Alienability: rejoinder to Kuflik

Abstract

Purpose -The purpose of writing this paper is to defend the doctrine of commodification, or alienability: that there are no exceptions to the principle that all things that are owned may be legally sold. Design/methodology/approach -The approach of this paper is to consider arguments to the contrary, mainly those, in this case, furnished by Kuflik, and then to refute these arguments. Findings -The conclusion of this paper is that socialism, the view that purchases and sales, markets, free enterprise, is unjustified, is mistaken. Non-alienability is part and parcel of the critique of markets. To the extent it is countered, markets are strengthened. Research limitations/implications -Future research would probe more deeply into anti-market arguments. Practical implications -The practical implications is that the law should legalize markets in body parts, and, more radically, should recognize voluntary slave contracts. Originality/value -This is virtually an entirely original paper, in that there are only a very few publications that defend complete alienability, such as does this one. Keywords Legal principles, Selling, Right to buy, Trade, Philosophical concepts Paper type Conceptual paper 1. Introduction Buying, selling, renting, borrowing, lending -in a word -transferring property from one person to another is part and parcel of an economically integrated geographical area. If a widespread and inclusive European common market is to succeed to the extent hoped for by many of its advocates, a necessary precondition is full economic integration. Since this latter requires the legalization of full commercial interaction between and among the citizens of all member states, it cannot be denied that the freedom to ''barter and truck'' must be accorded them.There is a debate with regard to inalienability taking place in the academic literature. [See Barnett (1986), Calabresi and Melamed (1972), Epstein (1985, Feinberg (1978), Kant (1930), Kinsella (1998Kinsella ( -1999, Kuflik ( , 1986, Locke (1960), McConnell (1984, Meyers (1981), Mill (1975[1859), Radin (1987), Rose-Ackerman (1985), and Rousseau (1968)]. It is a bit one-sided, with most commentators maintaining that total and complete alienability, the right to buy and sell all property and personal attributes and characteristics, is impossible, or unwarranted, or unjust[1]. This is not per se a European issue; its importance cannot be confined to that continent; and, further, the debate over alienability is more of theoretical than practical interest. Nevertheless, it is also true that complete and total free trade, in all conceivable goods and services, whether foreign or domestic, is certainly of great importance to all members of the community. It is in this sense that the present philosophically oriented paper on the economics of the law will be of particular interest to the European law and economics community, at present; ultimately, however, this is an issue for all of mankind.

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Impartiality and democracy: an objection to political exchange

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