Attempts to reconcile economic transactions and intimacy have generally tried to strike some balance between the two, but have not surpassed either hostile worlds or nothing-but reductionisms. In the preceding chapter, we have already seen Richard Posner’s attempt to get rid of a hostile worlds view by replacing it with a nothing — but economic alternative. According to Dan Kahan, this “law and economics” approach:
presents a comprehensive theory of legal rules founded on the rational actor model. Descriptively, it posits individuals who react to legal incentives in a manner rationally calculated to maximize their material well-being. Normatively, it appraises legal rules according to their contribution to social wealth.
And prescriptively, it presents a programmatic collection of maxims and algorithms designed to make the law efficient. (Kahan 1999)
In recent years, a number of legal scholars have reacted against this extraordinarily influential economic paradigm. In some cases, scholars have returned to a hostile worlds argument, insisting that there are some ranges of social behavior that commodification does corrupt after all. Others have moved toward cultural reductionism, by emphasizing social norms, meanings, and values as an alternative to economic rationality. Still others have begun to formulate more substantial institutional and relational accounts as competitors of the economic narrowness of the law and economic paradigm.
Let’s proceed from minor revisions to major challenges. For a relatively minor revision of separate spheres and hostile worlds thinking, consider philosopher Elizabeth Anderson. At first reading, her arguments cling closely to a separate spheres view where intimate and market relationships occupy polar normative spaces. “Personal goods,” she argues, “are undermined when market norms govern their circulation” (Anderson 1993: 152). More specifically, commodifying sexual relations “destroys the kind of reciprocity required to realize human sexuality as a shared good” (154). We see
Anderson delicately balancing the need to renegotiate gender power relations without making them into marketlike contracts. She endorses, for instance, marriage contracts designed to equalize couples’ equality “provided that the spirit of a market transaction… does not dominate their interactions” (157). A critical task for modern societies, therefore, “is to reap the advantages of the market while keeping its activities confined to the goods proper to it” (167).
Along the way, however, Anderson qualifies her hostile worlds diagnosis by opening up the possibility of morally differentiated market practices. While declaring herself strongly against legalization of prostitution, she allows that under circumstances of dire economic deprivation, impoverished women should have the right to sell their sexual services. Invoking the possible scenario of professional sex therapy designed to free people from “perverse, patriarchal forms of sexuality,” Anderson acknowledges that some commercial sexual services might have “a legitimate place in a just civil society” (156). Thus, she envisages the use of legal means to maintain the boundaries between separate spheres. But she leaves us with a theoretical dilemma: are markets inherently incompatible with intimacy, or are there some forms of market transactions that correspond to different forms of intimacy? Facing the same question, legal philosopher Margaret Jane Radin breaks with Anderson by offering a bold critique of both hostile worlds analyses and Posner — like “universal commodification” theories. Yet in the last instance Radin returns to a modified version of the hostile worlds view.
In Contested Commodities, Radin proposes a body of law that would regulate and distinguish the zone she calls incomplete commodifi- cation—where “the values of personhood and community pervasively interact with the market and alter many things from their pure free-market form” (Radin 1996: 114). As she clearly states, this zone includes instances of commodified sexual relations and parent-child ties. In her model, “payment in exchange for sexual intercourse” along with “payment in exchange for relinquishing a child for adoption” are “nodal cases of contested commodification” (131).
Sexual relations, Radin argues, “may have both market and nonmarket aspects: relationships may be entered into and sustained partly for economic reasons and partly for the interpersonal sharing that is part of our ideal of human flourishing” (134). However, despite her insistence on the interaction of culture and law, as well as her cogent objections to what she calls the “domino” theory of commodification, Radin implies that “complete commodification” would occur with monetization in the absence of institutional—especially legal—protections. In the case of prostitution, for instance, while she advocates the decriminalization of the sale of sexual services, she also insists that “in order to check the domino effect,” the law should prohibit “the free-market entrepreneurship” that would tag along with decriminalization and “could operate to create an organized market in sexual services.” Different forms of regulation—including a ban on advertising—are necessary, she concludes, “if we accept that extensive permeation of our discourse by commodification-talk would alter sexuality in a way that we are unwilling to countenance” (135-36).
When it comes to baby-markets, ranging from what she calls “commissioned adoptions” to “paid adoption of ‘unwanted’ children,” and including surrogacy (136), Radin wavers even more visibly. Although baby giving may in fact constitute an act of “admirable altruism,” both toward the baby’s and the adoptive parents’ welfare, baby selling would put that altruism in question. She concedes, however, that in principle babies could belong to a zone of “incomplete commodification,” with “coexistent commodified and noncommod — ified internal rhetorical structures” allowing altruism along with sales (139). But, once again, as with prostitution, she fears the ultimate dominance of market discourse. “If a free-market baby industry were to come into being,” Radin asks,
how could any of us, even those who did not produce infants for sale, avoid measuring the dollar value of our children? How could our children avoid being preoccupied with measuring their own dollar value? This measurement makes our discourse about ourselves (when we are children) and about our children (when we are parents) like our discourse about cars. (138)
Even though Radin comes much closer than Anderson to rejecting the hostile worlds dichotomy, in the last instance she flinches.[14]
Similarly, Margaret Brinig recognizes the weaknesses of both hostile worlds and nothing-but formulations, yet hesitates to specify what lies beyond them. She directly confronts the standard legal treatment of intimate family relations. We cannot, she argues, transfer intact, commercially rooted concepts of market, firm, and contract to the sphere of family interactions. While conceding that a contract or market model may be usefully applied to the formative stage of family relationships, as in courtship and adoption, she contends that the model fails to accommodate ongoing family ties. Most notably, contract law “does not have the right concepts or language to treat love, trust, faithfulness, and sympathy, which more than any other terms describe the essentials of family” (Brinig 2000: 3). Struggling to move beyond an orthodox nothing-but economic view, Brinig often veers toward traditional hostile world polarities, declaring that
marriages, or at least most marriages, are not like these contracts or Chicago School law and economics efficiencyseeking venturers. When marriages are good, they involve selfsacrifice, sharing, and other-regarding behavior, perhaps a more “feminine” view of the universe. They are relationships, not just relational contracts…. As a society we have tremendous incentives to promote the noncontractual, nonmarket view of marriage. (18)
Brinig moves cautiously however toward less dualistic or reductionist paradigms. To replace the monistic contract model, she distinguishes between contracts and covenants; the first restricted to “legally enforceable agreements,” the latter, “agreements enforced not by law so much as by individuals and their social organizations” (1). Covenant, she further specifies, “is a compact or promise that cannot easily be broken even if one side does not perform fully or satisfactorily. It thus has durability beyond that of many firms and far beyond the time horizon of the market, where a transaction may be entirely episodic or discrete” (6). Such covenants—especially applicable to husband-wife and parent-child ongoing relations—imply not only “unconditional love and permanence,” but third-party involvement, such as God, the community, or both.
Brinig never quite specifies the differences in relations or transactions that characterize what she calls contracts and covenants. She declares:
Although the classical theory of the firm gives us some valuable insights into marriage, it falls short in part because of the special characteristics of marriages, primarily intimacy and privacy. It may tell us why a continual stream of contracts will not work in the context of marriage, and even why people marry, but not why in the most successful of marriages each spouse will gladly contribute without “counting the cost.” Here the new institutional economics does far better. Through stressing transaction costs, the new institutional economics approaches the idea of covenant and the broader community concerns about marriage. (109)
Extended only slightly, however, Brinig’s covenant and contract distinction conveys not just polarities but appropriate ways of representing social relations.
Like Radin and Brinig, legal theorist Cass Sunstein is trying to find a superior analytic position somewhere between hostile worlds and nothing-but conceptions. Searching for ways out of the economic reductionism dominant in legal scholarship, Sunstein and other proponents of what Lawrence Lessig (1998) calls the “New Chicago School” of law, are paying close attention to social meanings and norms (see also Lessig 1995, 1996). More specifically, in his Free Markets and Social Justice, Sunstein insists: “We should agree that social norms play a part in determining choices, that people’s choices are a function of their particular social role; and that the social or expressive meaning of acts is an ingredient in choice” (Sunstein 1997: 36). Noting that economics “at least as it is used in the conventional economic analysis of law—often works with tools that, while illuminating, may be crude or lead to important errors,” he challenges economistic accounts of human motivation and valuation (4). In particular, sharply critical of “monistic” legal theories of value, Sunstein makes a compelling argument for the multiplicity and incommensurability of human values, such as the distinction between instrumental and intrinsic values attached to goods or activities.
When it comes to the economic valuation of intimacy, including sexual relations, Sunstein’s notion of norm-determined incommensurability marks a sharp cultural divide between financial and sexual exchanges. He notes that “if someone asks an attractive person (or a spouse) for sexual relations in return for cash” the offer would be insulting, as it reflects “an improper conception of what the relationship is” (75). He goes on to explain that
the objection to commodification should be seen as a special case of the general problem of diverse kinds of valuation. The claim is that we ought not to trade. .. sexuality or reproductive capacities on markets because economic valuation of these “things” is inconsistent with and may even undermine their appropriate kind (not level) of valuation. (76)
Yet Sunstein opens a significant wedge in his analysis. While on the one hand endorsing the view that some kinds of transactions, including sexual ones, are utterly incompatible with the market, hence with monetary transactions, he also acknowledges that markets and monetary transactions can accommodate multiple systems of valuation. Markets, he points out, “are filled with agreements to transfer goods that are not valued simply for use. People. .. buy human care for their children.. .. They purchase pets for whom they feel affection or even love.” Therefore,
the objection to the use of markets in certain areas must depend on the view that markets will have adverse effects on existing kinds of valuation, and it is not a simple matter to show when and why this will be the case. For all these reasons, opposition to commensurability, and insistence on diverse kinds of valuation, do not by themselves amount to opposition to market exchange, which is pervaded by choice among goods that participants value in diverse ways. (98; for a more general discussion of commensuration, see Espeland and Stevens 1998)
In the same way, Sunstein agrees that money, rather than necessarily flattening goods and relations, is itself socially differentiated: “Social norms make for qualitative differences among human goods, and these qualitative differences are matched by ingenious mental operations involving qualitative differences among different ‘kinds’ of money” (41). While at first Sunstein seems to have responded to the nothing-but “law and economics” with a nothing-but culture alternative, he moves on to a much more sophisticated analysis of social relations.
More impatient than Sunstein with uncritical adherence to hostile worlds views, philosopher Martha Nussbaum sets out to debunk the widespread presupposition that “taking money or entering into contracts in connection with the use of one’s sexual or reproductive capacities is genuinely bad” (Nussbaum 1998: 695; for a more general exposition of Nussbaum’s ideas, see Nussbaum 1999). Nuss — baum points out how much revulsion against payment for bodily performance has proceeded from class prejudices. Using the case of prostitution to deconstruct sexual commodification more broadly, Nussbaum asks us to reassess rigorously “all our social views about money making and alleged commodification” (Nussbaum 1998: 699). Notice, she tells us, how most cultures mingle sexual relations and forms of payment, and establish differentiated continua of such relations—ranging from prostitution to marriage for money and including “going on an expensive date where it is evident that sexual favors are expected at the other end” (700). Nussbaum goes farther: she documents the wide range of paid occupations in which women accept money for “bodily services,” from factory workers and domestic servants to nightclub singers, masseuses, and even the professor of philosophy who “takes money for thinking and writing about what she thinks—about morality, emotion… all parts of a human being’s intimate search for understanding of the world and self-understanding” (704).[15]
Yet despite sharing many features with these other forms of “bodily services,” only prostitutes are stigmatized. Step by step, Nussbaum dismantles standard explanations of what makes prostitution unique, such as its immorality or its support of gender hierarchies. Along the way, she provides persuasive philosophical arguments against hostile world doctrines, in particular the assumption of money’s incompatibility with intimacy. Not true, she argues, that a prostitute “alienates her sexuality just on the grounds that she provides sexual services to a client for a fee” (714). Accepting money in exchange for services, even intimate services, is not intrinsically degrading. After all, Nussbaum reminds us, musicians laboring under contract and salaried professors still produce honorable and spiritual works. In the same way, she insists, “there is no reason to think that a prostitute’s acceptance of money for her services necessarily involves a baneful conversion of an intimate act into a commodity” (716). Nor does prostitution, despite hostile worlds concerns, contaminate noncommercial sexual relations; different types of relationships can and have always coexisted.
Instead of debating the morality of commercial sex, insists Nuss — baum, we should be concentrating on expanding women’s limited labor opportunities by means of education, skills training, and creation of jobs. Criminalizing prostitution, Nussbaum argues, will not correct an unequal labor market but further limit poor women’s employment alternatives. She does, however, draw the line at nonconsensual, coerced prostitution and child prostitution. Thus, short of that limit, Nussbaum provides a strong case against the hostile worlds argument and for the equivalence of a wide variety of connections between payment and intimacy. That equivalence, however, fails to recognize sufficiently that in practice payment systems and social ties differentiate and that people attach great importance to those differentiations.
Legal scholars Linda Hirschman and Jane Larson propose a still more radical overhaul of hostile worlds views. Although at first reading their alternative resembles a Posner-like nothing-but econo — mistic script, on close analysis it puts us on quite a different, more political ground, Applying a feminist-sensitive bargaining theory to heterosexual relations, they advocate a new sexual order of what they call “hard bargains” where “men and women can recognize the age- old political nature of their negotiations over sexual access as well as their more recent commitment to equality and begin to develop workable processes for resolving their differences and making a fair division of the goods of their sexual cooperation” (Hirschman and Larson 1998: 3).
Dismissing the hostile-worlds paradigm, Larson and Hirschman insist that sexual bargaining goes on “despite the cultural association of male-female sex with unreasoning romance and passion” (27). Because heterosexual bargaining “takes place between naturally and socially unequal players” (267), they propose legal intervention to redress unequal bargaining outcomes. “Structured bargaining” is possible, they argue, precisely because “eroticism and emotions are [not] exempt from the ordinary rules of human behavior” (268). More concretely, their policy proposals to achieve more equitable sexual bargains directly challenge notions of separate spheres. Instead they distinguish four sexual regimes, each involving distinct relations between the parties and distinctive payment systems—ex — cept for rape, where they propose to criminalize the relationship entirely. The four are marriage (as seen from the viewpoint of adultery), concubinage (or in their terms, fornication), prostitution, and rape. Let us take them up each in turn.
When it comes to extramarital sex, Hirschman and Larson envision a radically transformed negotiation between spouses. Arguing that marriage should include “a nonnegotiable duty of sexual exclusivity” (285), they recommend civil compensation for the personal injury of adultery: either as a “bonus” when dividing marital property after divorce or death, or by an even more revolutionary “tort action for money damages available during the ongoing marriage or after divorce” (285). Hirschman and Larson acknowledge that in the context of a “sharing model of marriage” (286) their proposed tort of adultery involving compensatory monetary transactions within legally intact marriages might appear incongruous. Yet they strongly justify their proposal as a much-needed legal strategy for redressing spouses’ bargaining power.
In the case of nonmarital long-term cohabitants, Hirschman and Larson’s emphatic “concubinage proposal” (282) argues in favor of contractual obligations between unmarried sexual partners. Significantly, they recommend doing away with the legal fiction underlying the landmark Marvin v. Marvin palimony decision, which distinguishes meretricious or illicit (sexual) aspects of an unmarried couple’s long-term relationship from their legitimate contractual agreements, such as contracts for domestic services or business partnerships. This is quite a reversal, because, as we saw earlier, courts have worked hard to construct such “severability” rules as a way to distinguish legitimate marital ties from prostitution.[16] Arguing that “we see no reason why sex should be ruled out as motivation for an exchange between intimates,” Hirschman and Larson support nonmarital sexual bargains as “fair trades” (280-81). They do not, however, propose to abolish relational distinctions. Instead, they seek to redraw the boundaries among relationships, matching types of entitlements to those relationships. Their proposed regulatory statute, for instance, applies to couples who “have been sexually involved for a specified duration of time” (280), not to short-term sexual partners. Therefore, they explain, the differentiation between prostitutes and concubines “remains a morally meaningful distinction” (282). The regulation of concubinage, furthermore, offers couples choices “from a graduated series of relational obligations, with marriage as the most comprehensive” (285).
Meanwhile, note Hirschman and Larson, prostitution appears to be the “purest of bargained-for sex” (6). Yet it is often a bad bargain involving unequal power, frequently bordering on coercion. That does not however make selling sex—especially adult consensual exchanges—a criminal activity. Instead of criminalizing prostitution, they propose the regulation of the sex business via existing labor laws, thereby redefining the kind of relationship among prostitutes, patrons, and pimps by assimilating them to a different widely recognized relational category of employer-worker.
Hirschman and Larson’s clear-headed mapping of relational distinctions does not however lead them to blankly endorse all sexual relationships. In direct parallel to Nussbaum, when it comes to nonconsensual intercourse or, regardless of consent, sexual relations between adults and children, they recommend criminal penalties. In that way, they are not so much denying the boundary between legitimate and illegitimate sexual relations as displaying and fortifying that boundary. By proposing to legitimize new forms of monetary compensation for unmarried and married couples and by treating prostitution as labor rather than crime, Hirschman and Larson undercut hostile worlds views in fundamental ways. Nor, regardless of their hard-nosed economistic vocabulary, are they forwarding a nothing-but market alternative. Like advocates of comparable worth in employment, they promote legal intervention to reorganize inequitable markets and to ban unacceptable contracts.