Kim Krawiec has a new paper up on ssrn, "A Woman's Worth." It has a modest, Jane Austin-sounding title. Yet, at the core of Kim's always-thoughtful speculations on three cases of commodification of women (sale of sex, compensated egg donations, and commercial surrogacy) is a very important question about the relationship between the market and human empowerment -- or what I like to think of as human dignity. Now, if Amy Adler had written this paper, it might have been more provocatively titled something like, "girls! girls! girls! When the market (dis) empowers women!" Then again, when Kim wrote about it here in the lounge, she had a more provocative title.
Kim's basic point is that restrictions on commodification "disadvantag[e] female providers in these instances, by constraining their agency, earning power, and status." Kim's obviously correct that restrictions on sale leave those who would like to sell with fewer options (and therefore less power) than they would otherwise have. This is particularly true in the cases of restrictions on compensation for such dangerous activities as egg donation.
There's a huge literature on this in history, particularly in the pre-Civil War era. I think of the restrictions on enslaved people being able to make contracts -- though often owners looked aside as slaves took on work on the side. The dis-empowerment of slaves to participate in the market kept them in a state of slavery. And when they entered the market, they gained money, often to purchase their freedom and their family members. Kathy Bergin reminded us earlier this week about the virtues of the market in breaking down opposition to segregation in the 1960s.
A small point here: one thing that is exciting is to see talk at page 15 (from Fisher Ames of all people!) that once slaves are the subject of taxation, the ownwership of them is legitimized. This is connected -- in an obverse way -- to the Nullification controversy of the early 1830s. There South Carolinians opposed federal taxation of the products of slave labor. Having their slave system legitimized by the Constitution, South Carolina did not want the extra tax scrutiny. They didn't want their rice or other products of slave labor taxed.
Then again, once we convert something previously un-purchasable into something that can be purchased, you may make that product more widely available. More providers will enter the market, I assume, and competition will drive down prices. What once provided empowerment may be a form of what was once known as wage slavery. The market can give power; it releases people from constraints. It's what helped bring down the institution of slavery -- as free workers had an incentive to agitate against slavery because they had to compete with products of cheaper slave labor. At that point, the market imposes its own constraints and comes with its own harshness. Ralph Waldo Emerson captured the dual nature of the market in his lecture "The Young American." In commenting on trade (what we'd now call the market), Emerson spoke of its power to break up feudalism and slavery -- but also the tough system that trade put in its place:
The philosopher and lover of man have much harm to say of trade; but the historian will see that trade was the principle of Liberty; that trade planted America and destroyed Feudalism; that it makes peace and keeps peace, and it will abolish slavery. We complain of its oppression of the poor, and of its building up a new aristocracy on the ruins of the aristocracy it destroyed. ... Trade is an instrument in the hands of that friendly Power which works for us in our own despite. We design it thus and thus; it turns out otherwise and far better. This beneficent tendency, omnipotent without violence, exists and works.
Emerson then goes on to say that something else will replace trade. What that is, he declined to speak.
The question for me is whether the move will be from empowering people through market, to having them governed by the market.