In lieu of an abstract, here is a brief excerpt of the content:

Market-Inalienability MARGARET JANE RADIN SINCE THE DECLARATION of "unalienable rights" of persons at the founding of our republic ,1 inalienability has had a central place in our legal and moral culture. Yet there is no one sharp meaning for the term "inalienable." Sometimes inalienable means nontransferable ; sometimes only nonsalable. Sometimes inalienable means nonrelinquishable by a rightholder; sometimes it refers to rights that cannot be lost at all. In this essay I explore nonsalability, a species of inalienability I call market-inalienability. Something that is market-inalienable is not to be sold, which in our economic system means it is not to be traded in the market. ... The most familiar context of inalienability is the traditional liberal triad: the rights to life, liberty, and property. To this triad, liberalism juxtaposes the most familiar context of alienability: traditional property rights. Although the right to hold property is considered inalienable in traditional liberalism, property rights themselves are presumed fully alienable, and inalienable property rights are exceptional and problematic. Economic analysis, growing out of the liberal tradition, tends to view all inalienabilities in the way traditional liberalism views inalienable property rights. When it does this, economic analysis holds fast to one strand of traditional liberalism, but it implicitly rejects-or at least challenges-another: the traditional distinction between inalienable and alienable kinds ofrights. In conceiving ofall rights as property rights that can (at least theoretically) be alienated in markets, economic analysis has (at least in principle) invited markets to fill the social universe. It has invited us to view all inalienabilities as problematic. In seeking to develop a theory of market-inalienability, I argue that inalienabilities should not always be conceived of as anomalies, regardless of whether they attach to things traditionally thought of as property. Indeed, I try to show that the characteristic rhetoric of economic analysis is morally wrong when it is put forward as the sole discourse of human life. My general view deviates not only from the traditional conception of the divide between inalienable and alienable kinds of rights, but also from the traditional conception of alienable property. Instead of using the categories of eco100 Harv. L. Rev. 1849 (1987). Copyright © 1987 by the Harvard Law Review Association. 1126 Copyrighted Material Market-Inalienability I 1127 nomics or those of traditional liberalism, I think that we should evaluate inalienabilities in connection with our best current understanding of the concept of human flourishing .... I. Market-Inalienability and Noncommodification [T] he traditional meanings of inalienability share a common core: the notion of alienation as a separation of something-an entitlement, right, or attribute-from its holder. Inalienability negates the possibility of separation.... Any particular entitlement , right, or attribute may be subject to one or more forms of inalienability.... [N] onsalability is what I refer to as market-inalienability. In precluding sales but not gifts, market-inalienability places some things outside the marketplace but not outside the realm of social intercourse.... Market-inalienability often expresses an aspiration for noncommodification. By making something nonsalable we proclaim that it should not be conceived of or treated as a commodity. When something is noncommodifiable, market trading is a disallowed form ofsocial organization and allocation. We place that thing beyond supply and demand pricing, brokerage and arbitrage, advertising and marketing, stockpiling , speculation, and valuation in terms of the opportunity cost of production. Market-inalienability poses for us more than the binary choice of whether something should be wholly inside or outside the market, completely commodified or completely noncommodified. Some things are completely commodified-deemed suitable for trade in a laissez-faire market. Others are completely noncommodified-removed from the market altogether. But many things can be described as incompletely commodified -neither fully commodified nor fully removed from the market.2 Thus, we may decide that some things should be market-inalienable only to a degree, or only in some aspects. To appreciate the need to develop a satisfactory analysis of market-inalienability, consider the deeply contested issues of commodification that confront us. Infants and children, fetal gestational services, blood, human organs, sexual services, and services of college athletes are some salient things whose commodification is contested.... How are we to determine the extent to which something ought to be noncommodified , so that we can determine to what extent market-inalienability isjustified? Because the question asks about the appropriate relationship of particular things to the market, normative theories about the appropriate social role of the market should be helpful in trying to answer it. We can think of...

Share