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100 Harv. L. Rev. 1849 (1986-1987)
Issue 8

handle is hein.journals/hlr100 and id is 1867 raw text is: VOLUME 100 JUNE 1987 NUMBER 8 HARVARD LAW REVIEW ARTICLE MARKET-INALIENABILITY Margaret Jane Radin* Things that may be given away but not sold are market-inalienable. In this Article, Professor Radin explores the significance of market-inalienability and its justifications. The author considers and rejects two archetypes that fail to recognize market-inalienability as a separate category of social inter- action. One, universal commodification, holds that everything should in principle be subject to market transfer; the other, universal noncommodifi- cation, holds that the market should be abolished. Professor Radin also explores and ultimately rejects attempts based on economic analysis and liberal philosophical doctrines to justify particular distinctions between things that are and things that are not appropriately traded in markets. She then offers an alternative justification for market-inalienability that relates it to an ideal of human flourishing. This theory takes into account both the rhetoric in which we conceive of ourselves and our situation in nonideal circumstances. Professor Radin concludes by demonstrating how the theory might be applied to three contested market-inalienabilities: prostitution, baby-selling, and surrogate motherhood. S INCE the declaration of unalienable rights of persons at the founding of our republic,' 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;2 * Professor of Law, University of Southern California Law Center. I gratefully acknowledge the support of the University of Southern California Faculty Research and Innovation Fund in the preparation of this Article. Earlier versions were presented to workshops at the University of Wisconsin School of Law, Northwestern School of Law, and the University of Southern California Law Center, as well as to the Los Angeles Feminist Legal Scholars and to my Spring 1987 seminar in property theory. The Article benefited greatly from the responses of the participants. It also benefited greatly from the willingness of friends and colleagues - too numerous to name - to think and argue with me, sharing generously their time and talents. I am grateful to all of them and hope they will take up where I leave off. For making this work possible, I record my thanks to my family: Layne Leslie Britton, Wayland Jeremiah Radin, and Amadea Kendra Britton. I The Declaration of Independence para. 2 (U.S. 1776). 2 See, e.g., McConnell, The Nature and Basis of Inalienable Rights, 3 LAw & PHIL. 25, 27 (1984) (That which is inalienable . . . is not transferable to the ownership of another.). 1849

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