Rights Theory, Book/Article Reviews

The Bad Libertarian Argument for Commodification

For any particular good X, is morally permissible for you to sell X?

Note that this question doesn’t ask whether selling X ought to be legal. Rather, it asks whether selling X would be morally wrong.

Some libertarians think these questions are easy. If X belongs to you, of course you can sell it. For example, “it’s my body” so of course I sell sex or organs. Right?

Not so fast. In Markets without Limits, Peter Jaworski and I explain why this kind of argument doesn’t do the work some libertarians think it does. An excerpt:

To own something is to have a property right in it. But, as most philosophers of property rights have noted, a property right is not just one right, but a bundle of separate rights. As David Schmidtz explains:

Today, the term ‘property rights’ generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even destroy. (John Lewis generally is regarded as the first person to use the ‘bundle of sticks’ metaphor, in 1888.) The fact remains, though, that at the heart of any property right is a right to say no: a right to exclude non-owners. In other words, a right to exclude is not just one stick in a bundle. Rather, property is a tree. Other sticks are branches; the right to exclude is the trunk.

A property right is really a collection of separate rights, which generally include the right to sell, to buy, to lease or rent, to destroy, to modify, and to use…

We want to be clear that we are not arguing that it follows, as a matter of logic (from the meaning of the concept of “property right”) that if something is permissibly someone’s property, that she may then sell it. Certain libertarian thinkers might be tempted to make this argument, but we reject it, for three reasons.

 First, if we did try to ground our thesis on property rights, it would not really settle the debate. It would just shift the debate to a related debate. If we did insist that to have the right to own something meant a right to sell it, then at best, the question for debate would just become what people have the right to own. Nothing would change. For instance, it wouldn’t settle the debate about whether you can sell sex or kidneys. Instead, the debate would shift to a debate about whether you really own your body.

Second, we think this argument rests on a conceptual mistake in its analysis of property rights. After all, we have the rightful power to determine what happens to different things in different ways—and the bundle of rights that attaches to this rightful power varies. The strength of our rights also varies. I can have property in a cat and a car, but my power over the cat—which may be better understood as “guardianship” rather than ownership—doesn’t allow me to do as much with it as my ownership of the car does. The way I have a property in a cat is different from how I own a car, which is different from how I own a guitar, which is different from how I own a plot of land, etc. So, for instance, my ownership right to my guitar includes the right to destroy it at will for any capricious reason, but my right to my cat does not include such a right. My right to my house includes the right to sell it, but, because of a restricted covenant, it does not include the right to paint it neon orange with neon pink polka-dots.

Now consider the right to sell. Certain property rights come with restricted covenants—you can buy some things, but lack the corresponding right to sell them, or have only limited rights to sell. So, for instance, I (Jason) have a property right to a pool club membership, but I may sell my membership only to someone who buys my house, and only at a price set by the pool club. My ownership over the membership is not the same as my ownership over my guitars, which I have the right to sell at will on any mutually agreeable terms. Another example: you probably own a license to use many forms of software, but you agreed, as part of the purchase, that this ownership did not include the right to resell the software when you are finished with it.

Third, and most importantly, we think this argument makes a further conceptual mistake in that it conflates two separate questions:

  1. What do you have the right to do with your property?
  2. What is right for you to do with your property?

A and B are distinct. In general, if you have the right to do something, this does not presuppose that it is morally right for you to do it. Rights are not about what’s morally permissible for the right-holder to do. Instead, they are more about what’s morally permissible for other people to do to the rights-holder. So, for instance, suppose my wife lovingly gives me a new guitar for my birthday. The guitar is mine, and I have the right to destroy it—no one should stop me from doing so. But, if I were to destroy it, I’d act badly, as I would hurt my wife’s feelings. Or, as another example, I have the right to join a Neo-Nazi political rally and express hatred of Jews, but it would be immoral to do so. No one should stop me from being a Nazi, but I also shouldn’t be a Nazi.

Thus, an anti-commodification theorist could simply agree that people have the right to sell certain things (line-standing services, sex, organs, etc.) but then claim that it remains immoral and wrong to buy and sell those things, even though it is within people’s rights. The anti-commodification theorists would then conclude that certain markets should be legal, even if they are deeply immoral. Our goal here is to challenge the moral condemnation of these markets. We want to argue that markets in contested commodities like organs and sex are not merely within people’s rights, but are morally permissible.



There is no entailment from “You own X” to “It’s morally permissible for you to sell X.” At best,  sometimes, “You own X” implies “You have the right to sell X,” and even that is only generally true. So, the commodification debate is not easily settled by invoking libertarian self-ownership or anything like that.



Published on:
Author: Jason Brennan
  • disqus_QZX8ENhLyb

    In this case, I think Jason suffers from pathological “non-sequitur-itis” and incomplete, ill-conceived enthymematic attempts at making arguments. Quit trying to be “tricky” and evasive. Say what you mean and try to make things clear at the outset.

  • Loren Lomasky

    I have, from time to time, given students an A but I do not believe that it would be morally right for me to sell them an A. (Maybe a B+ . . .)

    Loren Lomasky

    • urstoff

      Similarly, I sometimes give my friend a hard time, but it would not be morally permissible for me to sell him a hard time.

      • Tedd

        Actually, I don’t see any reason you couldn’t. But you might find you have to charge a negative price.

    • JoshInca

      The grades that you give a student are part of the larger process of educating her, which was freely contracted for on her part. So giving an undeserved grade, in either direction, is a type of fraud in the paradigm of that contract.

    • Jason Brennan

      We call this kind of case an an example of an “incidental” limit. If, e.g., I promise to give you cake for free, then I am obligated to give it to you for free. It doesn’t mean cake is not the kind of thing that cannot be for sale, but just that you can’t sell cake in this instance.

      Now, we wondered if anti-commodification critics could come up with some good X that must always be given away for free, but we couldn’t find any good arguments to that effect.

      In the grading case, you’ve got a set of prior agreements in the background that incidentally forbid you from selling grades to the students. In the absence of those background agreements, I don’t think it would be impermissible to sell grades directly. Imprudent and non-strategic, yes, as a university that did that would be a laughing stock, but not morally wrong. If, say, University of Phoenix announced a new plan to distribute grades according to payment, we would all discount UP degrees even more than we already do. But I don’t think there’s a moral prohibition against doing that.

  • Guy

    I find that it is hard to accept that one can have the right to do something morally impermissible. Perhaps the formulation should be softer: having a right means that the reaction must respect your liberty to exercise this right, even though it is not morally optimal, consequentially speaking. Maybe refraining from exercising the right, in certain cases, could be viewed as a supererogation. For instance, I have the right to not donate money for charity as I have a right for my property, and I should not be held accountable for failing to do so; but it would be supererogatory for me to donate nonetheless.

  • Ezhutachan

    Your views are otiose. In a moment I will show they are also immoral and foolish.

    We already know that our ability to dispose of our body or property or votes, are constrained physically- but not morally. You invent a moral reason to accept a manipulable hegemony over our body. Why not our mind? This cleverness of yours is foolishness simply.

    Because our bodies- and other ‘property’- is contested by gangsters and sociopaths (not all of whom we can conveniently kick to death) we band together to repel coercion.

    That is the appeal of Libertarianism.

    Having a ‘Bleeding Heart’- in other words, being optimistic about initiating generous encounters- is a feature of transgressive life styles. By definition, coercion w.r.t parts of our body is something we collectively resist. But why are you speaking of morality to us Brennan?

    Our morality valorizes adventurism. Yours is an academic availability cascade.

    This is what you write=


    There is no entailment from “You own X” to “It’s morally permissible for you to sell X.” At best, sometimes, “You own X” implies “You have the right to sell X,” and even that is only generally true. So, the commodification debate is not easily settled by invoking libertarian self-ownership or anything like that.

    You must be aware that there is no entailment from ‘It is morally permissible for you to do x’ to ‘It was morally permissible for you to do x’. It is morally permissible to fart in my bosses face- because nature’s demand exceed anything conventional.. It was not morally permissible to fart in my bosses face because I shoved his face up my crack.

    The commodification debate is easily settled by applying the Muth Rational answer. There is a correct economic theory, and people like you add noise to signal to gain an obligatory passage point status so as to corner a rent.
    You fail.
    Broadcast your ignominy by authoring more worthless books.

  • An Prop

    Ownership is exclusive control. If you can’t sell it, you don’t own it. If you can sell it, you do own it.

    • murali284

      It is logically possible that there exists some good which I have the right to sell, but not the right to use or exclude others from using. Do I own it?

      • An Prop

        Exclusive control includes the right to exclude. This can be done with the things you want to socialize via private, voluntary contracts of course. Voluntary terms of use can be applied to anything as can involuntary. Ideas for instance. I have exclusive control and can certainly exclude anyone from my thoughts simply by keeping them private. I can also sell them via voluntary, restricted contract and enforce them privately for instance by performance bonds in the contracts. The excuse you are trying to make to violate private property is vacuous.

      • An Prop

        Ownership is exclusive control, so your logic is illogical.

  • Matthew Tanous

    1) “Shift it to a related debate” that isn’t really a debate if anyone isn’t functionally incapable of critical thought? Most people call that making a point.

    2) So what? Even accepting all this – which is clearly not the case, particularly with the cat – the fact that there can be limits on property rights through agreed upon contract doesn’t mean anything as regards self-ownership, which is not obtained via contract.

    3) Whether it is morally right is irrelevant to the debate. Do you just not understand the commodification debate is related to using state force to stop people from selling these things, or just want to be intentionally disingenuous?

    Tons of people, myself included, think a lot of things that people do on a regular basis are morally wrong. Libertarians happen to recognize that isn’t a justification to stop them from doing it. It’s as if you missed the whole thrust of the idea.

  • Tedd

    Setting aside the cat example for the moment, the examples provided here don’t at all prove the thesis. All they do is show that property can be more specific than it might superficially appear to be. Covenants and other such restrictions merely serve to define more specifically what is actually being acquired, and therefore what is owned. They don’t in any way alter the right to sell, lease, modify, or destroy the thing that is actually owned.

    The situation regarding ownership of living things is different, but still doesn’t support the thesis. In the past, I suspect animals were regarded more as property in the usual sense. But animal ownership today is more about protection of the animal and holding a human responsible for damage the animal causes than it is about property.

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