Yet theyare more than simplya list.They formalogicallyrelated set which can help us think n an orderlyway aboutthe questions whichsteadily onfront s.


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Andre Blocked xchanges 47POSTSCRIPTMany audiences have pointedout to me that hesequestions re double-sided. A relationshipcan be improved,forinstance,by being com-mercialized: money can counter social prejudice and bring t about,forexample, that racists ell to and behave civilly owardminorities.The positive side of commodification ould be approached throughthe same taxonomywithwhich have here sketched he negative ide.

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