Exploitation: From Practice to Theory [1 ed.] 9781786602039, 9781786602046, 9781786602053

Table of contents :
Contents
Part I
STRUCTURAL INJUSTICE
LABOUR, RACE, AND THE MARKET
Chapter 1
Unequal Bargaining Power
and Economic Justice
How Workers Are Exploited
and Why It Matters
Chapter 2
Sweatshop Labour as Global Structural Exploitation
Chapter 3
False Parallels
Exploitation in Markets and ‘Exploitation’ in Social Relationships
Chapter 4
Racial Exploitation and the Payoff of Whiteness
Part II
EXPLOITATION AND INEQUALITY
GESTATIONAL AND CARE LABOUR
Chapter 5
Exploitation, Commodification,
and Equality
Chapter 6
Exploitation and Intimate Labour
Chapter 7
Exploitation through the Lens of Structural Injustice
Revisiting Global Commercial Surrogacy
Chapter 8
‘Women’s Work’, the Ethics of Care, and Women’s Human Rights
Part III
RETHINKING THE BOUNDARIES AND CONTEXTS OF EXPLOITATION
Chapter 9
Exploitation and the Global
Demands of Beauty
Chapter 10
Kidney Sales
How Far Do Sellers Exercise Reasoned Freedom? Cases from Bangladesh
Chapter 11
What Is Wrong with Price Gouging in the Drug Market?
Chapter 12
Exploiting Hope through Unproven Medical Interventions
Bibliography
Index
About the Contributors

Citation preview

Exploitation

Studies in Social and Global Justice Series editors: Ben Holland, Lecturer in International Relations, The University of Nottingham, Tony Burns, Associate Professor, The University of Nottingham As transnational interactions become more prevalent and complex in our interconnected world, so do the questions of social justice that have often featured in political discourse. From new debates in human rights and global ethics to changing patterns of resistance and precarity in the global economy, via an interrogation of the impact of climate change, Studies in Social and Global Justice publishes books that grapple with a broad array of critical issues faced in the world today.

Labour and Transnational Action in Times of Crisis, edited by Andreas Bieler, Roland Erne, Darragh Golden, Idar Helle, Knut Kjeldstadli, Tiago Matos and Sabina Stan A Human Right to Culture and Identity: The Ambivalence of Group Rights, by Janne Mende Exploitation: From Practice to Theory, edited by Monique Deveaux and Vida Panitch Social Institutions and the Politics of Recognition: From Hegel to the Present, by Anthony Burns (forthcoming)

Exploitation From Practice to Theory

Edited by Monique Deveaux and Vida Panitch

London • New York

Published by Rowman & Littlefield International, Ltd. Unit A, Whitacre Mews, 26-34 Stannary Street, London SE11 4AB www.rowmaninternational.com Rowman & Littlefield International, Ltd. is an affiliate of Rowman & Littlefield 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706, USA With additional offices in Boulder, New York, Toronto (Canada), and Plymouth (UK) www.rowman.com Copyright © 2017 Selection and editorial matter © Monique Deveaux and Vida Panitch. Copyright in individual chapters is held by the respective chapter authors. All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN:

HB 978-1-78660-203-9 PB 978-1-78660-204-6

Library of Congress Cataloging-in-Publication Data ISBN 978-1-78660-203-9 (cloth : alk. paper) ISBN 978-1-78660-204-6 (pbk. : alk. paper) ISBN 978-1-78660-205-3 (electronic) ∞ ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America

Contents

Introduction: Exploitation: From Practice to Theory  Monique Deveaux and Vida Panitch PART I: STRUCTURAL INJUSTICE: LABOUR, RACE, AND THE MARKET 1 Unequal Bargaining Power and Economic Justice: How Workers are Exploited and Why It Matters Richard W. Miller 2 Sweatshop Labour as Global Structural Exploitation Maeve McKeown 3 False Parallels: Exploitation in Markets and ‘Exploitation’ in Social Relationships Waheed Hussain 4 Racial Exploitation and the Payoff of Whiteness Charles W. Mills PART II: EXPLOITATION AND INEQUALITY: GESTATIONAL AND CARE LABOUR 5 Exploitation, Commodification, and Equality Anne Phillips 6 Exploitation and Intimate Labour Vida Panitch

v

1

13 15 35

59 75

97 99 119

vi 

7 Exploitation through the Lens of Structural Injustice: Revisiting Global Commercial Surrogacy Agomoni Ganguli Mitra 8 ‘Women’s Work’, the Ethics of Care, and Women’s Human Rights Lynda Lange

139 157

PART III: RETHINKING THE BOUNDARIES AND CONTEXTS OF EXPLOITATION 177 9 Exploitation and the Global Demands of Beauty Heather Widdows 10 Kidney Sales: How Far Do Sellers Exercise Reasoned Freedom? Cases from Bangladesh M. Shaiful Islam and Des Gasper

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195

11 What Is Wrong with Price Gouging in the Drug Market? Ruth J. Sample

221

12 Exploiting Hope through Unproven Medical Interventions Jeremy Snyder

241

Bibliography261 Index 279 About the Contributors

289

Introduction Exploitation: From Practice to Theory Monique Deveaux and Vida Panitch

This volume takes as its point of departure the view that analyses of realworld practices of exploitation – such as organ selling, price gouging, sweatshop labour, and commercial gestational surrogacy – must inform our theoretical understanding of what exploitation consists in and why it is wrong.1 In so doing, it challenges leading philosophical accounts of exploitation to confront globalized, racialized, and gendered practices which, in our considered judgements, are clearly exploitative. That dominant accounts cannot readily explain why such practices are exploitative does not imply that they are not so; rather, it more likely suggests the inadequacy, or at the very least, incompleteness, of these accounts of exploitation. Their inadequacies are laid bare when we move backwards, as it were, from practice to theory – by looking to social relations and practices rife with unfair advantage taking, and from there constructing an account of exploitation that can expose, and provide solutions to, exploitative practices in our nonideal world. Contemporary theoretical discussions of exploitation tend to align with either the liberal or Marxist traditions. Those who take a broadly liberal approach seek to determine the presence of exploitation by asking whether particular transactions between individuals have been marred by impaired consent and/or unfair price. Conceiving of exploitation as the result of an unfair or fraudulent contractual arrangement between two consenting parties allows for the important insight, advanced most notably by Alan Wertheimer, that some exploitative transactions may nonetheless be mutually advantageous.2 By contrast, those influenced by the Marxianstructuralist tradition see exploitation as resulting from, and located within, social and economic systems and structures of oppression. Exploitation, in this view, as exemplified in the work of Iris Marion Young, is the 1

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inevitable by-product of various interlocking systems of social oppression which deny some people equal (civic, social, or political) standing, and entrap them in relations of subordination.3 According to the Marxian-structuralist model, a focus on consent, fairness, and benefit sharing is inadequate, as is a preoccupation with individual exchanges more generally. From this perspective, the liberal-transactional approach fails to take into account the trenchant and institutionalized inequalities that consistently make some agents exploitable by others. And by focusing as it does on two-party exchanges that abstract away from the concrete realities and background injustices against which such exchanges transpire, it provides an overly narrow theoretical framework. As such, it fails to acknowledge and address the reality that the victims of exploitation generally come from among the marginalized, the oppressed, and the vulnerable – that, in essence, exploitative arrangements track preexisting global, racial, and gender injustices. Focusing on issues of impaired consent and unfair transactions leads us to underestimate occurrences of exploitation, as well as the depth of our collective responsibility to address the social conditions that render some so much more exploitable than others. However, transactional approaches that analyse exploitative practices in terms of the pernicious elements of specific two-party transactions bear certain advantages that make the view philosophically attractive. The term ‘exploitation’ is among the most widely applied of moral concepts, often without precision, and carries profound rhetorical force. If we are concerned to distinguish its rhetorical use from its normative use, we must be careful not to deploy the term whenever we intend to call something unfair, unjust, harmful, oppressive or the like. If exploitation becomes synonymous with injustice, it risks losing its normative force; and theorizing about it loses its normative value. Moreover, focusing on individual exchanges enables us to identify cases of manipulation, fraud, and the withholding of fair benefits for which particular persons can and should be held accountable. A significant shortcoming of the structural approach is that it can lose sight of the specific agential aspects of exploitation – that is, troubling features of certain transactions that are critical to explaining why this particular exchange, in this instance but not others, is exploitative. In this regard, the transactional model offers a valued strategy by which to expose the harms perpetrated by exploiters as such, rather than the myriad harms generated by their participation in an unjust social order. Particular agents, based on their transactional behaviours towards concrete others, can and should be sanctioned for exploiting, quite apart from whatever duties we all bear to correct institutionalized injustices. This volume seeks to push past the familiar and increasingly unhelpful binary in exploitation theory by drawing on and extending the best insights

Introduction

3

from both traditions. It takes as its key question whether we can, in a meaningful sense, pay close attention to the socio-structural injustices that render some exploitable at the hands of others while heeding the relational and agential nature of transactional exploitation. Our contributors navigate these waters by taking concrete examples of practices most of us deem exploitative and demonstrate that neither of the two traditional models fully allows us to explain the nature of the exploitation in question. The chapters focus on the ways that structural injustices give rise to social inequalities, which in turn make possible exploitative practices. Rather than dismissing questions of consent and fair benefit sharing, however, as many structural analyses do, our authors take these concepts seriously and attempt to integrate them into a broader and more structurally informed analysis of exploitation in practice. In each chapter, what the author seeks to demonstrate is that exploitation runs deeper than the liberal–transactional model allows, but also that it is a mistake to conflate a duty not to exploit specific others with a more general duty to correct injustices in the social order. Despite dominating the philosophical literature, transactional and structural accounts are not the lone two voices in exploitation theory. Vulnerability theorists have contributed a great deal to thinking about exploitation, following from Robert Goodin’s influential work on the topic. On his consequentialist account, when those most vulnerable to us depend on our choices for their need satisfaction, we have a unique responsibility not to take advantage of their dependence.4 When instead of meeting their needs, we take advantage of their particular dependence upon us, we exploit them. This approach attempts to navigate the traditional binary of exploitation theory by addressing both the interpersonal and agential nature of the exploitative relationship, as well as the underlying conditions of deprivation that render persons exploitable. However, while vulnerability theory captures something profound about what it means to exploit those close to us, it struggles to explain the duties we have not to exploit those with whom we bear no preexisting duty of need satisfaction. Cases of price gouging, organ sale, sweatshop labour, and the like are ones in which the needs of a vulnerable agent are certainly going unmet, but in which this is likely due to a failure on the part of some other individuals or institutions charged with the task. In the face of such deprivation, a mutually advantageous, albeit exploitative, transaction may indeed prove the only option by which the needy can meet their needs. According to vulnerability theory, it isn’t clear that the exploiter is indictable here, nor, for that matter, that this qualifies as exploitation per se. The contributors to this volume are very much following in the footsteps of vulnerability theory in their desire to push beyond the traditional binary of transactionalism and structuralism. But they attend more closely to the institutional (versus the interpersonal) dimensions of exploitation. Deprivations

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that render persons susceptible to exploitation are usually institutional in nature, unequally experienced by some and not others. Inequality, understood in terms of the unfair distribution of social power, social privilege, and social resources, thus emerges as the central category of moral concern in the chapters that follow – an essential concept for understanding and unpacking the idea (and practice) of exploitation. Inequalities of wealth, authority, bargaining advantage, and the privileges of race, gender, geography, and class are central to the analysis of exploitation offered herein. It is not simply that these social realities render some vulnerable to others, which they surely do, but rather that insofar as their vulnerabilities emanate from social and political inequalities, it is the latter that serve as the deeper well from which both vulnerability and exploitation spring. Vulnerability describes a state wherein one is exploitable, but it is inequality that produces this state. Inequality thus serves as the connective tissue between chapters in the volume, and their authors’ respective critiques of and proposals regarding the theory and practice of exploitation. The volume has two principal aims. First, it seeks to show that the deficiencies of existing theories of exploitation are exposed when we attempt to use them to explain existing and emerging exploitative practices. And second, it aims to demonstrate that any new conception of exploitation – one that both draws from the best of what the two traditional models have to offer, and at the same pushes past them – will be a model that takes seriously the structural inequalities that both give rise to and arise from exploitative transactions. ***** PART I: STRUCTURAL INJUSTICE: LABOUR, RACE, AND THE MARKET Contributors to this volume anchor their analyses of exploitation in discussions of specific real-world social and economic practices. They do so with an eye to identifying the structural features of exploitative relations – such as those between black and white Americans, between workers and employers in the global North and the global South, and between desperate consumers and the manufacturers of life-saving pharmaceuticals. In bringing to the fore the structural dimensions of exploitative transactions, we see the extent to which particular social groups are frequently the target of exploitative practices and arrangements, and/or the ways in which exploitation depends on particular institutional arrangements. The volume begins with four chapters that explore the structural features that render labour relations, market relations, and race relations exploitative.

Introduction

5

Richard Miller’s ‘Unequal Bargaining Power and Economic Justice’ sets the stage by taking up the very question that launched philosophical inquiry into the nature of exploitation, namely the unjust treatment of workers under capitalism. Central to Miller’s analysis is the concept of bargaining power, and the various ways in which the transactional inferiority of the worker’s negotiating position is sustained by structural features of a capitalist mode of production. What Miller is concerned to establish is whether it is wrongfully exploitative for owners and employers to take advantage of these conditions and thereby of the workers’ inferior bargaining position. Miller’s penultimate claim is that gaining from the inferior bargaining power of workers is indeed exploitative, but not in a morally relevant sense provided there is a social safety net that meets the workers’ needs; it is, however, exploitative in a morally relevant sense where the desire of the better off to preserve their bargaining advantage is used to ground laws that erode the social safety net in order to sustain the inferior position of workers. In ‘Sweatshop Labour as Global Structural Exploitation’, Maeve McKeown identifies two main deficiencies in ethical assessments of sweatshop labour that focus on the terms of the transactions at hand. First, such an approach overlooks the deep structural socio-economic inequalities at the national and global levels that underpin and make possible such transactions. And second, transactionalist analyses generally fail to see that it is particular social groups – in the case of sweatshop labour, racialized and poor women, often in or from Third World countries – that are exploited, not random individuals. To understand and ethically evaluate sweatshop labour, then, we need to understand it as a form of ‘global structural exploitation’, which McKeown defines as ‘the forced transfer of the productive powers of socially disadvantaged groups to socially advantaged groups’. Her account draws from Marxist analysis of exploitation but significantly revises it to account for the importance of group-specific structures of inequality and subordination, thus contributing to the development of what she calls a broadly ‘intersectional approach’ to exploitation. In ‘False Parallels: Exploitation in Markets and ‘Exploitation’ in Social Relationships’, Waheed Hussain suggests that various exploitation theorists might well be talking past one another because they are not in fact talking about the same thing. He argues that to insist, for example, that one’s spouse make career sacrifices for one’s own benefit, knowing he or she will agree out of love, is wrong, but not strictly speaking exploitative. This, he argues, is because exploitation is a form of wrongful conduct that occurs only in the special circumstances of a market. In the ordinary case, morality does not allow us to roam the world, looking for vulnerabilities in people – even in complete strangers – so that we can ‘leverage’ these to our own advantage. However, in a market, Hussain argues, we have a special permission to take advantage of peoples’

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vulnerabilities because this serves broader social purposes. The concept of exploitation draws a line between legitimate and illegitimate forms of advantage taking in a market context. Hussain concludes that when there is no special permission to take advantage of other peoples’ vulnerabilities, we should appeal to other moral concepts to explain various forms of wrongful behaviour. One of the most glaring omissions of liberal and Marxist analyses of exploitation concerns the centrality of race and racialized oppression, as Charles Mills observes in his chapter, ‘Racial Exploitation and the Payoff of Whiteness’. Mainstream liberal theory, Mills argues, is deeply flawed by its blindness to racial domination and the workings of white supremacy. While it comes as no surprise that liberal approaches that focus on the terms of specific transactions would fail to see the importance of race to exploitative arrangements, it is perhaps harder to see where Marxists, who take structures seriously, go wrong. Mills shows that by reducing racialized exploitation ‘to a variant of class exploitation’, Marxists have persistently ignored the ‘political economy of race’ – the benefits that have accrued to some racial groups (such as whites in the United States) and the legacy of social and economic inequality that continues to afflict subordinated racialized groups (such as blacks in the United States). Without the recognition that exploitation is not reducible to class but is also crucially (and at times, more fundamentally) about race, both historically and in the present day, structural approaches will continue to misunderstand the dynamics and systems that perpetuate exploitative practices within racially divided societies. PART II: EXPLOITATION AND INEQUALITY: GESTATIONAL AND CARE LABOUR The contributors to this volume emphasize the extent to which inequality plays an integral part in understanding how structural conditions contribute to exploitative transactions. In both liberal and Marxian models of exploitation, we find some concern for inequality, be it in bargaining power, benefit sharing, social disadvantage, or social exclusion. The authors of the following four chapters focus their attention on the role of gender inequality in the context of gestational work and care work performed by marginalized women against the backdrop of global inequality. The authors of these four chapters are critical of the narrowness of both the transactional and structural models of exploitation for theorizing and addressing global surrogacy and global care work, but go on to show that a focus on inequality might enable us to draw on what is best in both traditions. In ‘Exploitation, Commodification, and Equality’, Anne Phillips pushes back against Vida Panitch’s argument that we ought to distinguish, and treat

Introduction

7

separately, exploitation and commodification critiques of gestational surrogacy. Phillips argues that many ethically troubling practices, like gestational surrogacy, are precisely problematic because they consist in someone treating another person as less than equal. Regarding and treating someone as unequal is not just a central component of exploitative arrangements; it is also critical to practices that commodify others, or which treat persons as things rather than as individuals with important needs and equal worth. If exploitative and commodifying practices are chiefly troubling because they undermine ‘relations of equality as a whole’, it is imperative to assess broader structural inequalities in determining whether an activity conduces to exploitation. Insofar as unequal treatment, and the structures which support it, admits of degrees, we ought to think of practices like paid surrogacy as located on a continuum. Thus, in evaluating the permissibility of contested practices and the advisability of regulation versus prohibition, we need to ask to what extent that practice depends on, or deepens, the civic and socio-economic inequality of particular social groups. Vida Panitch argues in ‘Exploitation and Intimate Labour’ that we cannot collapse the theoretical distinction between exploitation and commodification as Phillips proposes without finding ourselves unable to explain what makes some sales of intimate labour so much more troubling than others; global surrogacy, for example, as opposed to its domestic counterpart, or street walking as compared to escorting. Commodification theory, Panitch argues, cannot but offer an absolutist indictment of intimate labour according to which all instances of sale are wrong for the same reason and to the same degree, precisely because it condemns the assignment of a price to that which it claims ought not be valued in monetary terms. Exploitation theory, on the other hand, properly sensitized to the ways in which transactional unfairness and structural injustice affect the bargaining power of women in the intimate industries, can provide the kind of analytic flexibility crucial to making policies that protect the concrete needs of those whose interests are most at stake in the intimate industries. Panitch concludes that a mutual concern for equality cannot reconcile commodification theory and exploitation theory, or at least not without greater specificity being given to the kinds of inequalities each view is concerned to address. Agomoni Ganguli Mitra’s chapter, ‘Exploitation Through the Lens of Structural Injustice: Revisiting Global Commercial Surrogacy’, sees structural inequality as a central, even constitutive, feature of much contemporary exploitation. Like Phillips and Panitch, Mitra sets her focus on the example of gestational surrogacy, specifically in India. Mitra shows how women in India are often compelled by chronic poverty and caste constrictions to undertake undesirable work. In the face of such systematic inequalities and subordinating structures, focusing on whether the terms of surrogacy contracts are

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fair and equitable is not enough. To determine whether the practice of surrogacy is exploitative in this context, we need to examine whether structurally exploitative background features exist, as well as forms of transactional unfairness. This demands, Mitra argues, an assessment of gender discrimination as a social practice, and an accounting of a state’s failure to respond to such discrimination. In ‘Women’s Work, the Ethics of Care, and Women’s Human Rights’, Lynda Lange examines women’s care work globally as a phenomenon that includes extensive exploitative practices and arrangements. Lange draws from Iris Marion Young’s notion of a global gendered division of labour, as well as Alison Jaggar’s analysis of ‘transnational cycles of gendered vulnerability’ in making her argument that the exploitative character of much of women’s care work is easily obscured when looking chiefly at the presence or absence of consent and coercion – as liberal approaches typically do. But nor are the exploitative dimensions of global care work readily grasped from within a feminist ethics of care framework, which seeks to revalorize gendered caring as tending to relationships. Instead, a normatively adequate analysis of the gendered landscape of care work globally ought to take its cue from both feminist economics in treating such care practices as labour, and emerging social and economic human rights theory in demanding rights protection in domestic and international law. PART III: RETHINKING THE BOUNDARIES AND CONTEXTS OF EXPLOITATION Starting from examples of concrete practices that are putatively exploitative and asking why they strike us as such changes our theoretical understandings of exploitation. One way in which it can do this, as the remaining four contributions to this volume demonstrate, is by identifying certain practices, hitherto not seen as exploitative, or under-theorized as such, that might nevertheless have exploitative dimensions. Asking about the possibility of exploitation in these contexts reveals further the limitations of conventional views of the concept, and the importance of acknowledging both its structural and transactional features. Heather Widdows asks, in her chapter ‘Exploitation and the Demands of Global Beauty’, whether an exploitation analysis can serve as a helpful framework from which to assess the ever increasing compliance demands of the global beauty norm. Widdows begins by enumerating aspects of the norm that appear coercive in a manner typically thought to be characteristic of exploitation. None of us chooses the beauty norm to which we are all increasingly expected to comply, and for longer periods of life; while we may be free to choose which aspects of the ideal we will conform to, we are not free to choose a different ideal altogether. Widdows considers whether this can be

Introduction

9

problematized by appeal to either a transactional or a structural conception of exploitation and argues that neither is able to fully capture what looks most troubling about the coercive features of the global beauty norm. It is not enough to say that we are consenting in a traditional sense to the norm, as a transactional account implies; but nor is it appropriate to posit a mass false consciousness on the part of all those who comply, as a structural account would seem to demand. Widdows concludes that neither of the traditional approaches to exploitation provides viable guidance to thinking through the coercive apparatus of the global beauty norm. M. Shaiful Islam and Des Gasper, in their study of kidney selling in Bangladesh, give both a micro- and macro-analysis of the factors that contribute to organ vending in this context. Their chapter, ‘Kidney Sales: How Far Do Sellers Exercise Reasoned Freedom? Cases from Bangladesh’, illuminates the crucial capability failures and corollary structural impediments that comprise the real backstory to kidney sales in this region. Much existing ethical analysis of this practice is limited by its purely conceptual and hypothetical framing, and its lack of engagement with the lived realities of would-be kidney sellers. Islam and Gasper identify the concrete gaps in capability that motivate some poor Bangladeshis to sell a kidney – e.g., the need to repay debts, to establish a relationship with a patron of means, and to overcome gendered social structures that limit poor women’s ability to earn an income – in order to explain why some sell kidneys. In comparison with the liberal conception of mutually advantageous exploitation, Islam and Gasper’s analysis provides a normatively deeper (and empirically more accurate) basis from which to ethically evaluate this troubling phenomenon. In her chapter ‘What Is Wrong with Price Gouging in the Drug Market’, Ruth Sample asks what, precisely, price gouging consists in, and whether it is in fact wrongfully exploitative. The term ‘price gouging’, she argues, seems ethically thick in the sense that it is in nearly every case used as a term of moral disapproval. But even if it is harmful, she asks, is it exploitative? Sample uses recent examples of price gouging in the pharmaceutical industry as her test case, and argues that what these examples demonstrate is that price gouging is indeed often unethical, and that in cases where it is unethical it is also thereby exploitative. However, the standard transactional account of exploitation offered by Alan Wertheimer, as well as the consequentialist accounts of Robert Goodin and Richard Arneson, cannot explain why it is unethical, she argues, and therefore when it is exploitative. So much the worse for these views, she concludes. Jeremy Snyder’s chapter, ‘Exploiting Hope through Unproven Medical Interventions’, explores the question of whether one individual can ‘exploit the hope’ of another, where they profit from a relationship with a desperate individual who hopes to benefit from the relationship but who has no rational basis on which to expect such benefit. One example of this kind of

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relationship, he argues, is to be found in the sale of unproven medical interventions, where drugs or procedures that have not been demonstrated to have efficacy in humans are sold to those desperate for improved health or the slowing of medical decline. The wrongness of exploiting hope, Snyder shows, has previously been linked to unfairness in the prices charged for unproven interventions, particularly when the seller has a monopoly on the good being sold. In this chapter, he argues that the wrongness of exploiting hope is better understood as a failure of a specified duty of beneficence towards another. Borrowing the concept of partial entrustment from the literature on ancillary care obligations, he makes the case that those selling unproven medical interventions can fail in their obligations to their customers if they do not take due care of their overall well-being. Snyder concludes that this understanding of the wrongness of exploiting hope can yield important and overdue policy regulations regarding the sale of unproven medical interventions. ***** What should we make of the fact that our traditional models of exploitation cannot seem to capture or account for what in fact looks deeply exploitative about practices like sweat shop labour, kidney sales, global surrogacy, and pharmaceutical price gouging? One answer might be to simply accept that whatever cases our preferred theory cannot account for are thereby not cases of exploitation at all, but of some other moral harm that our considered judgements have mislabelled. This answer may be preferable from the point of view of theoretical consistency. But in pairing the term down to prevent rhetorical (mis)use, this approach has also deprived the concept of much helpful and necessary normative power. This volume therefore rejects such an answer and proposes another, namely that our existing models are inadequate. We do not propose a new model, as it were, but rather a new methodological approach. Our aim is to demonstrate that it is only in moving from practice to theory – in taking seriously our considered judgements about what kinds of real-world practices strike us as exploitative and why – that we can properly see the inadequacies of traditional liberal and Marxist accounts thereof. Our contributors do this with special attention to the relationship between inequality and exploitation. In the practices of exploitation addressed in this volume, the connective thread is the way in which inequalities in bargaining power, in moral and political status, in race, gender and geography, contribute to the taking of unfair advantage characteristic of exploitation. Methodologically, therefore, this volume proposes that philosophers look to real-world instances of exploitation and explore the ways in which our assessments thereof are connected to particular institutionalized inequalities. The solutions will, of necessity, lie in remedying the inequalities that render some social groups vulnerable to exploitation at the hands of others. But as this is an institutional duty we all share, those who use their superior position in the social order

Introduction

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to take advantage of specific others must be held to particular account, not simply for upholding the injustice that maintains their position of dominance, but for exploiting concrete others. One upshot of our approach, which is perhaps best articulated in Mills’ and Hussain’s chapters, is that we may require a plurality of context-sensitive conceptions of exploitation. Consider the unique characteristics of what we might call, in a Walzerian vein, the spheres of exploitation.5 Exploitation within the economic, the familial, the social, or the medical sphere may consist in something altogether different, depending on the kind of inequality most pervasive within the sphere. Different principles of non-exploitation should perhaps therefore be called upon to govern human relations within the relevant sphere and to inform the necessary remedial policies. The idea of theoretical pluralism in exploitation theory is thus that what we deem exploitative in market relations may not in fact be helpful to enabling us to determine what is exploitative in family or personal relations, and vice versa. Inequalities in bargaining power, for example, might prove indispensable to understanding what is exploitative about labour relations, but wholly inappropriate to theorizing exploitation in the family or the more intimate realm in which the body, its parts, and its capacities are shared or cared for. Plural accounts of exploitation may be required to fully capture what it means to take unfair advantage of groups, in economic and/or structural cases, and concrete others in more social or personal cases. And this is perhaps just as it should be, given the variation of norms and values that predominate in these wholly different realms of human relations. We do not conclusively endorse pluralism in exploitation theory, but leave open the possibility that readers of this volume may come to do so at its conclusion. Readers may find that pluralism provides the best strategy by which to balance our considered judgements with the practical realities of our nonideal world, and that it yields the only model of exploitation capable of achieving reflective equilibrium.

NOTES 1. The editors gratefully acknowledge Meena Krishnamurthy’s contribution to the idea for this volume. Her analysis of the direction that exploitation research ought to take shaped the workshop (held at the University of Guelph in October 2015) for which several of volume’s chapters were written. 2. Alan Wertheimer, Exploitation (Princeton: Princeton University Press, 1996). 3. Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990). 4. Robert E. Goodin, Protecting the Vulnerable: A Re-Analysis of our Social Responsibilities (Chicago: University of Chicago Press, 1985). 5. Michael Walzer, Spheres of Justice (New York: Basic Books, 1984).

Part I

STRUCTURAL INJUSTICE LABOUR, RACE, AND THE MARKET

Chapter 1

Unequal Bargaining Power and Economic Justice How Workers Are Exploited and Why It Matters Richard W. Miller Is there a typical feature of the process in which labour is bought and sold under capitalism that provides an important independent reason for change? I will argue that there is. Such answers are familiar, though hardly mainstream. Theorists sympathetic to Marx’s critique of capitalism often say that the typical employer-employee relationship under capitalism is exploitative, and take deriving a benefit from this relationship to be unjust, wrong, shameful, or an interaction that does not occur in the society that people should strive to create. I will argue that their criticisms have not been well-grounded. Either the relationship that they describe does not merit their moral criticism or it is not a typical feature of the buying and selling of labour under capitalism, at least not in developed countries. I will try to do better through a dual proposal, descriptive and moral. The inferior bargaining power of most workers most of the time in a modern capitalist economy pervasively benefits employers, investors, relatively well-off salaried employees, and professionals. Deriving these benefits from bargaining superiority is not unjust, wrong, or shameful, and such interactions will occur in the society we should strive to create, but the moral fact that this way of getting ahead has no inherent value and is nothing to be proud of increases the extent to which economic inequalities under capitalism should be reduced by political means. If the typical way in which labour is bought and sold strengthens the case for intervening in capitalism, there is an important grain of truth in Marxist criticisms of exploitation. However, my argument as a whole will be stalwartly bourgeois. The exploitation that I will describe will be morally significant because of its contrast with cooperative self-advancement that can be thoroughly capitalist. Far from arguing that capitalism should be overthrown, I will sketch morally decisive virtues of capitalism. The outcome of 15

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my bourgeois critique of exploitation is to introduce one important detail into moral foundations for social democracy – foundations appealing to impartial political concern, self-respectful political allegiance and the nurturance of a way of life that is worthy of love. Getting ahead by deriving gains from others’ inferior bargaining power lacks value that cooperative self-advancement possesses, and, in each perspective, this difference is a reason to seek political means to reduce the underlying inequality and its impact on people’s lives. I will start by further specifying the usage of ‘unequal bargaining power’ that is the source of the crucial moral criticism and arguing that workers typically have inferior bargaining power, in this sense, in selling their labour. Then, I will distinguish benefits from unequal bargaining power from what most recent theorists have described as economic exploitation and argue that their claims about the negative moral significance of a typical feature of the process in which labour is bought and sold are not defensible. Finally, I will argue that benefiting from the typical bargaining inferiority of workers has a distinctive moral status in principled political controversy because it lacks the value of other, cooperative ways of getting ahead. UNEQUAL BARGAINING POWER By inferior bargaining power to another with whom one engages in buying or selling, I mean lesser ability than the other to use this process to advance one’s interests that is not due to the desirability to the other of what one offers. To the extent that someone gains from superior bargaining power, his benefit from exchange with another depends on her lesser capability as an exchanger to convert help to him to help by him. Ordinary usage of ‘bargaining power’ reflects the distinction between limits to the usefulness to the other of what one has to offer and limits to the tendency of the offer one obtains to reflect the usefulness of what one offers. Suppose that Smith is employing people to paint his house. He employs Li for very little. The whole explanation of why is that Li has very little skill in painting. This is no basis for a claim that Li has inferior bargaining power. Suppose, on the other hand, that Li must get a job today or starve, Smith is the only local employer looking for the unskilled work that Li offers, and Smith can readily hold out for a lesser wage in bargaining with Li because Smith’s loss from not hiring an unskilled painter today can be made good tomorrow. If Li’s explanation, ‘I just could not hold out’, describes a crucial cause of his acceptance of a low offer, we have a case of unequal bargaining power. To some extent, what Smith gains is due to Li’s lesser capability to use bargaining to advance his interests, due to his gnawing hunger, even though the bargain as a whole involves a more important gain for Li than for Smith.



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The task of distinguishing the two sources of success, the desirability of what one offers to others and one’s ability to use the market to obtain what is desirable to oneself given the desirability of what one offers, is greatly helped by a paradigm in which no one is burdened by a disadvantage in commercial ability of the second kind. Fortunately, the perfect competitive market, a model that has been well-explored (to put it mildly) in the general theory of price, provides such a synoptic ideal. Using this model, economists describe how market outcomes would be determined by participants’ initial holdings and preferences alone, as a result of their unimpeded and equal access to the full advantages of exchange. In the perfect competitive market, prices are determined by a virtually instantaneous process of offering and bidding, with no transaction costs, responding to a fixed array of methods of production, leading to totally reliable contracts without enforcement costs, among a virtually infinite number of non-colluding offerers and takers of bids for the relevant commodities, each offered in units of known, identical quality. To the extent that someone obtains less from actual exchange than she would in a perfect competitive market for what she offers, the usefulness of exchange to her in obtaining what she wants from others is limited by a factor other than the desirability to them of what she offers. So those who lose less from such imperfections than those with whom they bargain benefit from superior bargaining power. One source of inequality of bargaining power, which I have already mentioned, consists of urgent time pressure on one party to quickly make a deal, the capacity of the other to hold out and awareness of the situation on both sides. This circumstance cannot arise in the perfect competitive market, where all transactions are, by stipulation, virtually instantaneous. Unequal pressure of competition is a further, independent source of unequal bargaining power, excluded by the presuppositions of the perfect competitive market. Even if he is not under any special time pressure to make a deal, Li suffers from inferior bargaining power if bidders for unskilled labour have an understanding, tacit or explicit, not to offer wages above a certain level, while sellers of unskilled labour have no corresponding ability to coordinate their reserve price. Differences in information or in ability to have agreements enforced, absent from the perfect competitive market, are also potential sources of unequal bargaining power. Suppose that one party gets less than she otherwise would because she lacks relevant information, known to and readily accessible to the other party, and she cannot gain access to it without substantial costs, so high that she is rational not to take them on. Perhaps a known defect, hard for her to detect, was not revealed. Then she has suffered from disadvantage in the bargaining process. Conversely, one party might face special obstacles to establishing the actual desirability of what he has to offer. A job seeker

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burdened by a racial stereotype may have inferior bargaining power in the face of assumptions, hard to overcome, of lesser responsibility or skill. Or suppose that one party knows that she will have difficulty establishing title to what she is selling in case of legal dispute, even though the title is good and she has made a good faith effort to keep it sound, while the other party knows that he will have no such problem if he buys; both are aware of the situation and it affects the ultimate agreement. This inequality might affect the sale of land from a Palestinian farmer to a Jewish settler on the West Bank, for example. Then, the outcome would reflect unequal bargaining power due to imperfect enforceability that does not exist in the perfect competitive market. SOME PERVASIVE INEQUALITIES IN BARGAINING POWER So far, I have relied on a few pairings of buyer and seller, several of them made-up. However, unequal bargaining power of employers, on the one hand, and actual or would-be employees, on the other, affect the terms of most labour contracts in all actual capitalist economies. Greater time pressure to make a deal, less ability to obtain offers based on knowledge of what one has to offer, and greater pressures of competition burden typical employees and would-be employees, with no equally burdensome difficulty in making use of the market for labour on the other side. In every capitalist economy, most people who work or want to work for others are not managers, professionals, or highly skilled; they are workers in the ordinary usage of the term, which I will employ. This preponderance of workers, in that usage, in the labour force is sustained by core features of capitalist economic life: the growing scarcity of occupants as one moves upward in echelon in functional structures for coordination, supervision, and command and employers’ incentives to seek technologies and work processes that reduce the need to pay premiums for skills. Most workers in every capitalist economy have few reserves of liquid financial assets, not enough to live on for a substantial period of time. In 2007, at the height of a U.S. wealth boom, the average wealth apart from an owned home of the lowest two fifths of households, was negative, with debts exceeding assets by $10,500. Median household non-home wealth was $23,500, but most was in pension funds. In 2010, the corresponding amounts were a $14,800 deficit and a household median of $10,000.1 If workers have significant non-financial wealth, it is nearly always a house bought on credit that must be paid for at frequent intervals. This circumstance perpetuates the situation that Alfred Marshall noted a century ago, as producing ‘special disadvantages’ for those who sell their labour: ‘that labour power is ‘perishable’, that the sellers of it … commonly … have no reserve fund and that they cannot easily withhold it from the market’.2



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Among workers seeking employment, the resulting pressure to find a job soon is increased by the absence in real labour markets of the full information available for free in the perfect competitive market. Using rational rules of thumb to save on costs of information gathering, potential employers take unemployment of substantial length in the job categories of most workers to be a sign that the work seeker has been found an undesirable prospect or that the worker’s skills and work habits have declined through disuse. So, if workers are unemployed, prolonging a job search in the hope of finding a higher wage soon bears serious risks of becoming spoiled goods. On the other hand, for employed workers (in contrast to participants in the perfect competitive market), searching for a better job is costly. Looking for another job takes time, interferes with work, and may create a reputation for discontent that will be unattractive to employers. One can hope to be discovered by another employer actively seeking to fill a position with terms better than one’s own. But in the job categories of most workers, outside employers typically have no reason to invest time and money in obtaining information about the individual productivity of those who work for others. The disincentive of the costs of such information gathering is strengthened by an informational asymmetry: if the current employer would let a worker leave for better compensation this may well reflect inside information that the worker is not worth the cost of beating the outside bid.3 These pressures on workers to accept the terms offered for employment and not to seek improved terms elsewhere might, in principle, be balanced by pressures to hire on the employers’ side, cancelling any inequality in bargaining power. But normal personal responses to episodes in the labour market suggest widespread imbalance favouring employers. At the start of the leading theoretical account of the special capacity of typical employers to set the price of labour, Alan Manning notes, ‘People go to the pub to celebrate when they get a job … people go to the pub to drown their sorrows when they lose their job rather than picking up another one straight away’.4 These responses reflect the normal fact, consistently reported in labour market studies, ‘that vacancy rates are low, that there are typically many applicants for vacancies, and that average vacancy durations are very short (particularly in comparison with the duration of spells of unemployment)’.5 In one British survey, three quarters of employers (weighted by the size of their workforce) reported that routine, unskilled positions and operative and assembly line positions were easily or very easily filled, and over two-thirds reported the same ease in filling clerical and secretarial positions.6 In the United States, the ratio of job openings to those actively seeking work averaged about 1 to 1.8 in the three years before the start of the Great Recession, about 1 to 3 between 2005 and 2015.7 The ratio is significantly reduced if those not actively seeking work who want it and are available for it are added to active job seekers, halved by the further inclusion of people involuntarily working part-time.8

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The imbalance between pressures to be hired and to hire is reliably reproduced by the restless innovation, consumer sovereignty and search for economy in inputs that are the distinctive glories of capitalist production.9 Firms constantly seek innovations that will gain new customers and retain old ones, in the face of the rival lure of others’ offerings. In this process, the triumphs in some sites of production are accompanied by losses in rival sites, which shed employees, who must compete for new jobs. Seeking to reduce labour costs, firms relocate sites of production (or outsource production) to labour markets where competition for jobs attached to low wages and intense work will be especially sharp, for example, to parts of the world where migrants flee from dire poverty in the countryside to new urban opportunities. This strategy of using desperate competition elsewhere intensifies competitive pressure on workers in established labour markets to accept employers’ offers. In principle, these competitive pressures among workers might be offset by competitive pressures among employers seeking their labour, so that employers do not gain from superior bargaining power. In the perfect competitive market, competition among producers seeking labour inputs to obtain net revenue would guarantee that nothing more would be paid to a worker in the labour force of any firm than what would make her payment beneficial to the firm. The wage of any given worker would correspond to the helpfulness of her hire. But in reality, the market entry that would drive revenue from employment down to this level is pervasively limited by insiders’ advantages such as innovations based on proprietary information (often protected by patents), established reputations (often based on brand names), a secure network of suppliers and distributors, economies of scale, and risks of entering a market when investments in production facilities can only be liquidated at a substantial loss in case of failure.10 In sum, mutually reinforcing inequalities in time pressure, competitive pressure, and ease of establishing the value of what one would provide make the bargaining power of most workers typically inferior to the bargaining power of employers. Owners and investors benefit from these inequalities, which reduce the cost of labour, the most important input to production. In addition, some of the net revenue created by this cheapening of inputs flows to other employees, who are not burdened by the inferior bargaining power of most workers. Top executives in U.S. firms are a striking example. What they will contribute to revenues is hard to assess and subject to extravagant hopes. Collusion combines with this limit to information to enable them to successfully hold out for high offers: their salaries are set by social peers, who offer huge salaries with lofty ‘golden parachutes’, expressing the high hopes in the value of the hire which they want others to indulge in their own compensation.11



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Differences in enforceability also create special bargaining advantages in the higher echelons of paid work. When effective work requires initiative, creativity, subtle judgement, or risk-taking, it will be stultified and badly assessed by the routine supervision and monitoring that oversees work in the lower echelons. Because interpersonal relations, rather than an enforceable allocation of tasks, are so important in the higher echelons, moving to other employers (which is apt to be seen as a desirable reflection of initiative in those echelons) disrupts productively important networks at the old employer. It may also transfer inside knowledge that is competitively useful, in a process that cannot be effectively prevented by contractual means. So at the higher echelons, in the absence of the cost-free perfect enforcement of contracts in the perfect competitive market, the interests of the firm are served by premium salaries, generous bonuses and generous raises in response to outside offers. In the jargon of economics, this extra-high return to the employee is an ‘efficiency wage’, discouraging shirking that might lead to firing, inducing loyalty, and reducing jeopardy to cooperative connections within the firm and to the exclusion of competitors from knowledge of its workings.12 Also, people at high echelons have individual reputations or impressive individual credentials, publicly accessible and capable of improving the reputation of the organization that employs them. These bargaining resources are available to top managers and others as well, for example, top professors. These resources would not exist in the perfect competitive market, in which the benefits to be derived from each transaction are known, without the need for consumers to rely on organizations’ reputations. These resources are not available to a typical worker, whose individual economic virtue will not significantly add to the overall standing of her enterprise. Through these bargaining powers, employees at the higher echelons of firms come to share in the benefits to the firm of the inferior bargaining power of most workers. Freelancers in similar occupations outside of firms benefit from the consequent high standards of pay for their similar work. Shielded from most workers’ inferiority of bargaining power, people in the good jobs of a capitalist society also benefit from the lowered cost to them of what the unshielded people with worse jobs produce or offer in services. EXPLOITATION WITHOUT UNEQUAL BARGAINING POWER? That unequal bargaining power is a typical feature of the process in which labour is bought and sold in modern capitalist economies has become, I hope, a plausible claim. If so, it seems a promising basis for criticism of the typical process as exploitative, the standard charge among those who take this

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process to be an independent source of moral criticism. But in fact, unequal bargaining power rarely figures in recent specifications of this charge.13 The meagre presence of inferior bargaining power in recent moral criticisms of capitalism is at least partly due to an association with Marx and an assumption about him. Theorists of economic exploitation tend to associate the term with Marx’s critique of capitalism. There is a common assumption that the exploitation Marx exposes would, in his view, exist in a perfect competitive labour market, in which there is no inequality of bargaining power.14 Of course, Marx is analysing economies in which capitalists compete with one another, but this is very far from his supposing that there are no systematic bargaining disadvantages of workers in the labour market. The common exegetic assumption is, I think, false.15 Still, the question that I posed at the start, ‘Is there a typical feature of the process in which labour is bought and sold under capitalism that provides an important independent reason for change?’, is not remotely exegetic. By avoiding controversial economic claims, by posing a more cogent moral criticism, or for both reasons, analyses of economic exploitation that do not appeal to unequal bargaining power might better identify the crucial feature. Before arguing that ‘unequal bargaining power’ is a correct answer to the initial question, I will argue that alternative theories of economic exploitation, which are intended to identify the crucial feature, either fail to describe what is typical or direct inappropriate moral criticism at what they describe. Building on Marx’s account of capitalist profit as the extraction of surplus value, some critics of the typical capitalist way in which labour is bought and sold as exploitative have proposed that it involves the forced acceptance of a division of benefits that is, prima facie, wrong. In Nancy Holmstrom’s influential formulation, ‘When x exploits y, y is forced to do unnecessary, unpaid labour and does not control the product of that labour’.16 She says that it is easy to see why this forcing of differential benefit is an evil, and she is certainly correct if, in this portrayal, someone forces y to work for x doing pointless work, for which he is not paid. But none of these features is characteristic of capitalist employment, and none is intended by Holmstrom and others with a similar traditional Marxist view.17 All that is required by their characterization is that y has to find employment from someone or other or face severe hardship (the sort of necessity that forces nearly everyone to cooperate with others in some way), that what y is paid by x for his work provides no more than satisfaction of y’s needs (socially and culturally determined needs that may very substantially exceed biological necessities), and that what y adds to the sale of the output, which x controls, yields net revenue to x (a ‘surplus’, as Holmstrom typically calls it, following Marx). Unlike the caricature, this portrayal accurately depicts typical capitalist employment. But what is evil about it remains to be described.



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Seeking the moral flaw in the distribution of initial assets rather than the division of benefits due to exchange, one could claim that capitalist employers typically derive more benefit than they otherwise would from employment contracts because of a distribution of wealth and other economic resources that is unfair. But then, as John Roemer has pointed out, the topic of criticism is unfair distribution of assets (which can similarly taint benefits in non-labour-related contexts), rather than the capitalist labour relation itself.18 Rather than addressing the initial distribution of assets or the distribution of benefits, one can argue that employers make use of workers’ typical vulnerability in a morally suspect way because of the nature of the capitalist labour market. But up until now, explorations of this possibility either have not addressed a typical feature or have not found an apt basis for moral criticism. Allen Wood, for example, has claimed that capitalist exploitation is, prima facie, wrong because it derives benefits from workers’ weakness or vulnerability and all benefits derived from another’s weakness or vulnerability are, prima facie, wrong. But this description of the tainting feature leads to the absurd conclusion that oncologists and personal trainers are engaged, prima facie, in a morally shady enterprise.19 Others have noted that it is wrong to take advantage of a worker’s economic vulnerability to treat him or her as a mere tool.20 It is certainly appalling for an employer to treat an employee as if she were a hammer, a rake or a pound of fertilizer, taking no care for her that is not physically necessary to maximize output net of upkeep. Evoking such instrumentalization of human beings, theorists of exploitation refer to sweatshops or such novels as Germinal. But while there are too many horrendous employers of this kind, there is no reason to believe that most workers have employers of this kind in an advanced capitalist economy. In most jobs in advanced capitalist economies (e.g., in the United States), more intense and unrelenting work combined with the reduction of amenities would increase output and reduce upkeep. The flow of investment funds to similar jobs in other countries in which workers have even more inferior bargaining power and comply with greater work demands provides evidence, sometimes appalling, of this possibility. Managers do not turn the screws to maximum tightness on workers in part because workers, unlike hammers, can respond to job demands by deciding to quit a job, to refuse to take it, or to rebel. Nor would it be fair to managers to claim that most managers do not care about harm to workers unless it damages their ability to work. Most managers do not like to treat their employees as tools. They seek ways to preserve an established level of ease and amenity well above the bare physical minimum which does not pose a significant threat to profits. Granted, even though the parties to an employment relationship are commonly affected by some felt responsibility to those on the other side – to do a

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decent job or to provide decent wages and working conditions – their major motivation in their relationship is a quest for success for themselves through their joint activity, a quest in which improving the lives of those on the other side of the relationship is not a goal. One can call this attitude, utilitarian in the non-philosopher’s sense, ‘instrumentalization’. It is certainly very different from valuable relations among family, friends, or those committed to a common cause. But in this construal, the characteristic of instrumentalization is no longer a basis for moral criticism of benefit as prima facie wrong. I do no wrong, prima facie, in deriving a benefit from shopping around for the least expensive housepainter who will do a good job on a schedule that fits my needs, any more than the painters in my town do wrong in pursuing their interests in self-advancement in their pricing and painting, provided they make honest commitments and follow through. ‘You treated me as a mere customer/mere provider of services’ is a piercing complaint in many contexts, but not in the provision of services to customers, including labour to employers. Seeking to add a necessary ingredient to the indictment of the typical process in which labour is bought and sold under capitalism, a critic might ally with republican theorists, and characterize this relationship as one of domination, taking advantage of power in a way that is disrespectful. Since the process of buying and selling itself is under indictment, the target of this charge must be kept distinct from the hierarchical workplace relations that are the typical outcome. (In any case, these relations do not seem typically to be disrespectful exercises of power.)21 Suppose that the alleged disrespectful exercise of power is a capitalist process of buying labour with no inequality of bargaining power. A valid charge of disrespect would seem misdirected at the latter process, in which each participant offers what is useful to the other in response to the usefulness of what the other offers. Wouldn’t it in any case be better if there were much less instrumentalization in the sense of services, goods, and means to purchase them typically being provided for personal gain? Even this relatively mild claim is misguided. If much less instrumentalization, in this sense, is to be reconciled with economic interdependence, there must be considerable broadening of the circle of knowledge of others’ wants and circumstances, attentiveness to others’ lives, and non-contractual giving, so that people effectively provide for others’ needs. Some might find this enriching but others would find it an intrusive addition to their current circle of personal ties. In his celebration of the virtues of ‘the propensity to truck, barter, and exchange one thing for another’,22 Adam Smith notes that it is a way of successfully gaining help from a great many people by offering help, transcending the necessarily narrow circle of genuine friendship, without seeking strangers’ benevolent attention to one’s needs. This motivation of aid by gain seems an excellent



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basis for widespread economic interdependence, in which people sustain reciprocity while minding their own business. IN SEARCH OF MORAL RELEVANCE I have argued that deriving a benefit from superior bargaining power is a typical feature of the employer-employee relationship in a capitalist society, yielding gains dispersed among non-workers according to bargaining advantage. But is economic activity in which someone derives a benefit from superior bargaining power wrong? Unequal bargaining power is not, I will argue, morally relevant in this way. Given the inadequacies of other construals of economic exploitation, it might, then, seem that the charge that workers are typically exploited has no independent relevance in the moral criticism of capitalist societies. But, I will go on to argue, the exploitation of typical workers matters, because the typical inequality of bargaining power in capitalist employment is morally relevant in contexts of political justification. Once it is distinguished from other interactions, the wrongness of deriving a benefit from others’ inferior bargaining power becomes far from obvious, a charge requiring further justification in a successful moral indictment. In employing help to weed their lawns, busy professionals, including left-wing professors, are typically loyal to Alfred Marshall’s understanding of fairness in wages: every person ‘who is up to the usual standard of efficiency in his trade in his own neighborhood ought to be paid for his work at the usual rate for his trade and neighborhood … and should be paid this rate ungrudgingly’.23 Even if they pay at the high end of the local rates, they may be aware that they pay less because of superior bargaining power: there are special competitive pressures on people seeking such unskilled jobs in their neighbourhoods; the prevailing wage for unskilled yard work is determined by the superior bargaining power of a few landscaping firms. Have they done wrong? Surely, this is not obvious. Rescue cases in which the role of superior bargaining power is especially clear are sometimes used to establish that benefiting from time pressure on the other party to a bargain, due to urgent need, is objectionable. In these cases, people in imminent dire physical peril, who are in no position to hold out for a better deal, accept an offer to rescue reflecting their bargaining disadvantage in a transaction in which the rescuer helps on balance but, it is claimed, does wrong. (As the lost wanderer in the desert starts to die of thirst, the man on a camel emerges from the shimmering haze, exchanging rescue from death for a promise to go with him to his oasis, just as impenetrably remote, and clean his toilets and make his beds for the rest of the rescued wanderer’s life.)24 However, the compelling cases involve exorbitant benefit from doing what

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duty requires, imposing an extremely heavy burden which corresponds to no remotely comparable cost of rescue. Such cases seem to involve failures to live up to special duties of beneficence, or, in any case, callousness that is far from typical of the labour market in advanced capitalist societies. Suppose we subtract these features by developing an example that Alan Wertheimer explored.25 Someone invests money, time and energy in cruising snowy highways with a tow truck, offering to tow cars stuck in snow. Given his special initiative and investment, one would hardly claim that he has a duty to tow for free those who can afford his services at the rate he charges. If he has reason to believe that drivers stuck in snow cannot afford his standard rate and will be miserable if not towed, he gives them a corresponding discount. His standard charge is not a heavy burden, utterly out of proportion to his costs. But he does benefit from the inferior bargaining power of people under shivery pressure to make a deal. Unlike most people he does not mind cold at all, so he operates without significant competition in his region of Alaska. Assuming that his ways of life and making a living do not violate moral requirements of non-selfishness, he does not seem to do wrong in retaining the consequent benefits of unequal bargaining power. Even if it is not wrong, is benefiting from superior bargaining power objectionable conduct in some other way, perhaps because it is an apt source of shame? Certainly, unlike many other forms of self-advancement, selfadvancement deriving from others’ inferior bargaining power is nothing to be proud of. But neither is it something to be ashamed of, if one has not created the weakness at the source of the inferiority. Granted, for reasons presented before, bargaining inferiority will be characteristic of those who must seek work in the lower echelons of capitalist employment. So those with inferior bargaining power will tend to be those with more burdensome unmet needs. Special concern for those with greater unmet needs is an important aspect of our duty to act unselfishly. But unselfishness is a general requirement of morality, independent of market relations. People with painful medical conditions which they cannot alleviate from their own resources deserve our unselfish concern to the same degree regardless of whether they suffer from inferior bargaining power. THE POLITICAL RELEVANCE OF UNEQUAL BARGAINING POWER Nonetheless, the derivation of benefits from superior bargaining power is relevant to moral criticism in another way. The difference between this form of self-advancement and cooperative self-advancement increases the extent to which laws should intervene in capitalism to help the worse-off at cost



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to the better-off. Unequal bargaining power has this independent political importance in at least three complementary moral and political perspectives: impartial political concern, the pursuit of laws that can be self-respectfully willingly supported by all, and the aspiration to a way of life that is worthy of love.26 In political choices, one should seek to promote the general welfare, showing impartial concern. This endeavour must be impartial, since otherwise people are forced to contribute to an endeavour in which they count for less than others. It does not lead to an intrusive nanny state because concern involves an interest in how people advance themselves, not just in the goods that they consume. For example, an exclusive concern for needs for material possessions would neglect the fundamentally important need for self-reliance, that is, for pursuing goals with which one identifies, chosen through one’s own assessment of one’s interests, talent and temperament, through one’s own effort and risk-taking. Not to care whether someone gets ahead through her own activity and aspiration or through mere receipt of goods shows contempt for her, not concern. But self-reliance is hardly the whole story of the way of pursuing goals that merits concern. In self-advancement, people almost invariably depend on others. Yet someone’s dependent advancement is not made valuable by the mere fact that he relies on his own energy and initiative to obtain others’ contributions. Fraudsters use their own energy and intelligence to obtain others’ contributions to their own goals. Smith’s praise of the propensity to truck, barter, and exchange one thing for another points to a valuable reconciliation of self-reliance and dependence. To the extent to which one benefits from help that another provides because of the helpfulness to her of what one does in exchange, one’s selfadvancement is combined with dependence in an activity that is worthwhile. In contrast, suppose that someone’s gains from a commercial interaction are due, at least in part, to the other’s inferior ability to get help from the interaction through the helpfulness of what he provides. These are gains from his inferior bargaining power, making his limited capability to make use of the bargaining relation more burdensome than it would otherwise be. This way of getting ahead is not a component of well-being. All else being equal, its elimination will make it easier for others to get ahead self-reliantly. This status is reflected in the observation that taking advantage of superior bargaining power is nothing to be proud of. When government intervention would transfer gains from commerce to those whose lives would go better, all else being equal, if they had more material goods, the inhibition of valuable forms of self-reliant self-advancement must be balanced against those material gains, from a perspective of impartial concern. This constraint might, in principle, confine redistribution to poverty relief. In the idyll of individual enterprise evoked by the rhetoric

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of conservative politicians and the writings of libertarian philosophers, material inequality is due to the greater skill and initiative of individuals, nurtured by their parents, and to their greater luck, in independent self-improvement or cooperative commerce in which no one benefits from superior bargaining power. In such an economy, redistribution would make success in achieving worthwhile goals less dependent on one’s efforts to advance oneself in worthwhile ways. From a perspective of impartial political concern, these losses in redistribution could be justified as a means of enabling everyone to enjoyably pursue some personal goals with which she identifies, beyond mere survival and without confinement to the margins of social life. But it is by no means clear that impartial concern would justify further inhibition of the valuable forms of self-advancement characterizing this idyll, reminiscent of the economies of small farms and small businesses among some white people in non-slave states in early nineteenth-century America. The unmasking of unequal bargaining power removes this obstacle to redistribution in a modern capitalist economy, by showing that taxation and regulation can promote a form of self-reliant self-advancement that merits concern at cost to a form that does not. Valuable self-advancement is not inhibited when gains from self-reliant cooperative self-advancement are promoted through regulation and transfer that reduces others’ gains from superior bargaining power. These measures might directly rebalance the bargaining process, for example, through protection of union organizing. But virtually all uses of taxation from the best-off, within the extensive margin of their gains from bargaining superiority, that help workers, would-be workers, and their families promote cooperative self-advancement, the valuable way of getting ahead. National health insurance, extended unemployment benefits and a safety net for the unemployed reduce the time pressure that typically puts job seekers at a disadvantage in the labour market. Improved access to education gives people the enhanced bargaining resources of skilled workers using initiative and teamwork. Increased minimum wages enhance bargaining power as well, by providing an incentive for employers to favour higher-value-added forms of work that require loyalty and low turnover. Sheer redistribution through tax and transfer promotes wealth that reduces the risks of seeking better employment. This framework of impartial concern has been perfectionist, relying on more-than-political evaluations of ways of living. But if, following Rawls, one takes social cooperation characterized by reciprocity to be a liberal political goal,27 the same contrasting judgements of ways of benefiting from exchange result. The reduction of burdens of inferior bargaining power would, then, be a commitment of anyone who regards herself as a free and equal citizen and choses standards for judging laws behind a veil of ignorance



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of her specific resources and goals. This outcome is reflected in Rawls’ inclusion of monopoly power among the inequalities that justice as fairness seeks to reduce.28 One should also seek a system of laws that every citizen could willingly and self-respectfully support in its basic features, in light of knowledge of its important tendencies, upholding it rather than merely acquiescing to it. This is, on its own, a morally important criterion for political choice. It also enriches judgements of what impartially promotes well-being since subordination to laws that one could not self-respectfully support is a serious loss. If a safety net protects against severe deprivation, civil and political liberties are upheld, people advance themselves through work, exchange and voluntary transfer, and public endeavours that benefit all (road building and maintenance, public elementary education and the like) are impartially provided and funded, could a capitalist economic system that is otherwise unconstrained by laws be self-respectfully supported by all? It is hard to see why not, until one considers the pervasive burdens of inferior bargaining power and the gains from superior bargaining power that I have described. In upholding such an exploitative system, workers would uphold laws governing selfadvancement that reduce their capacity to get ahead by helping others in exchange for help. Suppose there is an alternative that increases their capacity or reduces the burdensomeness of their lesser capacity, and only reduces others’ income within the extensive margin of gains from workers’ difficulties in self-reliantly getting ahead through cooperative exchange. Workers’ support for the status quo would, then, be incompatible with self-respect, with their self-regard as free and equal persons. They would, as it were, volunteer to be stifled in striving to get ahead through self-reliant cooperation when their liberation would impose no similar costs on others. In contrast, those who are not workers could respect themselves in supporting gradual change to a system in which they rely more exclusively on cooperative selfadvancement, letting go of self-advancement that depends on others’ burdens of inferior bargaining power. They self-respectfully let go of what was nothing to be proud of. Here is one further basis for moral assessment of basic institutions. One ought to promote institutions sustaining a way of life that is worthy of love. By ‘a way of life’, I mean a set of activities, attitudes, and norms characteristic of a society, which each rationally expects others to have. By ‘love’, I mean a commitment to nurture the way of life so far as it is present, to promote it through action and advocacy so far as it is not. Would a modern economic way of life that is worthy of love include, as a typical feature, the derivation of gains from superior bargaining power? It would to some extent, on a plausible assessment of alternative economic systems.

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Compared with coordination through a central plan, competition among capitalist firms is a vastly superior basis for efficiency and innovation in production and the satisfaction of consumers’ desires, offering material advantages that are preferable to all when redistributed in ways that are compatible with these virtues. When coordination of production and distribution is dominated by the state, rather than markets, long-term stability requires a one-party regime that inevitably restricts political opposition in ways that generate fear and ignorance, in a political life that is not worthy of love. In principle, there is the alternative of a market economy in which each firm is owned and controlled by its workers. But pervasive workers’ ownership and control of their firms produces excessive unemployment by combining the market discipline of business failure with the reduction of capitalist investors’ incentives to expand production. The choice of capitalism on account of these distinctive virtues entails acceptance, to some extent, of unequal bargaining power. The restless pursuit of cheaper labour inputs, qualified by substantial ‘efficiency wages’ at the higher echelons, is inherent in capitalist competition. Political measures can reduce the extent of workers’ consequent inferiority in bargaining power. But at some point the reduction of net revenues affects propensities to invest in ways that reduce workers’ well-being. Still, the acceptance to some extent of an inequality is not the same as unconcern with its extent. A modern way of economic life that is worthy of love must supplement capitalist economic activity and norms with political activities and norms which do not seek to eliminate unequal bargaining power, but seek to mitigate its extent and its impact on the lives of fellow members of one’s society. Each would see burdens of inferior bargaining power as burdens that she seeks to relieve by political intervention (under the rule of law, appropriately impartial and respectful of civil and political liberties), up to the point at which further intervention would not be worthwhile from the standpoint of those who bear the burdens. In this politico-economic way of life, each seeks to advance himself by helping others, when his economic and political choices are jointly considered. Each has the attitudes towards self-advancement that she wants others to have and that others want her to have. In his political and economic choices, each is motivated by the desire for this reconciliation. Despite its importance in the moral justification of laws, the lack of value of exploitative self-advancement does not make it wrong outside of the realm of political choice to choose to derive benefits from another’s inferior bargaining power. In non-political choices, we are not bound by a duty of impartial concern, do not impose what can only be justified by the possibility of self-respectful allegiance, and do not seek to shape a way of life. This does not mean that employers do no wrong so long as they do not use force or



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fraud to gain acquiescence to terms of employment. We ought to be disposed to help others to an extent that does not pose a significant risk of making our lives worse.29 Because of the impact of their terms of employment on others’ lives, employers should be on the lookout for ways of making their terms of employment better that do not require solicitude that poses a significant risk of worsening their own lives. However, among people determining the hiring policies of a capitalist firm, a commitment to avoid gains from superior bargaining power would exceed the proviso of non-self-worsening. Such abstinence would be a recipe for disastrously losing out to competing firms, by creating higher costs and lower net revenue and reducing incentives to creditors and investors to fuel innovation and expansion. In such unilateral avoidance of exploitative gains, the firm loses while its shrinkage exposes would-be employees to exploitation by competitors. Still, in developed countries, sweatshop terms can violate the duty of concern, since the comparative advantage of these countries is in higher-value-added work involving no such burdens and competition by such burdening employers is constrained by effective labour laws. A focus on the wrongs of individual capitalist firms running sweatshops can make it seem that a duty specific to the transaction of labour contracts is in play. In fact, a general duty of concern has been violated on account of a specific economic and political situation. In contrast to capitalist firms, many individuals face no dire consequences from much higher payment than the norm in their occasional purchases of others’ labour. But, like firms and their managers, they are not bound by the duties governing political choice in these purchases. Moreover, an individual in a capitalist economy who embraces a general personal policy of unilaterally giving up benefits from others’ inferior bargaining power will, typically, worsen her life, exceeding the dictates of beneficence. Individuals will, in general, best discharge their duty of concern by contributing some of their benefits from superior bargaining power to good causes directed at relieving especially heavy burdens of neediness. One exception is labour transactions with very needy people who will work hard for little at the going wage. Giving them more than the going wage is doubly attractive from a standpoint of benevolent concern, helping people to meet their needs self-reliantly and directing help at those who are especially needy. (Marshall himself accepts that ungrudging payment of the going wage is not enough in ‘cases such as that of needlewomen, where the customary wages are too low to support a healthy life’.30) But these are not typical sellers of labour in developed countries, and what makes retention of benefit from their desperation wrong is a distinctive opportunity for kindness, not a distinctive feature of the buying and selling of their labour. As in the judgement of agents of capitalist firms, the wrongness of successful purchase of services in special cases is a bad guide to typical non-political duties, and the typical moral acceptability of

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benefit from superior bargaining power in one’s private transactions is a bad guide to the morality of political choice. Robert Nozick’s arguments for libertarianism in Anarchy, State and Utopia have distorted thinking about justice, among non-libertarians as well as libertarians, by promoting the expectation that judgements of what individuals may do to one another in non-political choices are a good guide to what governments may do. Marxism distorted thinking about justice by promoting disdain for capitalist commerce. Removing these distortions is essential to the proper use of exploitation as a category of moral criticism. Economic systems move towards justice by shrinking the prevalence of exploitation in favour of the commercial self-advancement of which people are rightly proud. NOTES 1. See Edward N. Wolff, ‘Recent trends in household wealth in the United States: Rising debt and the middle-class squeeze – an update to 2007’, Working Paper No. 589 (Annandale-on-Hudson: Levy Economics Institute of Bard College, 2010), 43, 46, 48; Wolff, ‘The Asset Price Meltdown and the Wealth of the Middle Class’, Working Paper 18559 (Cambridge: National Bureau of Economic Research, 2012), 51, 52. 2. Marshall, Principles of Economics (London: MacMillan, 1920), 471. 3. See Joseph Stiglitz, Whither Socialism? (Cambridge: MIT Press, 1994), 35–36. 4. Alan Manning, Monopsony in Motion (Princeton: Princeton University Press, 2003), 4. 5. Ibid., 271. 6. Ibid., 281. 7. See U.S. Department of Labour, Bureau of Labour Statistics, ‘Job Openings and Labour Turnover Survey: Highlights, April, 2016’, accessed 8 July, 2016, http:// www.bls.gov/web/jolts/jlt_labstatgraphs.pdf. 8. Bureau of Labour Statistics, ‘The Employment Situation, June 2016’, accessed 8 July, 2016, http://www.bls.gov/news.release/pdf/empsit.pdf. 9. As Janos Kornai, a leading analyst of the advantages of capitalism over central planning, emphasizes in Dynamism, Rivalry and the Surplus Economy (Oxford: Oxford University Press, 2014), especially 88–105. 10. J.E. Meade emphasizes such departures from ‘the fairyland of perfect competition’ and the scope they provide for superior bargaining power of employers in WageFixing (London: Allen and Unwin, 1982), 47–48. 11. For a more detailed account of this source of high executive salaries in the United States, with further references, see Thomas Piketty, Capital in the Twenty-First Century (Cambridge: Harvard University Press, 2014), 330–35. 12. The classic account is Carl Shapiro and Joseph Stiglitz, ‘Equilibrium Unemployment as a Worker Discipline Device’, American Economic Review 74/3 (1984): 433–44.



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13. One exceptional mention occurs towards the end of G.A. Cohen’s ‘The Labour Theory of Value and the Concept of Exploitation’, in a section added in his collection, History, Labour, and Freedom (Oxford: Oxford University Press, 1988), with no parallel in the original article. He writes that the charge that capitalists exploit workers would properly concern the bargaining power arising from their control over the means of production (234). But he immediately adds that such condemnation should centre on the illegitimacy of the ownership itself, regarded as a kind of theft, not on the labour relationship as such. In Exploitation (Princeton: Princeton University Press, 1996), 217, 230–36, 286–89, Alan Wertheimer, the most important recent theorist of economic exploitation not centrally concerned with Marxist themes, argues that benefits from unequal bargaining power constitute exploitation and are prima facie wrong in ‘a certain range of cases’, but he does not include the buying and selling of labour in this range. In Globalizing Justice (Oxford: Oxford University Press, 2010), 60–65, I argued that benefit from the inferior bargaining power of workers in transnational manufacturing is prima facie wrong, an argument that might have been, but was not, extended to typical labour relations in developed countries. For reasons that will emerge in the next section, I now think that it is, in any case, a mistake to locate the moral import of workers’ inferior bargaining power in the wrongness of individual transactions. 14. See John Roemer, ‘Should Marxists Be Interested in Exploitation?’, Philosophy & Public Affairs 14 (1985): 41; Wertheimer, Exploitation, 217; Nicholas Vrousalis, ‘Exploitation, Vulnerability and Social Domination’, Philosophy & Public Affairs 41 (2013): 155. 15. The culminating theoretical endeavour of Capital, volume I is the argument that an inevitable long-term bias towards labour-saving innovations in capitalist production continually generates a reserve army of the unemployed, which puts typical would-be workers at a disadvantage in the labour market. In the perfect competitive market, there would be no such disadvantage. In volume III, a central endeavour is to solve a problem that has stumped all prior economists, explaining the tendency of the rate of profit to decline. The explanation depends on the capacity of workers to maintain their share of productivity gains, an assumption with no support in the perfect competitive market. When a comrade in the International Working Men’s Association argues that trade union militancy cannot benefit workers because market forces are irresistible, Marx argues that this is false, in the summary of his economic theory published as Value, Price and Profit. 16. See Holmstrom, ‘Exploitation’, Canadian Journal of Philosophy 7 (1977): 364. 17. For example, R.G. Peffer, Marxism, Morality and Social Justice (Princeton: Princeton University Press, 1990), 142–45; Jeffrey Reiman, ‘Exploitation, Force and the Moral Assessment of Capitalism’, Philosophy & Public Affairs 16 (1987): 3–41. 18. See, for example, Roemer, ‘Should Marxists Be Interested in Exploitation?’: 52–53. 19. See Allen Wood, ‘Exploitation’, Social Philosophy and Policy 12 (1995): 136–58, especially 151–53. 20. For example, in his sympathetic account of Marx on exploitation, Allen Buchanan says that ‘to exploit someone is to utilize him or her as one would a tool

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or natural resource’ (Marx and Justice (Totowa: Rowman and Littlefield, 1982), 38). He does add that in exploitation this utilization is harmful. But he emphasizes that low wages or bad working conditions need not figure in exploitation (43–44). Using someone as one would a tool or natural resource seems, itself, to be the crucial harm (see 39). 21. Capitalist workplace subordination does not seem disrespectful if its nature and extent are functional, no one is forced to serve in the firm and anyone can quit at will, subordinates are treated with basic politeness by superiors, and the milieu of the firm does not make it rational for the subordinate to be servile, to bow and scrape, to be reluctant to look superiors in the eye – Philip Pettit’s ‘eyeball test’. See Pettit, On the People’s Terms (Cambridge: Cambridge University Press, 2012), 84–7. These qualifications are met by typical workplace relations in many capitalist societies, where servile behaviour, bowing and scraping, or failing to look the boss in the eye is not common or valued, and may even make the boss wonder if the employee is being sarcastic or suffers from a mental disorder. 22. The Wealth of Nations (New York: Modern Library, 2000), Book I, Chapter II, 14. 23. ‘A Fair Rate of Wages’ (1887), Memorials of Alfred Marshall (London: MacMillan, 1925), 213. 24. See Miller, Globalizing Justice, 62, and Vrousalis, ‘Exploitation, Vulnerability and Social Domination’, 148. 25. See Wertheimer, Exploitation, 208, 218–19. 26. I lack the space in this chapter to establish the central importance of these perspectives in the political choices of a conscientious citizen. I try to do so in a work in progress, The Ethics of Social Democracy. I hope that the moral standing of these perspectives will, at least, be highly plausible once they are described. If they can be used to justify the widespread inclination to regard unequal bargaining power as morally troubling and to take these qualms to be, in some way, relevant to political judgement, then these moral foundations are strengthened, in turn. 27. See, for example, Political Liberalism (New York: Columbia University Press, 1993), 15–17; ‘The Idea of Public Reason Revisited’ (1997), Collected Papers (Cambridge: Harvard University Press, 1999), 578–79. 28. See Justice as Fairness (Cambridge: Harvard University Press, 2001), 131. 29. Again, I hope that this principle is plausible on the face of it. I argue for it in detail in ‘Beneficence, Duty and Distance’, Philosophy & Public Affairs 32 (2004): 257–83 and Globalizing Justice, chapter 1. 30. ‘A Fair Rate of Wages’, 213.

Chapter 2

Sweatshop Labour as Global Structural Exploitation Maeve McKeown

The global garment industry is almost synonymous with exploitation in the contemporary world.1 ‘Sweatshop labour’ – the production of cheap clothes under poor working conditions, including arbitrary discipline and restrictions on collective organizing, for extremely low wages – seems intuitively to be wrongfully exploitative.2 However, not everyone agrees. Some libertarian philosophers and economists persuasively defend sweatshop labour, arguing that workers actively seek and benefit from sweatshop jobs. The recent philosophical literature has attempted to rebut the libertarian case by applying theories of ‘transactional exploitation’ (unfair transactions between two individuals) to sweatshop labour. I argue, however, that these transactional accounts fail on their own terms. Moreover, these accounts do not consider why the sweatshop labour force is predominantly made up of Third World and racialized women and why that is problematic.3 I argue that sweatshop labour is an example of structural exploitation, by drawing on, but significantly reformulating, Marxist insights. Recent political theory has abandoned the Marxist view of exploitation as essentially structural. For Marxists, exploitation is embedded in the capitalist economy and it is a forced transfer of surplus value from the proletariat to the capitalist class. However, both transactional and Marxist accounts fail to acknowledge that women make up 70–90% of the sweatshop workforce, a fact that points to the structural and group-based nature of exploitation in sweatshops.4 Structural exploitation, in my view, is the forced transfer of the productive powers of groups positioned as socially inferior to the advantage of groups positioned as socially superior.5 This is an intersectional definition of exploitation: it recognises the class basis of structural exploitation, but also that certain social groups are structurally exploited, in this case along the axes of gender and ‘race’. It puts force at the centre of the definition, recognizing 35

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the background conditions that generate the eagerness for sweatshop jobs. It claims that what is lost through exploitation are the productive powers of exploited groups. This definition derives from Iris Marion Young’s early thoughts on exploitation, but where Young focused on the domestic context, arguably sweatshop labour is an example of structural exploitation on a global scale.6 Following Young, I argue that sweatshop labour is unjust because structural exploitation is a form of oppression, and it enables domination.7 The oppression and domination involved in sweatshop labour can be mitigated to some extent by gender-based union organization. THE LIBERTARIAN CASE FOR SWEATSHOPS Defenders of sweatshops argue that sweatshops bring jobs, prosperity, and growth to developing countries.8 Sweatshop labour is often highly paid in comparison to available alternatives and workers eagerly compete for these jobs. A sophisticated libertarian analysis uses these empirical facts to claim that there is nothing wrong with sweatshop labour; in fact, it is a good thing. Matt Zwolinski’s defence of sweatshop labour hinges on the fact that individuals choose to work in sweatshops. Their choice to do so is morally relevant because it is either an exercise of their autonomy or expresses their preferences.9 The choice to work in a sweatshop is an exercise of an individual’s autonomy because it involves furthering one’s own personal projects, including survival, parental or spousal obligations. As such, it is worthy of respect. Passing laws that prevent individuals entering into employment contracts with sweatshops would violate their autonomy. Even if the individual chooses this job under conditions of coercion, where there are few options, it is still an expression of their preferences. Preventing the individual from taking the job would be to deny their preference satisfaction and thus would be an instance of harm. Furthermore, sweatshop labour is ‘mutually beneficial’. If we consider harm to occur when one’s interests are set back, then no harm occurs in sweatshop labour; both parties gain something.10 Workers gain employment and owners gain financially. So, Zwolinski asks, in what way can a transaction be mutually beneficial and wrongfully exploitative? He suggests this could occur when the social surplus generated by the transaction is unfairly divided between the two parties, so it is not as beneficial to workers as it ought to be. However, corporations make workers better off than they used to be. Why is this wrong when an alternative is for corporations not to provide any jobs at all? If multinational or transnational corporations (hereafter TNCs) did not establish sweatshops in developing countries, then the workers would acquire no benefits: ‘How, then, can it be permissible to neglect workers in the developing



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world, but impermissible to exploit them, when exploitation is better for both parties … ?’11 This is the ‘non-worseness claim’ – if a transaction does not make either party worse off, it is preferable to no transaction at all. Sweatshop labour only becomes wrongfully exploitative, in Zwolinski’s view, when the workers experience psychological or physical abuse. Wrongful exploitation occurs when rights violations occur.12 Where there are no rights violations, there is no wrongful exploitation. However, laws exist in all countries to protect workers qua workers, or simply as individuals, from human rights violations. The disagreement between libertarians and those on the left hinges on whether sweatshop labour is wrongfully exploitative when there are no human rights violations. Is there anything wrong with sweatshop labour minus human rights violations, where only the lesser evils of long hours, poor wages, arbitrary discipline, and restrictions on organizing are involved? TRANSACTIONAL ACCOUNTS There has been resistance to the libertarian case for sweatshops from transactional accounts of exploitation. There are two main transactional accounts in the contemporary literature: either exploitation involves one agent unfairly taking advantage of another agent, or exploitation involves one agent taking advantage of another agent in a degrading way (using a person as a means to an end).13 In this section, I address the transactional accounts of Chris Meyers (who takes the first view) and Jeremy Snyder (who takes the second view) and argue that they do not successfully rebut the libertarian case. Meyers argues that the libertarian case rests on three related claims.14 First, it is never wrong to benefit someone (unless they are legally entitled to more). Second, an individual cannot be wronged if they have consented to the treatment with a reasonable amount of information and are not coerced. Third, it is not wrong to provide an extra option to an individual, provided one has not limited her options or is responsible for the overall option set. Meyers seeks to show that a transaction can be (a) mutually beneficial, (b) consensual, and (c) fulfils the preferences of the exploited, and still count as wrongful. He calls such transactions ‘wrongful beneficence’. Meyers posits a counter-example to disprove the libertarian case: ‘The Desert Exploiter’.15 Carole has been stranded in the desert for two days after her car broke down. She has not seen another car the whole time and is running out of water. Then Jason drives down the road. He offers to drive her to the next town on the condition that Carole give him her entire net worth, the title to her house and car, and half her earnings for the next ten years.16 Meyers argues that in making this offer Jason does not force or manipulate

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her, he has only added to her options, and Carole is grateful for being driven to town. According to Meyers, this example proves that a transaction can meet the three libertarian conditions and still be wrongful. Meyers’ counter-example, however, does not prove this, because the example of Jason and Carole does not involve a consensual transaction. It is wrong to argue that Carole consents because her consent is coerced. Meyers anticipates this objection and considers whether his example is analogous to an armed robber giving the choice between ‘your money or your life!’17 He dismisses the analogy, however, on the basis that the robber takes away an option, but Jason adds an option rather than taking away any previously existing options. However, adding an option does not render the exchange non-coercive. According to Joel Feinberg, when a person coerces someone they give the person the option of X or Y, but remove the option of the conjunction of X and Y.18 Carole can choose either to give all her money to Jason and not die, or to not give her money to Jason and die, but she cannot choose to not give her money to Jason and not die. Meyers has therefore not shown that the libertarian case is mistaken by way of a counter-example: Carole might have benefitted and preferred giving up her wealth to death, but she did not consent, she was coerced.19 Jeremy Snyder suggests a different approach. He accepts that workers in Third World countries are often eager for sweatshop jobs, but argues that the libertarian focus on the benefits of having a job gives ‘insufficient weight to the moral importance of the dehumanizing form that these jobs can take’.20 Unlike Meyers’ fairness approach to exploitation, Snyder takes a Kantian approach, locating the problem with exploitation in its disrespect for persons. From a Kantian perspective, Snyder argues that individuals have an imperfect duty of beneficence to meet others’ basic needs, as well as duties of non-interference. When we enter into specific relationships with others, however, this imperfect duty becomes a perfect duty. The length and intimacy of the relationship will determine the strength of the duty, so that personal relationships with spouses or children will generate greater demands to meet the needs of the other, compared to the lighter demands of an employer-employee relationship. In an employment relationship: ‘employers are required to cede as much of their benefit from the interaction to their employees as is reasonably possible toward the end of the employees achieving a decent minimum standard of living’.21 What counts as ‘reasonably possible’ depends on the nature of the relationship and to what extent B is dependent on A to have a particular need met.22 It also depends on ensuring that A does not cede benefits to B that sink A below the threshold for well-being required for flourishing; rather A only has to cede benefits that can be considered as ‘luxury’ or ‘excess’ and B only has to be brought up to a level of sufficiency for minimal flourishing. If A is



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living a life of luxury while B is experiencing basic needs deprivation, then A is engaging in ‘needs exploitation’. This Kantian approach responds to the libertarians’ ‘non-worseness claim’, the idea that a mutually beneficial transaction cannot be morally worse than no transaction at all. This is a consequentialist argument, which is rebutted by the Kantian claim that certain duties are incurred by entering into particular relationships with others.23 There is something particularly wrong in using someone with whom you are in a relationship as a means to an end. In the case of needs exploitation, this is using a person as a means to your end of living in luxury while they cannot meet their basic needs. A problem for this account is that large garment TNCs are far removed from the workers in sweatshops. The manufacture of these products is outsourced to independent factories. Sometimes there is no meaningful interaction between the TNCs and their subcontractors. Moreover, not everyone working in these supply chains is living in luxury; many employees in TNCs live at the level of a flourishing life, not a luxurious life, as do many of the staff more closely connected to sweatshop labourers, such as factory managers. Snyder acknowledges these two problems. In response to the problem that a lot of the people involved live flourishing lives, not luxurious lives, meaning that they are not engaged in needs exploitation, he argues that they have a different kind of responsibility to the sweatshop workers, such as a forward-looking ‘political responsibility’ as advocated by Young.24 This is a more general responsibility that individuals connected to structural injustice have to work collectively to overcome the injustice. This is an unsatisfactory response, however. If we argue that most members of TNCs merely bear political responsibility for sweatshop labour, it is not clear what role the stronger conception of a duty of beneficence plays in the argument. Why is it not enough to say, with Young, that all agents connected to structural injustice share political responsibility to change it? Snyder argues that the people really engaged in needs exploitation are the agents with the most influence over the company’s policies, such as the largest shareholders and board members of TNCs. The more powerful members of these companies benefit to the point of luxury, so ‘the demands of beneficence may be greater for those individuals’.25 However, while these members may profit the most from the exploitation of sweatshop workers, they are also the most far removed from the workers. They will never meet the workers, know their names, or engage in any kind of interaction with them. These agents may have the deepest pockets, but their relationship with the workers is not long lasting or intimate, which on Snyder’s account are the factors that determine the strength of the duty of beneficence. The fact that these agents have deep pockets is not the determining factor for needs exploitation; it is the depth of the relationship that matters.

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Moreover, it is not entirely clear who the beneficiaries of the duty of beneficence are. If the depth of the relationship determines the strength of the duty, so that spouses have a perfect duty of beneficence to meet the basic needs of each other, but the employer-employee relationship is less demanding, Snyder surmises, ‘In turn, part-time employment will tend to create lighter demands than full-time work in which all the employees’ basic needs are expected to be met through the relationship’.26 When we consider, however, that many sweatshop employees are on temporary or flexible contracts, then these employees will be entitled to have their needs met less than full-time employees, when arguably they are in a worse-off position.27 Many female workers are ‘home-workers’; that is, work is contracted out by factories or jobbers to women at home on a causal, non-committal basis.28 So these women are in an even less strong relationship with the factory and would seem to be excluded almost completely from this approach. The ‘needs exploitation’ account does not include the most vulnerable employees in the sweatshop supply chain; it only benefits those who are in a relatively better-off position – individuals with full-time, long-term contracts. It follows that the ‘needs exploitation’ approach creates the perverse incentive of increasing the number of part-time, casual, or home-based labourers in order to avoid incurring any duties towards the workers. It could theoretically lead to more exploitation of workers, not less. These are only two accounts in the contemporary literature regarding the wrongfulness of sweatshop labour, yet they are indicative in that they both claim that exploitation is transactional and involves ‘taking advantage’ of another agent. For Meyers, exploitation involves unfairness and for Snyder it involves degradation. I have focused on why these accounts fail on their own terms. The more pressing issue with these transactional accounts, however, is that a focus on whether transactions between two individuals constitutes taking unfair advantage, or whether it degrades the other person, does not bring us any closer to understanding what is wrong with sweatshop labour. Sweatshop labour involves transfers between groups. Moreover, certain social groups are specifically targeted: Third World and racialized women. Understanding the exploitative nature of sweatshop labour requires taking a structural perspective. What is wrong with sweatshop labour is not the particular transactions between particular employees and employers, but the structures that force particular social groups into these jobs in the first place. STRUCTURAL ACCOUNTS Zwolinski agrees that sweatshop labour is a structural phenomenon. He argues that structural exploitation is the fault of states.29 In the case of



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sweatshop labour, a TNC might engage in ‘rent-seeking’ by agreeing to open factories in a state, but only if the state will suppress trade unions. This would be a case of structural exploitation. Another would be if the state suppresses trade unions in anticipation of TNCs taking advantage of this situation. The problem with this sort of behaviour is that it is unfair.30 This account of structural exploitation, however, is lacking. Zwolinski argues that what generates the unfairness is an agreement between the state and a particular corporation, or that a state creates conditions that entice corporations to operate there. I would argue, however, that in these cases it is not the structure that is at fault, but the actions of specific agents, that is, particular states or corporations. When we talk about structural injustice, the issue is the background conditions, not the actions of particular agents. Structural injustice is the accumulated outcome of the actions of multiple agents acting independently of each other, and not with the intention of creating the particular injustice. The idea that the exploitation becomes structural when it is sanctioned by the state fails to capture what we mean by structural injustice, because this is a case of a state actively designing an injustice. Young argues that ‘structural injustice is a kind of moral wrong distinct from the wrongful action of an individual agent or the repressive policies of a state … [it] occurs as a consequence of many individuals and institutions acting to pursue their particular goals and interests, for the most part acting within the limits of accepted rules and norms’.31 Robert Mayer distinguishes between ‘discretionary’ and ‘structural’ exploitation. The Jason and Carole example is a clear case of discretionary exploitation; Jason can choose not to exploit Carole and has a prima facie obligation not to do so, considering that in this situation he has a positive duty to rescue her.32 Structural exploitation is different. In these cases, the exploiters have no choice but to exploit. In competitive global markets, corporations are forced to play by the rules of the game in order to stay competitive and to continue competing for business. If corporations refuse to do this, they will go bust, which is bad for them and the workers. This leads Mayer to argue that corporations in the capitalist economy are in ‘a kind of dirty-hands dilemma’.33 They face ‘the structural imperative of “exploit of fail”’.34 Mayer’s analysis brings us closer to understanding what is wrong with sweatshop labour; however, it is still problematic. Corporations are constrained by the rules of the capitalist game. Large TNCs, however, do have significant room to manoeuvre. The structure of global supply chains gives corporations at the top significant leeway; manufacture of products is broken down into component parts and subcontracted to various factories.35 Large TNCs can choose which locations and factories they subcontract their work to, meaning that they can choose factories with better or worse conditions. What is needed to encourage TNCs not to go straight for the cheapest supply

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of labour are industry-wide regulations to guarantee the wages and working conditions of sweatshop workers globally. Zwolinski rejects industry-wide regulations, however, on the grounds that it could crowd out businesses that cannot meet these standards but still provide jobs.36 Arguably, however, regulation is not as risky as Zwolinski would have us believe. An example is the Bangladesh Fire and Building Safety Accord adopted in 2013 after the Rana Plaza factory collapse, which killed over 1,100 people. This is a five-year legally binding accord, which commits TNCs to contributing to a fund for factory inspection and repair.37 It is overseen by a steering committee made up of retailers and trade unions, and is chaired by an independent representative from the International Labour Organisation (ILO).38 There has been resistance to the initiative. Some corporations – notably Walmart and Gap – refused to sign the Accord on the grounds that it will make them liable for human rights violations on foreign soil, and established a competing Alliance for Bangladesh Worker Safety, which is not legally binding and has no union involvement.39 Notably, however, 190 brands operating in Bangladesh have signed the Accord, suggesting that tightening regulations on factory conditions will not necessarily lead to corporations jumping ship. Government legislation also does not necessarily lead to capital flight. In their study of the Indonesian Textile, Footwear and Apparel industry from 1990 to 1996, Ann Harrison and Jason Scorse found that due to the combined efforts of minimum wage legislation and anti-sweatshop activism, real wages rose by 50%.40 However, this did not lead to a reduction in employment. In fact, exporting and foreign-owned plants ‘experienced very large increases in employment’.41 There may be empirical evidence to support the hypothesis of capital flight and job losses if stronger industry-wide regulations or government legislation are enforced on sweatshops. But there is also empirical evidence to the contrary. It is not sufficient, therefore, to ground philosophical arguments on the premise that if higher standards are enforced, then sweatshops will close and the workers harmed. This might happen in some cases, but not in others. There is more room to manoeuvre in terms of improving wages and working conditions, rather than simply eliminating human rights violations, than Mayer suggests. Both of these structural accounts, then, are lacking. Zwolinski’s position turns out not to be structural in the sense that it involves state or corporate agency in making deliberate decisions to foster sweatshops. Mayer’s position overstates the extent to which large corporations are bound by structural constraints. Neither position gets at the underlying structure that causes sweatshop labour and tells us what is wrong with it. Furthermore, neither account has acknowledged the group-based character of exploitation in sweatshops and the role of gender and ‘race’.



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SWEATSHOP LABOUR AS GLOBAL STRUCTURAL EXPLOITATION I want to suggest a different approach to thinking about sweatshop labour. Sweatshop labour is a form of global structural exploitation. This represents a shift in thinking about the concept of exploitation, from individual transactions to socio-economic structures, and emphasizes the significance of who is exploited, specific gendered and racialized social groups. What does it mean to say that exploitation is structural? On the orthodox Marxist position, exploitation is built-in to the capitalist economy. Capitalist exploitation functions as follows: capitalists own the means of production; workers are forced to sell their labour power to capitalists in order to earn sufficient money to meet their subsistence needs, but this only takes up part of the working day, the rest of the working day is spent doing surplus labour, which is extracted by the capitalist class making them profits. Exploitation refers to the appropriation of the surplus labour of the proletariat by capitalists. When reading Marx it is unclear whether exploitation is necessarily wrongful; it is simply a necessary feature of the capitalist economy. The orthodox Marxist definition of structural exploitation has been critiqued from a variety of angles. Analytical Marxists questioned its reliance on the controversial labour theory of value.42 Marxist feminists argue that it only theorises the exploitation of ‘productive’ labour (wage-labour) and ignores the reproductive labour of women in the home.43 Critical race theorists have argued that it ignores the question of why certain groups of people are exploited in certain kinds of jobs.44 Post-Fordist theorists argue that it cannot account for newer forms of labour including immaterial labour (the manipulation of information or emotions).45 Out of these critiques have emerged intersectional accounts of exploitation. Drawing on Young’s work in particular, I argue that an intersectional account of structural exploitation involves the forced transfer of the productive powers of groups positioned as socially inferior to the advantage of groups positioned as socially superior.46 This definition incorporates the concerns of feminist, critical race and post-Fordist theorists, and reveals a new way of thinking about why sweatshop labour is exploitative. The first aspect of structural exploitation is that it refers to a forced transfer between groups. In the Jason and Carole example, we saw an instance of force between two individuals. Jason, the coercer, tells Carole, the exploitee, that she can either give up her wealth to him or face death by dehydration and starvation in the desert. Jason determines the options available to Carole. Part of Marx’s project was to show how force operates in capitalism in a structural way.47 In sweatshop labour, it is not the case that a particular factory owner says to a particular worker, you must work here or face the alternatives

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of subsistence farming, domestic service, scavenging, sex work, or starvation.48 Rather, the worker is in a social position whereby these are the only available options. The individual worker’s decision to work in a sweatshop appears to be a free choice, but when we look at the class of labourers we see that they are forced either to sell their labour power to factory owners in order to earn money to survive, or to take up an even less attractive occupation. Reiman notes the similarities and differences between the transactional and structural accounts of force. First, in the transactional case, the options are either unacceptable or prohibitively costly.49 In the case of structural force, an individual’s social position determines a range of things they can do, ‘with options outside this range unacceptable or prohibitively costly’50: a sweatshop job or unpredictable and unreliable subsistence farming, begging, crime, sex work. Second, the transactional account involves an intentional exertion of force by one agent over another. Structural force is exerted by social structures, but these social structures are maintained through human behaviour. If all individuals involved became aware of their behaviour, they could alter the structures.51 Third, in the transactional case, the exploitee has ‘no real choice’; but in structural force there is an element of choice, or what Reiman calls ‘play’.52 Carole has no real choice but to submit to Jason’s demands. The group of workers, by contrast, is constrained to a certain range of options. Workers can exercise choice among the options, but so long as the group members end up distributed in roles determined by the structure we can say they are ‘forced into’ these situations, ‘even if they exercised some choice on the way’.53 The choice to work in a sweatshop appears to be a rational choice, and indeed it probably is; but that is only because the range of options has been forced upon the workers and the sweatshop job appears to be the best of a bad bunch. The journalist Jeremy Seabrook documents the journey of workers to Dhaka, Bangladesh, from the rural cities of Barisal and Murshidabad.54 People migrate to Dhaka primarily because of landlessness. Land is taken from peasant farmers either through (ostensibly) natural causes – flooding – or through human behaviour – land-grabbing or corrupt deals with local officials. Without any land to work on, they are forced to move to the big city to work to provide for themselves and their families. Here we can see Reiman’s point that human agency is involved. If land-grabbers stopped their behaviour, or the state dealt with corruption and built flood defences, these people would less likely be forced to move for sweatshop jobs. However, the relationship is different to the Jason and Carole example or ‘your money or your life’. These agents are not intentionally holding a gun to the head of the landless, nor offering a prohibitively costly option. The relationship is mediated and structural. Agents in higher social positions act in ways that are unavailable to the landless, and their actions further constrain the options of the landless. The result is that the landless



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have fewer options for action. Human agency is involved, then, but it is (a) the behaviour of groups and (b) not intentional force. Also, the landless have some ‘play’ within their resulting option set. Nonetheless, we can still say they are forced to move to the city and seek sweatshop jobs, in Reiman’s words, ‘in order to get a crack at living at all’.55 It might be objected that in this scenario we can blame the state, as Zwolinski would have it; but we would also have to blame the individuals and corporations who are land-grabbing. In any case, the fact that we might be able to blame particular agents for their behaviour does not speak to the fact that this is a structural relationship. The state and the land-grabbers are not directly interacting with the peasants; this is not a situation of intentional, transactional force. The relationship between the actions of agents in more advantaged social positions renders the more socially disadvantaged worse off with a smaller range of options. This is a structural, not an agential, relationship, and it affects social groups rather than individuals qua individuals. Transactional accounts of exploitation fail to appreciate what is exploitative about sweatshop labour, because they fail to recognise the structural force that underlies workers’ decisions to pursue these jobs.56 The wrongfulness of sweatshop labour cannot be explained by looking at transactions between particular factories and employees, but only by looking at the ways in which groups of labourers are forced to choose to work in these factories. The second aspect of this definition of structural exploitation is that workers are forced to transfer their ‘productive powers’. This refers to both an individual’s labour power and developmental power.57 Labour power is the ability to create use values, which can occur through traditional productive labour (the production of commodities in a factory, for example) or domestic labour (cleaning, preparing meals, etc.). Developmental power is the ability to pursue one’s own projects in the pursuit of developing oneself as an autonomous agent. This distinction comes from C.B. MacPherson who argues that exploited workers are giving up more than their labour power when labouring for capitalists, because the amount of time and energy spent on their labour reduces the available time and energy for pursuing their own projects.58 Capitalism extracts more than an individual’s labour power; it takes away their developmental power.59 Sweatshop labourers transfer their labour power and developmental power through the long hours of tedious, intensive labour, which allows capitalists to extract the surplus value they produce, and also diminishes the workers’ capacities for self-development. Seabrook interviewed garment workers in Dhaka, Bangladesh. He asked Mostara what were the ambitions and dreams of the women working in the factories, to which she responded, ‘What dreams? Their only dream is to go to their house, cook, eat and sleep. That is the dream of young women in Dhaka – they dream that their working day will at last end’.60

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It is not only the long and intensive labour that drains the developmental power of sweatshop workers, it is also damaging to health. Helen Wong, a Chinese immigrant garment worker in the United States, reported to Miriam Ching Yoon Louie that her friends experience sore hands, shoulder and back pains, haemorrhoids, allergies, and lung problems.61 Chronic lumbago is a problem for women in maquiladoras sitting on plastic folding chairs all day.62 Fatigue, headaches, kidney problems, and varicose veins are frequent health problems for garment workers.63 The third aspect of structural exploitation (an aspect that is missing from the Marxist account) is that it affects some social groups and not others. From a libertarian perspective, it is irrelevant what kinds of people perform various kinds of jobs. But this masks a deeper reality. Across Asia, Latin America, Africa, and in the ‘West’, Third World women constitute the vast majority of the sweatshop labour force.64 Why is that? Industrial manufacturing was confined almost exclusively to Western Europe, the United States, and Japan until the 1970s.65 Production then relocated to Third World countries, for at least four reasons. The first is ‘a practically inexhaustible reservoir of disposable labour’,66 which has arisen through ‘several centuries of uneven capitalist development’.67 With the shift in the nature of imperialism, a huge reservoir of labour, undereducated, unskilled, poor and willing to work for very low wages under poor conditions, emerged. Secondly, the process of production has become fragmented, so that the most basic processes require little skill.68 Thirdly, the development of transport and communications has facilitated the globalization of production processes.69 This facilitates ‘subcontracting’ of deskilled labour across various factories in dispersed geographical locations. Fourthly, there is a greater intensity of work among Third World workers because of few labour protections, enabling ‘greater control over the performance of the labour force’.70 This reservoir of cheap, low-skilled, disciplined labour explains why mass production, including garment work, moved to the Global South. But why is it mainly women who work in the garment sector? I suggest this is because within the global supply of cheap labour, women are the cheapest form of labour.71 The garment sector has relied on using the cheapest available labour since its inception. The development of the ready-made garment sector in the United States in the nineteenth century saw the employment of rural women, and when they became too expensive, of immigrant labour.72 In the 1970s, the cheapest labour source became Third World women.73 Why are women a cheaper source of labour? One reason could be the gender pay gap. The ILO has found some evidence of this in the garment sector, but it is variable across countries.74 A more compelling reason is that within the garment sector, women are clustered in the lowest ranking jobs.75 Women are given the jobs that ostensibly require the least skill. However, as Elson and Pearson argue



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this is, in fact, an illusion. The tasks of cutting and sewing are skilled labour; María Fernández-Kelly discovered this when she sought a maquiladora job as an undercover academic and was faced with a bewildering skills test of sewing pockets onto jeans – ‘the particulars of “unskilled” labour unfolded before my eyes’.76 This work is labelled as ‘unskilled’ because women learn these skills at home from their mothers and female relatives; the acquiring of these skills is invisible and privatized.77 Jobs that are seen as requiring technical knowledge or strength are generally considered as male jobs and are more highly remunerated.78 Women are also deemed to require lower wages because they are not seen as breadwinners and thus do not need a ‘familywage’.79 In short, women’s ‘secondary status’ in the labour market explains their lower wages.80 When asked why they prefer to employ women workers, however, factory bosses often refer to female attributes, rather than lower wages.81 Benería and Roldán asked employers ‘What advantages do you see in hiring women?’82 The answers in order of popularity were that women are more reliable, that is, they do not get drunk on the weekends like men and so are less likely to be absent on Mondays. Women do more careful manual work, having greater dexterity and patience in handling small parts. Women are more disciplined, able to sit for long periods of time without becoming restless. A small number said women are more productive. Finally, some mentioned that women are less troublesome and less likely to engage in trade union activities. As feminists have pointed out, these traits are learned through socialization into gender norms.83 However, the outcome of these learned behaviours and stereotypes about women is that, as Benería and Roldán argue, ‘gender has an impact on the conditions under which workers are incorporated into the labour process and these conditions, in turn, have an impact on gender’.84 Sweatshop labour preys upon gender stereotypes and constitutes them for new generations of women workers. There is also a racialized component. The fact that the Third World labour reserve has become available to capital is due to a history of racist colonial subjugation. Al Szymanski argues that capitalism continues to propagate racism in order to create a ‘caste-like job reservation structure’ whereby ethnic differences are used to antagonize relations within the working class, creating disorganization.85 While Szymanski was talking about this in the context of advanced capitalist societies, we can see this happening internationally, with Third World immigrants in developed countries, and the export of jobs to developing countries, portrayed as ‘them’ stealing ‘our’ jobs. Structural racism in the labour market also serves to ‘legitimate the usually degrading functions of a specific social group in the eyes of the hegemonic class’,86 so that the outsourcing of sweatshop work is deemed applicable for certain kinds of workers over others.

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We also need to think about the intersection of ‘race’ and gender, however. Elson and Pearson quoted from a Malaysian investment brochure in their oft-cited 1981 article ‘Nimble Fingers’: ‘The manual dexterity of the oriental female is famous the world over. Her hands are small and she works fast with extreme care. Who, therefore, could be better qualified by nature and inheritance to contribute to the efficiency of a bench-assembly production line than the oriental girl (emphasis added)’.87 Even though this is over three decades old, such racialized gender stereotypes continue to predominate in the industry. Chakravarty looks at how the idea of ‘Oriental docility’ is used in the Indian garment industry in explaining the submissiveness of female Indian garment workers. She found that the lack of union organizing among women is not due to this racist stereotype, but rather to strategic thinking: women were less likely to engage in trade unionism as ‘a strategy in order to secure jobs in an otherwise man’s world’ and because unions were more likely to represent the interests of qualified men with technical jobs, rather than women on temporary contracts with ‘unskilled’ jobs.88 Nevertheless, the result of the lack of organizing reinforces the stereotype. A lot of the literature on why Third World women occupy labour-intensive manufacturing jobs dates back to the 1980s. However, there is reason to believe this is still an accurate picture of how the garment industry works, and in fact, that the situation may have deteriorated further. The debt crisis in the mid-1980s led to structural adjustment policies in many Third World countries, which saw cutbacks in the public sector, including health and education.89 This has disproportionately affected women who have filled in the gaps. As Guy Standing argues, the reduction of state benefits has contributed to the increase of the ‘black economy’ and precarious jobs, and has reduced minimum wage restrictions. These changes have led employers to employ women over men, as women receive lower wages and have traditionally been employed in ‘flexible’ labour because of their socially constructed reproductive and caring responsibilities.90 The nature of global supply chains has changed over this period, with more women workers working in locally owned factories or informal workshops, rather than TNC-owned factories in export-processing zones.91 The implications are that women’s contributions to production have become invisible as part of the illegal economy. Women are employed informally through agents rather than by factories, making their situation more precarious. There are also increasing divisions within the sweatshop workforce along ethnic lines, with migrant workers within the Global South preferred employees, as they require even lower wages and have fewer protections.92 In sum, the global garment labour force is predominantly made up of Third World women. These workers are positioned in the contemporary global economy through a history of colonial subjugation, more recent neoliberal



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restructuring of financial and trade regimes with the concomitant informalization of jobs and undermining of the state, and racist and gendered stereotyping, to be forced to work in this sector. Sweatshop labour is a form of global structural exploitation because it involves the forced transfer of the productive powers of disadvantaged social groups (in this case Third World women) to advantaged social groups (better-off consumers, capitalists). The normative literature on sweatshop labour has failed to identify why it is exploitative by focusing on transactions between particular agents, thus not exposing the role of structural force (class), nor the role of gender and ‘race’ in shaping group-based practices of exploitation. So far I have provided a descriptive account of global structural exploitation. What, if anything, is ‘wrongful’ about this situation? The aforementioned theories of exploitation place the emphasis on unfairness. It is the unfair distribution of the fruits of labour that is considered to be unjust. If we take the Marxist structural account, however, it is not the unfairness in the distributions of productive labour that is the source of normative concern. Nancy Holstrom argues that ‘Marx thought exploitation an evil’ because ‘force, domination, unequal power and control are involved in exploitation both as preconditions and as consequences’.93 Distributive interpretations are missing the point, according to Holstrom, because even if workers received more money for their labour, the fundamental relationship of the forced transfer of surplus labour to capitalists would remain.94 My intersectional account of structural exploitation departs from the Marxist account in several ways, however. I have abandoned the use of surplus labour and focused instead on productive powers; I also highlight the ways in which certain social groups are exploited in certain occupations. On this intersectional view, sweatshop labour is exploitative and unjust. Young argues that injustice comes in two forms: oppression and domination.95 Oppression is the systematic inhibition of self-development. In the case of sweatshop labour, the forced transfer of the productive powers of Third World women systematically prevents their self-development. Domination is the systematic inhibition of self-determination. Structural exploitation in sweatshops allows TNCs to dominate workers by inhibiting collective organizing. The workers are structurally positioned to have very few options for alternative employment and so are restricted in their ability to resist the dictates of TNCs. The structural inhibition of self-development and self-determination renders sweatshop labour a form of global structural injustice. As Young puts it, ‘Structural injustice … exists when social processes put large groups of persons under systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time that these processes enable others to dominate or to have a wide range of opportunities for developing and exercising capacities available to them’.96

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Structural exploitation is not reducible to oppression or domination, however. As Holstrom argued, the forced transfer of productive labour (in the Marxist view), or productive powers (in my view), will remain as the basis of the capitalist economy; this is so even if reforms were to increase the scope for the self-development of workers, or if the ability of TNCs to dominate workers was reduced due to increased regulation. The forced transfer of the productive powers of groups positioned at the bottom of the social and economic hierarchy is what constitutes structural exploitation. However, this leaves an unanswered question: Is exploitation an injustice if there is no oppression and domination, or is it simply a technical term as some Marxists have argued? This is an important philosophical question and I would suggest the answer might lie in the concept of force: Could oppression be eliminated as long as the forced transfer of productive powers of socially disadvantaged groups remains? However, it is beyond the scope of this chapter to provide a satisfactory answer. I would suggest that in the contemporary global garment industry, there is significant oppression and domination with no sign of abating, and so for now the more pressing concern is not whether structural exploitation would be an injustice without oppression and domination (or if oppression cannot be eliminated, if it is reduced), but to show, the contralibertarian position, why it is unjust now. CONCLUSION The philosophical literature on sweatshop labour is disappointing. The libertarian defence of sweatshops emphasizes the choice of individuals to take these jobs and the benefits to the individual. The transactional rebuttals focus on why these transactions between individual workers and employers can count as exploitative even when they are freely chosen. These approaches are individual, agential, and apolitical. On my reading, by contrast, exploitation in sweatshops is group-based, structural, and political, in the sense that it requires collective action to be overcome. I have argued that we need to focus on the fact that sweatshop jobs are predominantly occupied by specific social groups: Third World and racialized women. We also need to understand the structural conditions that force these social groups into these jobs: gendered, racialized, and class-based socio-economic hierarchies. Focusing on the choices of disembodied, anonymous individuals to take these jobs without an analysis of the background conditions, means we are failing to see the group-based and structural character of exploitation in sweatshops. We also fail to see the specific character of structural exploitation itself, that is, the forced transfer of the productive powers from socially disadvantaged to socially advantaged groups.



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Socially disadvantaged groups will be different in different socio-historical contexts. A range of historical, political, economic, and social factors converge to position certain groups differently in the global economy and the outcomes are contingent.97 It is undeniable, however, that at the present moment, Third World women have become constructed as the optimum labour force for the lowest-rung jobs in sweatshops both because they are the cheapest source of labour and because of stereotypes about their natural suitability for this work. It might be argued that I have portrayed these women as unqualified victims. This is not the case. In my interpretation of sweatshop labour, there are measures that can be taken to mitigate the injustice: grass roots union organizing can reduce the domination of workers by corporations and increase opportunities for self-development. Garment workers repeatedly resist the domination of transnational capital. Ashok Kumar and Jack Mahoney document the success of worker agitation in Fruit of the Loom factories in Honduras in 2007. Union oranisers travelled to the United States to negotiate with top executives directly, securing an average salary of US $395 per month, compared to the Honduran minimum wage of US $245 per month. They also get free lunches and transportation to and from work (expenses that used to cost 20% of their salary).98 Their tactics of direct negotiation combined with student activism has been replicated with success by workers in a Honduran factory subcontracted by Nike in 2010 and a PT Kizone factory in Indonesia in 2013.99 In 2014, an estimated 30,000 workers at Nike and Adidas factories in China went on strike, an increase of one-third in strike action in China on the previous two years.100 Garment workers in Cambodia engaged in mass protest in January 2014. The government responded with a brutal crackdown and a ban on public gatherings of more than ten people.101 Cambodian workers responded with stay-at-home strikes.102 The restriction on collective organizing suggests that collective organizing was indeed having an effect on structural injustice. It is important not to glorify trade unionism, however. As several feminists note, traditional trade unionism can be insensitive to gender differentiation. Chakravarty found that Indian garment unions were more focused on the working conditions of permanent male employees than women in lower grades.103 Struggles that only deal with economic issues like pay and conditions will fail to address the particularities of women’s exploitation.104 As Mohanty argues, the sexism of trade unions has led women to form their own unions, which recognise their ‘common interests’ as ‘the potential bases of cross-national solidarity’.105 Collective organizing around gender and ethnicity enables self-development. Louie documents the collective organization of immigrant women workers in the United States, who have set up workers’ centres, ‘which enabled them both to resist the oppressions they face and to begin to fashion new ways to

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work, live, think, and create’.106 The workers’ centres allow these women to gain skills otherwise unavailable to them including learning English and becoming enfranchised citizens.107 Moreover, if workers are able to secure jobs through collective bargaining that provide living wages, decent working conditions and reasonable working hours, they will be able to pursue their own personal projects. Union organizing and better labour laws and enforcement can mitigate the domination of workers by corporations and increase opportunities for selfdevelopment. From this intersectional-structural perspective, however, the relationship of the forced transfer of productive powers from socially disadvantaged groups to socially advantaged groups will remain. The conditions that force people to choose sweatshop jobs need to change: massive poverty and inequality, unemployment. Union organizing is not a panacea, and looking to global institutions that enable global capitalism, such as the WTO, or to TNCs themselves and their programmes of corporate social responsibility, will not solve this structural problem.

NOTES 1. Thanks to Monique Deveaux and Vida Panitch for their insightful comments in drafting this chapter, and to participants in the ‘Ethics of Global Institutions’ workshop at Manchester University on 25 May, 2016 for their comments on an earlier draft. 2. Taken from Tara J. Radin and Martin Calkins, ‘The Struggle Against Sweatshops: Moving Toward Responsible Global Business’, Journal of Business Ethics 66 (2006): 263. 3. I follow Chandra Talpade Mohanty in using the term ‘Third World women’ and, from this point on, use it refer to ‘both women from the geographical Third World and immigrant and indigenous women of color in the United States and Western Europe’. See Mohanty, Feminism without Borders: Decolonizing Theory, Practicing Solidarity (USA: Duke University Press, 2003), 144. The term is not intended to be essentializing or to capture particular experiences, rather it captures the ‘common interests’ of workers similarly situated/marginalized in racialized and gendered labour markets. 4. Ruth Pearson, ‘Women’s Work, Nimble Fingers, and Women’s Mobility in the Global Economy’, in The International Handbook of Gender and Poverty: Concepts, Research, Policy, ed. Sylvia Chant (Cheltenham: Edward Elgar Publishing Ltd, 2012), 422. 5. I do not think this is the only possible conception of exploitation. In my view, exploitation is a ‘family resemblance’ concept. See Maeve McKeown, ‘Global Structural Exploitation: Towards an Intersectional Definition’, Global Justice: Theory Practice Rhetoric 9, no. 2 (2016). 6. Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), 48–53. In the Epilogue, she encourages us to think



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about what the five faces of oppression (exploitation, marginalization, powerlessness, cultural imperialism and violence) would look like in other contexts, including the transnational context. She suggests that the concept of exploitation may be more or less the same as in the domestic context, which is an insight I draw on here. 7. Young, Justice and the Politics of Difference, 37. 8 Paul Krugman, ‘In Praise of Cheap Labour’, Slate, 21 March, 1997. Nick Kristof, ‘Where Sweatshops are a Dream’, New York Times, 14 January, 2009. 9. Matt Zwolinski, ‘Sweatshops, Choice, and Exploitation’, Business Ethics Quarterly 17, no. 4 (2007): 689. 10. Zwolinski, ‘Sweatshops’, 705. 11. Matt Zwolinski, ‘Structural Exploitation’, Social Philosophy and Policy 29, no. 1 (2012): 162. 12. Zwolinski, ‘Sweatshops’, 711. 13. For the first view see Alan Wertheimer, Exploitation (Princeton: Princeton University Press, 1996); Robert E. Goodin, ‘Exploiting a Situation and Exploiting a Person’, in Modern Theories of Exploitation, ed. Andrew Reeve (London: Sage Publications, 1987). For the second see Ruth Sample, Exploitation: What It Is and Why It’s Wrong (Oxford: Rowman and Littlefield Publishers, 2003). 14. Chris Meyers, ‘Wrongful Beneficence: Exploitation and Third World Sweatshops’, Journal of Social Philosophy 35, no. 3 (2004): 323. 15. Chris Meyers, ‘Wrongful Beneficence’, 324–26. Meyers does not seek to make an analogy with sweatshop labour, rather his strategy is to show that the libertarian case rests on these three claims and prove them wrong through this counter example. 16. The better-known, but deeply problematic, version of the example is that Jason gives Carole the option of having anal sex with him, to which Carole ‘consents’. There is no way in which Carole’s consent to the sex act can be considered meaningful. She is experiencing extreme physical discomfort through dehydration and hunger in the desert, and she is experiencing psychological trauma – fear, anxiety, desperation – at the thought of her imminent death. She knows that her only alternative is death. This is an example of coercion because Jason denies Carole the conjunction of not having sex with him and not dying. I use the wealth example instead (which Meyers introduces in case the reader thinks the other example has too much ‘shock value’), because I consider it to be a case of rape apologism and do not want to reproduce this kind of wilfully ignorant and insensitive discourse. 17. Meyers, ‘Wrongful Beneficence’, 325. 18. Joel Feinberg, ‘Failures of Consent: Coercive Force’, in The Moral Limits of the Criminal Law ed. Joel Feinberg (Oxford Scholarship Online: Oxford University Press, 1989), 192. 19. Alternatively, Alan Wertheimer argues that if A proposes to make B worse off compared to what B can expect from A (or A has a duty to do) then this counts as a coercive threat. Wertheimer, Exploitation, 110–11. 20. Jeremy C. Snyder, ‘Needs Exploitation’, Ethical Theory and Moral Practice 11 (2008): 390. 21. Snyder, ‘Needs Exploitation’, 396. 22. Ibid., 397.

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23. Ibid., 403. 24. Iris Marion Young, ‘Responsibility and Global Labour Justice’, The Journal of Political Philosophy 12, no. 4 (2004); Iris Marion Young, ‘Responsibility and Global Justice: A Social Connection Model’, Social Philosophy and Policy 23, no. 1 (2006); Iris Marion Young, Responsibility for Justice (Oxford: Oxford University Press, 2011). 25. Snyder, ‘Needs Exploitation’, 400. 26. Ibid., 398. 27. Lourdes Benería and Martha Roldán, The Crossroads of Class and Gender: Industrial Homework, Subcontracting, and Household Dynamics in Mexico City (Chicago: University of Chicago Press, 1987); Guy Standing, ‘Global Feminization Through Flexible Labour: A Theme Revisited’, World Development 27, no. 3 (1999); Pearson, ‘Women’s Work’. 28. Benería and Roldán engaged in a seminal study of homework in Mexico City in the 1980s. Industrial homework work dissipated in Mexico in the 1990s as employing workers in factories become cheaper – see Laurie Nisonoff, Lynn Duggan, and Nan Wiegersma, ‘Introduction to Part Three’, in The Women, Gender and Development Reader, ed. Nalini Visvanathan, et al. (London: Zed Books, 2011), 203. However, it is making a comeback in other parts of the world – see Ruth Pearson, ‘Women’s Work’, 423. See also chapter. 4, Maria Mies, Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour, 3rd Edition ed. (London: Zed Books, 2014). 29. Zwolinski, ‘Structural Exploitation’, 175. 30. Ibid., 178. 31. Young, Responsibility for Justice, 52. 32. Robert Mayer, ‘Sweatshops, Exploitation and Moral Responsibility’, Journal of Social Philosophy 38, no. 4 (2007): 611. 33. Mayer, ‘Sweatshops’, 616. 34. Ibid., 611. 35. Benería and Roldán, Crossroads, 40. 36. Zwolinski, ‘Sweatshops’, 713. 37. ‘Accord on Fire and Building Safety in Bangladesh’, Bangladesh Accord Foundation, http://bangladeshaccord.org/. 38. Benjamin A. Evans, ‘Accord on Fire and Building Safety in Bangladesh: An International Response to Bangladesh Labour Conditions’, NCJ Int’l L. & Com. Reg. 40 (2014): 598. 39. As Evans points out, however, this is highly unlikely to happen in the United States, where the Supreme Court ruled that foreign cases must ‘touch and concern the territory of the United States’ with ‘sufficient force’. Ibid., 617. 40. Ann Harrison and Jason Scorse, ‘Improving the Conditions of Workers? Minimum Wage Legislation and Anti-Sweatshop Activism’, California Management Review 48, no. 2 (2006): 155. 41. Harrison and Scorse qualify their findings in various ways, but this study is enough to cast suspicion on the claim that raising wages will necessarily lead to capital flight or businesses going bust. 42. G.A. Cohen, ‘The Labour Theory of Value and the Concept of Exploitation’, Philosophy & Public Affairs 8, no. 4 (1979).



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43. Mariarosa Dalla Costa and Selma James, The Power of Women and the Subversion of Community (New York: Pétroleuse Press, 2010); Mies, Patriarchy and Accumulation; Silvia Federici, Caliban and the Witch (New York: Autonomedia, 2004). 44. Heidi Hartmann, ‘The Unhappy Marriage of Marxism and Feminism: Towards a More Progressive Union’, and Gloria Joseph, ‘The Incompatible Menage A Trois: Marxism, Feminism, and Racism’, both in Women and Revolution: A Discussion of the Unhappy Marriage of Marxism and Feminism, ed. Lydia Sargent (Boston: South End Press, 1981). 45. Michael Hardt, ‘Affective Labour’, boundary 2 26, no. 2 (1999). 46. For a full explanation as to how I reach this definition of structural exploitation, see McKeown, ‘Global Structural Exploitation’. See Young, Justice and the Politics of Difference, Chapter 2. 47. Jeffrey Reiman, ‘Exploitation, Force, and the Moral Assessment of Capitalism: Thoughts on Roemer and Cohen’, Philosophy & Public Affairs 16, no. 1 (1987): 16. 48. These are some of the alternatives available to sweatshop workers in Bangladesh and Mexico, see Seabrook, The Song of the Shirt; María Patricia Fernández-Kelly, ‘Maquiladoras: the View from the Inside’, in The Women, Gender and Development Reader, ed. Nalini Visvanathan, et al. (London: Zed Books, 2011). 49. Reiman, ‘Exploitation’, 14. 50. Ibid. 51. Ibid. 52. Ibid. 53. Ibid., 15. 54. Seabrook, The Song of the Shirt. 55. Reiman, ‘Exploitation’, 12. 56. Transactional accounts do take coercion seriously. In the case of sweatshop labour, however, employers do not have an obligation to improve the workers’ situation in general, so offering below-subsistence wages and poor working conditions will not be considered coercive on this view. Also, while transactional accounts discuss coercion between individuals, they do not discuss the role of social structures in determining options available to agents and how we can think of social structures as ‘forcing’ groups into particular roles. 57. Even though he uses these concepts slightly differently, I borrow this term from C.B. Macpherson, ‘The Problems of a Non-Market Theory of Democracy’, in Democratic Theory: Essays in Retrieval, ed. C.B. Macpherson (Oxford: Clarendon Press, 1973). 58. C.B. Macpherson, ‘Problems’, 67. 59. I prefer this more expansive interpretation of what is forcibly transferred in structural exploitation to the Marxist conception of surplus labour, because surplus labour relies on the concept of productive labour, which excludes unproductive labour (e.g. domestic labour and services) and immaterial labour (affective or emotional labour). 60. Seabrook, The Song of the Shirt, 45. 61. Miriam Ching Yoon Louie, Sweatshop Warriors: Immigrant Women Workers Take on the Global Factory (New York: South End Press, 2001), 36.

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62. Fernández-Kelly, ‘Maquiladoras’, 228. 63. Diane Elson and Ruth Pearson, ‘The Subordination of Women and the Internationalization of Factory Production’, in The Women, Gender and Development Reader, ed. Nalini Visvanathan, et al. (London: Zed Books, 2011), 221. 64. Elson and Pearson, ‘Subordination’, 213; Fernández-Kelly, ‘Maquiladoras’, 225; Phu Huynh, ‘Assessing the gender pay gap in Asia’s garment sector’, in ILO Asia-Pacific Working Paper Series (Bangkok: International Labour Organisation, 2016); Pearson, ‘Women’s Work’, 422. 65. Folker Fröbel, Jürgen Heinrichs, and Otto Kreye, The New International Division of Labour (Cambridge: Cambridge University Press, 1980), 12. 66. Ibid., 13. 67. Ibid., 322. 68. Ibid., 13. 69. Ibid. 70. Elson and Pearson, ‘Subordination’, 212. 71. Helen I. Safa, ‘Runaway Shops and Female Employment: The Search for Cheap Labour’, Signs 7, no. 2 (1981): 419. An alternative proposition is that women are more productive than men. But as historically there have been so few men in the sector in factory-floor jobs, this has not been possible to measure (Elson and Pearson, ‘Subordination’, 213). 72. Nancy L. Green, ‘Women and Immigrants in the Sweatshop: Categories of Labour Segmentation Revisited’ Society for Comparative Study of Society and History 38, no. 03 (1996); Safa, ‘Runaway Shops’, 419–22. 73. Safa, ‘Runaway Shops’, 418. Of course, another source of cheap labour in the garment industry is children. I do not include child labour here because from the libertarian perspective it could be considered wrongful. 74. Huynh, ‘Assessing’. 75. Benería and Roldán, Crossroads, 46; Deepita Chakravarty, ‘“Docile Oriental Women” and Organised Labour: A Case Study of the Indian Garment Manufacturing Industry’, Indian Journal of Gender Studies 14, no. 3 (2007): 452. 76. Fernández-Kelly, ‘Maquiladoras’, 227. 77. Diane Elson and Ruth Pearson, ‘“Nimble Fingers Make Cheap Workers”: An Analysis of Women’s Employment in Third World Export Manufacturing’, Feminist Review 7, no. 1 (1981): 93. 78. Benería and Roldán, Crossroads, 46. 79. Elson and Pearson, ‘Nimble Fingers’, 96. 80. Elson and Pearson, ‘Subordination’, 217. 81. Benería and Roldán, Crossroads, 47; Elson and Pearson, ‘Nimble Fingers’, 92. 82. Benería and Roldán, Crossroads, 47–49. 83. Ibid., 50, and Elson and Pearson, ‘Nimble Fingers’. 84. Benería and Roldán, Crossroads, 52. 85. Al Szymanski, ‘The Structure of Race’, Review of Radical Political Economics 17, no. 4 (1985): 113. 86. Szymanski, ‘Structure’, 108.



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87. Elson and Pearson, ‘Nimble Fingers’, 93. 88. Chakravarty, ‘Docile’, 458. 89. Nisonoff, Duggan, and Wiegersma, ‘Introduction’, 204. 90. Standing, ‘Global Feminization’, 584–85. 91. Pearson, ‘Women’s Work’, 423. 92. Ibid., 423–24. 93. Nancy Holstrom, ‘Exploitation’, Canadian Journal of Philosophy 7, no. 2 (1977): 364. 94. Ibid., 362. 95. Young, Justice and the Politics of Difference, 33–38. 96. Young, Responsibility for Justice, 52. 97. Green, ‘Women and Immigrants in the Sweatshop’, 432. 98. Ashok Kumar and Jack Mahoney, ‘Stitching Together: How Workers are Hemming Down Transnational Capital in the Hyper-Global Apparel Industry’, Working USA: The Journal of Labour & Society 17 (2014). 99. Kumar and Mahoney, ‘Stitching Together’, 199. 100. Didi Tang, ‘30,000 Strike at Nike and Adidas in China’, The Scotsman, 18 April, 2014. 101. Michelle Tolson, ‘Fashion Backward: Cambodian Government Silences Garment Workers’, Inter Press Service, 9 January, 2014. 102. Mech Dara, ‘Predictions Mixed for Post-New Year Garment Strike’, The Cambodia Daily, 17 April, 2014. 103. Chakravarty, ‘Docile’, 454. 104. Elson and Pearson, ‘Subordination’ 222. 105. Mohanty, Feminism without Borders, 143. 106. Louie, Sweatshop Warriors, 14. 107. Ibid., 14–15.

Chapter 3

False Parallels Exploitation in Markets and ‘Exploitation’ in Social Relationships Waheed Hussain

How should we think about the actions of someone who takes advantage of people who love and care for him? Imagine, for example, that my wife and I face a series of choices that involve trade-offs between our respective careers. In every case, I ask my wife to accept the choice that will advance my career at the expense of hers. Suppose that I do this knowing fully well that she loves me and will do as I ask. It seems clear that, under certain conditions, I act wrongly when I ask her to make these sacrifices. But do I exploit her? Does taking advantage of her affection and treating it as an opportunity for self-advancement constitute exploitation? I argue that the answer is no. Under certain conditions, I act wrongly when I ask my wife to make the relevant sacrifices, but the actions in question are not properly understood as exploitation. This is because exploitation is a type of wrongful conduct that occurs in the special circumstances of a market (or some similar institution). In an institution such as the market, people have a special permission to take advantage of other people’s vulnerabilities. Exploitation is a distinctive type of wrongful conduct that involves exceeding the boundaries of this special permission. For the most part, however, people do not interact with one another in the special circumstances of a market. Outside of the market sphere, people may also act wrongly when they take advantage of others, but the wrongfulness of their conduct does not involve exceeding the boundaries of a special permission. Instead, the wrongfulness of their conduct involves violating moral principles that require them to treat other people’s vulnerabilities with various forms of concern, prudence, support and reciprocity. Let me stress at the outset that the issue here is not primarily about the proper use of the term ‘exploitation’. Although I think that ‘exploitation’ is the correct term to use, you could use some other term to refer to the special 59

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type of wrongful conduct that occurs in a market. The important point is that there is a distinctive type of wrong that people can commit in a market that does not have a parallel outside of the market sphere. The theoretical motivation for my argument stems from a tendency among philosophers to regard all of social life through the lens of market interaction. Philosophers sometimes assess conduct in various social spheres by appeal to the special principles that apply in the case of a market.1 It is, however, a deep and important fact about social life that most social interaction does not occur in this special context. For the most part, we interact with one another in circumstances where various institutions and social relationships impose special obligations on us. Most forms of wrongful treatment in social life are not cases in which people exceed the limits of what is permissible in terms of taking advantage of others. Rather, most forms of wrongful treatment are cases in which people violate principles that demand certain forms of positive concern for others. This point bears on certain claims about class exploitation under capitalism. In the first four sections of this chapter, I draw a distinction between the market domain and other domains in social life. I show how a certain kind of wrongful conduct – that is, exploitation – presupposes the special conditions of the market, conditions that do not exist in other domains. In the final section, I consider an implication of my argument. If exploitation is a kind of wrongful treatment that presupposes the special context of a market, what should we say about the exploitation of the working class in a capitalist society? Capitalism is an institutional arrangement that defines an extensive sphere of market interaction. Capitalist institutions define an interaction between competing classes, but these institutions and the interaction they define do not unfold exclusively within the market sphere. It follows that the interaction among classes is not, strictly speaking, an instance of exploitation. I believe that this implication of my view is correct, and that the interaction among workers and capitalists under capitalism, when it is wrongful, involves a type of mistreatment that has more in common with the case of a bad marriage than the case of a bad contract. EXPLOITATION AND MORAL CONTEXT My central claim in this chapter is that exploitation is a type of wrongful conduct that presupposes a certain moral context. It is often wrong for people to take advantage of other people’s vulnerabilities. But the factors that explain why this type of conduct is wrongful are different in different social circumstances. Exploitation refers to the special case in which people operate in the context of a social institution in which they have permission to take advantage of other people’s vulnerabilities.2 People exploit others when they take



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advantage of other people’s vulnerabilities in a way that exceeds the boundaries of this special permission. So exploitation is a type of wrongful conduct because it violates moral principles that allow an agent to take advantage of other people’s vulnerabilities to a certain degree. To illustrate the point, consider the following example. Bad Contract. A is a record company. B is an aspiring singer. A knows that B is desperate to break into the music business and is willing to make unreasonable sacrifices to do so. A decides to use B’s desperation as a resource to advance its interests. A proposes a recording contract to B with terms that are extremely favourable to A’s interests, without regard for how the contract would affect B’s interests. A’s goal is to finalize a contract that advances its own interests as much as possible.

The case of the bad contract is a textbook case of exploitation. In this example, the record company and the singer meet as market actors. There is some degree to which market actors may regard one another in purely instrumental terms. Market actors may ‘use’ one another in the sense that they may advance their own interests by acting in ways that affect the other market actor, where their reasoning is limited only to their own interests and does not take the other actor’s interests into account. At the same time, however, it is clear that market actors may cross the line from permissible forms of using other market actors to impermissible forms of exploitation. Market actors may go too far in terms of taking an instrumental attitude towards other market actors, and a conception of exploitation marks the boundary. In the case of the record company, the actions of the company may cross the line from permissible ‘use’ to ‘exploitation’ when, for example, the company derives excessive benefits from the desperation of the singer or benefits that exceed what the singer herself would accept in better circumstances.

THE MARKET IS A DISTINCTIVE MORAL CONTEXT In order to understand the central importance of moral context to the idea of exploitation, it is important to avoid thinking of the market in isolation. It is essential to situate the market in a more fully developed conception of social life. Let’s call the sphere of social life in which people meet as private individuals the ‘civil sphere’. In the civil sphere, people do not act as public officials, but as private individuals, each advancing her own conception of the good life. The civil sphere is a complex domain, one that consists of many different arenas for social interaction. Among these arenas, we can include classrooms, universities, sports leagues, churches, playgrounds, sidewalks, and markets. These various arenas are distinctive in that a distinct set of moral

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principles applies to the conduct of individuals occupying various roles in each one: for example, the principles of appropriate conduct for a professor in a classroom are different from the principles of appropriate conduct for a parent on the playground.3 Markets are different from most other arenas for social interaction in the civil sphere. What makes markets distinctive, as I noted earlier, is that market actors are permitted to take a purely instrumental attitude towards other market actors, that is, they may treat other actors in ways that reflect an exclusive concern for their own interests, rather than the interests of the other actor. We can think of the special permission as having two features that are especially important for my purposes. (1) As market actors, people have permission to advance their own interests by intentionally taking advantage of the fact that other market actors have certain needs or lack certain forms of information. (2) As market actors, people have permission to advance their own interests without having to take into account how their advancing their own interests might damage the interests of other market actors. For example, suppose that I am a shovel manufacturer and you need a shovel. Insofar as we are both market actors, I can treat your need as an opportunity to make a profit. Moreover, I can bargain with you to get a higher price for a shovel, even though any extra dollar I secure for myself in the negotiation would mean one less dollar for you. The distinctive character of the market as a social institution becomes clearer when we contrast it with other institutional arenas for interaction. Here is an illustration, adapted from Amartya Sen.4 Suppose that you come up to me on the street one day and ask me for directions. According to the moral principles appropriate to people meeting on the street, I have to make a reasonable effort to help you by providing you with the relevant information (if I have it). I would violate these principles if I tried to take advantage of the fact that you lacked the relevant information. For instance, I would violate these principles if I withheld the information from you until you paid me. And I would violate these principles if I held out to extract as much money from you as possible. By contrast, suppose that I run a business giving tours of the city. You come to my office one day looking to hire me for my special knowledge. Insofar as we meet as market actors, it would be permissible for me to withhold information from you on the condition that you pay me. And it would be permissible for me to hold out to get the highest price possible for my services, even though this would come at a cost to you. The contrast between the two cases illustrates a fundamental distinction between markets and other arenas in the civil sphere. In a market, people have a special permission to pursue their own ends by taking advantage of other people’s vulnerabilities and a special permission to pursue their own ends in ways that damage the interests of others.5 They have permission to regard other people’s vulnerabilities as resources that they may use to advance their



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own interests. In effect, certain requirements of mutual concern apply very widely in the civil sphere, but these requirements are not applicable in the same way within the special circumstances of a market. Why do people have special permission to take advantage of one another’s vulnerabilities in a market? The answer is that a permission of this kind serves an important social purpose. Under the right conditions, a process of bargaining and exchange among mutually disinterested actors, within a system of private property, will generate and maintain an allocation of resources in society that advances each person’s self-regarding aims in an efficient way. For example, in a society in which people are permitted to ask others to pay them for specialized knowledge, there is an economic incentive for people to develop these bodies of knowledge, and this will generate (under the right conditions) a level of investment in knowledge creation that reflects the benefits that this knowledge may bring to all members of society.6 No other process of social coordination could realistically achieve comparable results.7 With the right background institutions in place, everyone has reason to want to maintain a process of this kind and no one could reasonably complain that the arrangement is unfair to them.8 Given these facts, institutional morality recognizes a sphere in which people are permitted to take advantage of one another’s vulnerabilities in ways that would not be permissible in most other arenas of social interaction. The most obvious theoretical pressure to develop a conception of exploitation comes from the need to articulate the proper limits of the special permission that people have to take advantage of one another in a market. The permission to take advantage of others is, after all, a very dangerous one. In certain instances, everyone in society may have good reason to accept a certain permission for people to take advantage of other people’s vulnerabilities. But there are many instances in which everyone would not have good reason to do so. Consider permission for one hedge fund to take advantage of another hedge fund’s lack of information about the quality of a certain investment. Everyone may have good reason to accept this permission both because it will lead to a more efficient allocation of investment capital in society and because the parity among the parties involved means that no one can complain of unfairness. But contrast this permission with permission for a hedge fund to take advantage of an elderly pensioner’s lack of information about the quality of an investment. The latter permission may also improve the allocation of investment capital in society, but the lack of parity between the parties would give some people a very reasonable basis to complain of unfairness. A conception of exploitation serves most distinctively to mark the boundary between legitimate and illegitimate ways in which market actors can take advantage of the needs or ignorance of other market actors. Different conceptions of exploitation will draw the boundary in different ways. Some

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will draw the boundary by an appeal to the distribution of benefits that flow from a certain market interaction. For views of this kind, exploitation occurs when one person benefits much more than the other person does. Others may draw the boundary by an appeal to the type of ‘leverage’ that one market actor may have to make another market actor accept certain terms of interaction. For example, if B would starve without a job, and A is in a position to employ B, then A may have the leverage to make B accept almost any terms of interaction. For the purposes of this chapter, I will not enter into disagreements between various competing accounts of what constitutes legitimate versus illegitimate ways that market actors can take advantage of one another. What matters most in my argument is not the precise details of the correct conception of exploitation, but rather the more abstract idea that a conception of exploitation properly so called aims to map a certain distinction in the ethics of market interaction. EXPLOITATION PRESUPPOSES A CERTAIN TYPE OF MORAL CONTEXT Exploitation is a distinctive type of moral wrongdoing that presupposes the special context of a market or some similar institution. ‘Exploiting’ another person presupposes the background of a social institution in which it is permissible for one person to take advantage of another person’s vulnerabilities. Exploitation consists of those actions that involve a person exceeding the special permission that people have in a certain context to take advantage of others. It follows that there may be instances in which one person wrongfully takes advantage of another person, but this does not constitute exploitation because the relevant background permission does not exist. To illustrate, consider the following example. Lost in the city. You are new to the city and hopelessly lost in a dangerous neighbourhood. People in this neighbourhood have a long-standing grievance against people of your ethnic background. If you do not get out soon, there is a good chance that you will be attacked and suffer a permanent disability (or worse). You come up to me and ask me for directions. I know the way out. There is no one else around who can help you. I offer to guide you for a price. In negotiating, it becomes clear to me that you have a certain amount of money saved for retirement, and I demand half this amount as payment.

It is clear that I act wrongfully in the example. It is also clear that the wrong I commit involves my wrongfully taking advantage of your bad circumstances.



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But do I exploit you? The answer, it seems to me, is clearly no. Notice first that, although I demand an excessively large payment from you in the example, the size of the payment is not actually essential to the wrongfulness of my action. I would act wrongly in the circumstances described, even if I demanded only a small payment for my effort. What is essential to the wrongfulness of my conduct is simply the fact that I make my helping you conditional on receiving a payment. Think of it this way. In the circumstances described, I have an obligation to help you. We might think of this obligation in terms of moral principles that apply to anyone in the position of a knowledgeable local in a city. The moral principles that apply to those in my position simply require me to help those in the position of a lost stranger. The very same moral principles would apply if the tables were turned: if you were in the position of a knowledgeable local and I were in the position of a lost stranger, you would have an obligation to help me. The moral principles that apply to life on the city streets simply demand that knowledgeable locals treat the vulnerabilities of lost strangers with a certain kind of caring concern. The obligation of knowledgeable locals is like the obligation to tell the truth or the obligation to leave others alone if they ask to be left alone: I have no right to refuse to fulfil the obligation or to threaten to refuse to fulfil it. Moreover, I take it that you do not have the power to release me from the obligation (certainly not in the face of a threat).9 It follows that I act wrongly when I take advantage of your vulnerability in this case, but the reason has nothing to do with my going beyond permissible ‘use’. My conduct is wrong simply because I violate the moral principles that apply in this case, which require a certain kind of caring concern towards the vulnerabilities of strangers. Putting the point in the terms that I have been stressing in this chapter, the interaction between you and me in the example does not occur in the special circumstances of a market.10 There is no background permission in the circumstances described for me to treat your vulnerability as an opportunity to advance my interests. Similarly, there is no background permission for me to advance my interests in ways that do not take your interests into account as well. So what stands out as the wrong making factor in the example is not the extent of the advantage that I derive from your vulnerability, but the very fact that I treat your vulnerability as an opportunity for advancement in the first instance. Although it is true that I ask you for an exorbitant payment in return for leading you out of the dangerous neighbourhood, the size of the payment is not essential to the wrongfulness of my action. I would act wrongfully in this case, even if I made my helping you conditional on receiving only a modest payment.

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SOCIAL RELATIONSHIPS: ANOTHER MORAL CONTEXT City streets and markets are two institutionally defined arenas for social interaction. Both of these arenas involve interaction among relative strangers, but the moral principles that apply in each case are different. The principles of interaction in markets allow for certain kinds of behaviour among market actors that would not be permissible among strangers in other contexts. I turn now to a different kind of context for interaction. People stand in various types of social relationships with one another. These relationships include marriages, friendships, sibling relations, parent-child relations, relations among neighbours, and so on. Social relationships resemble institutionally defined arenas for interaction in that certain moral principles apply to those who occupy different roles in a relationship, for example, parents and children in a family. These principles also typically require certain forms of mutual concern among participants. The main difference is that in the case of social relationships, people have reason to participate in and maintain the relationship because of the intrinsic value of the type of solidarity involved. By contrast, in the case of social institutions, people have reason to participate in and maintain the institution mainly because it serves certain generic human interests. Social relationships require certain forms of mutual concern among participants. Parents, for example, are required to care for their children in certain ways, and children are required to care for their parents. Participants in these types of relationships are not typically permitted to regard one another in a purely instrumental way or to take advantage of one another’s vulnerabilities. In the context of a relationship, people may therefore act wrongly when they take advantage of other people’s vulnerabilities, but the nature of the moral context does not satisfy the presuppositions of exploitation. We can make the point clearer with a contrast. Consider first the relatively clear-cut case of exploitation exemplified in the earlier example of a bad contract. Bad Contract. A is a record company. B is an aspiring singer. A knows that B is desperate to break into the music business and is willing to make unreasonable sacrifices to do so. A decides to use B’s desperation as a resource to advance its interests. A proposes a recording contract to B with terms that are extremely favourable to A’s interests, without regard for how the contract would affect B’s interests. A’s goal is to finalize a contract that advances its own interests as much as possible.

Now compare the case of the bad contract with the following case. Bad Marriage. A and B are married. They face a choice that involves significant trade-offs between A’s career and B’s career. A knows that B loves him very



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much and is willing to make unreasonable sacrifices to make A happy. A decides to treat B’s love for him as a resource to advance his interests. A proposes a course of action that is extremely favourable to his own career interests, without regard for how this course of action would affect B’s career interests. His goal is to reach a joint plan that advances his own interests as much as possible.

The record company in the first example and the selfish husband in the second both act in ways that aim to take advantage of certain vulnerabilities in other people. The record company seeks to take advantage of the fact that the aspiring singer is desperate to break into the music business. The selfish husband seeks to take advantage of the fact that his wife loves him very much. In this way, the two cases are similar. Nonetheless, there is an important difference at the level of what makes the intentional taking advantage of others wrong in each case. In the case of the bad contract, there is some degree to which the actors involved may permissibly regard one another in purely instrumental terms. If the record company acts wrongly in the example, it does so not simply because it treats the vulnerability of the aspiring singer as an opportunity for self-advancement. Rather, it acts wrongly because it goes too far in this regard. The record company violates a set of moral principles that permit a certain degree of taking advantage of others: it crosses the line from permissible use to excessive use – i.e. exploitation. The case of the bad marriage is different. Partners in a marriage may not regard one another in purely instrumental terms. There is no sense in which one married partner may regard the love and affection of the other married partner as a resource that he may use to advance his own ends. In particular, partners in a marriage are not supposed to regard one another’s affections as opportunities for self-advancement. The moral principles that apply to married partners require the husband to respond to his wife’s love for him in a particular way, namely by loving and caring for her in return. So when the husband treats his wife’s love for him as an opportunity for advancing his interests, he already violates a moral principle simply in virtue of this fact. There is no question here of the husband permissibly taking advantage of his wife’s affection, and thus no question of his exceeding permissible advantage taking in this context. Since there is no permissible degree to which married partners may take advantage of one another’s affections, the background presupposition of exploitation is missing. When the husband takes advantage of his wife’s affections, he clearly acts wrongly. But the wrong that he commits is a violation of the moral principles that apply to married partners. The principles of the relationship simply do not permit partners in the relationship to take advantage of one another’s vulnerabilities in the ways that would be

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permissible in an institution such as a market. As such, the husband’s actions, though clearly wrongful, do not constitute exploitation. The distinction becomes clearer when we consider whether the degree of benefit matters. In the case of the bad contract, the wrongfulness of the record company’s action depends in a fundamental way on the degree of benefit that it secures in the contract. The fact that the company benefits excessively is essential to the wrongness of its actions because this fact is what puts the action beyond the scope of permissible use. By contrast, in the case of the bad marriage, the wrongfulness of the husband’s action does not depend fundamentally on the degree to which he benefits from the joint plan. Even if the husband was only able to secure modest benefits for himself – maybe he was not skilled enough at manipulating his wife – his actions would still be wrong, simply because he violated the requirements of mutual concern that apply to partners in this type of relationship. CLASS EXPLOITATION UNDER CAPITALISM Up to this point, I have argued that exploitation is a type of wrongful conduct that presupposes the special circumstances of a market. One person exploits another person when, in a moral context that permits her to take advantage of other people’s vulnerabilities, she exceeds the limits of this special permission. This view of exploitation has important implications for Marx’s account of class exploitation under capitalism. Following Marx, I take it that a social class consists of all those individuals who occupy positions in a society’s institutional structure that belong to the same functionally defined grouping. Each grouping of positions is defined in terms of the control that the occupants of these positions have over society’s productive assets. The ‘working class’ (i.e. ‘workers’ or the ‘proletariat’) consists of all those individuals who occupy positions in which they have control over their labour power, but do not have control over the productive assets that are necessary for their labour power to produce the goods that would satisfy their basic needs. People in these positions must sell their labour power to survive. The ‘capitalist class’ (i.e. ‘capitalists’) consists of all those individuals who control productive assets and control enough of these assets that they do not need to sell their labour power in order to survive. Individuals can move around, to some extent, from positions in one grouping to positions in another, but the overall structure of positions is relatively fixed by factors such as technology and the natural environment.11 At one level, capitalists and workers clearly meet within the special circumstances of a market. The members of each class meet as individual employers and individual workers who must negotiate terms of employment.



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Insofar as they meet within the context of a market, the members of each class may clearly engage in exploitation, as they may exceed the limits of the special permission that market actors have to treat one another in an instrumental fashion. According to the moral principles of the market, a capitalist may permissibly treat the vulnerability of a worker (i.e. the fact that she needs a job to live) as a resource for advancing her interests. But the capitalist may exceed the limits of this permission. For example, in Marx’s view, the capitalist would exceed this permission if she paid a worker a wage that does not compensate the worker for the long-term wear and tear that her body undergoes on the job. The capitalist fails, in this case, to pay the worker for the depreciated value of the ‘machine’ that the worker rents out to the capitalist – that is, the worker herself.12 At another level, however, it is clear that, in Marx’s view, capitalists and workers do not meet within the special context of a market. This is clearest when we consider the myriad ways in which capitalists improve the return on their productive assets over the long run. Among the most important things that capitalists do is use the political process to change the laws. For example, capitalists will press for changes that lengthen the workday, lower worker safety standards, expand the pool of potential workers, and privatize various shared productive assets (e.g. common land).13 From Marx’s standpoint, the interaction between capitalists and workers unfolds at a level that is more fundamental and more encompassing than the market: the market is one arena in which the conflict plays out, but the conflict spills out into other arenas as well. Given that the conflict between capitalists and workers is not confined to the market sphere, how should we characterize the moral context in which it takes place? As I understand it, the conflict takes place in a moral context defined by a social relationship. One might call this the ‘political relationship’. Members of a political community stand in this relationship with one another insofar as they are involved in an encompassing pattern of social cooperation that reproduces the community from one generation to the next. Following Rawls, I take it that the moral principles appropriate to participants in this relationship require them to act with a certain kind of mutual concern.14 Each member of the community must act towards others according to a sense of justice. Among other things, she must offer just terms of social cooperation to others and accept just terms of social cooperation when these are offered to her. As a moral context, the political relationship is clearly different from a market. For example, suppose that the members of some particular group in society are especially desperate to be accepted in the wider community. The members of the group offer me unfair terms of social cooperation, terms that

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are actually more favourable to me than the principles of justice would allow. The moral principles appropriate to participants in the political relationship would not allow me to take advantage of the fact that other participants are desperate to be accepted. The political relationship demands that I respond to the concern shown to me by the members of the desperate group with an appropriate concern in return, and this requires that I reject the unfair terms that they offer in favour of terms that are fair to everyone. Insofar as the conflict between capitalists and workers permeates most of social life, the proper way to characterize the moral context for the conflict is in terms of the political relationship. From the standpoint of the political relationship, the actions that capitalists take to increase the returns on their assets are wrongful because they represent a violation of the principles appropriate to people who stand in a political relationship. Taking steps to secure greater returns for yourself by, for example, extending the workday or lowering labour standards, without regard for the interests of other members, is a violation of the requirements of mutual concern among members of a political community. Capitalists violate the moral principles of the political relationship simply by taking a certain kind of instrumental attitude towards workers, even if the efforts of capitalists fail to actually generate returns for themselves that are inconsistent with the principles of justice (e.g. maybe they are not very good at manipulating the political system). Just to be clear, as Marx describes it, one part of the conflict between capitalists and workers does unfold within the special context of a market and may therefore be understood as a form of exploitation. The point that I am emphasizing is that the conflict as a whole clearly encompasses much more than bargaining among individual capitalists and individual workers in a market. The conflict permeates a wide swath of social life, spilling over into the political arena and many other domains. To think of the wrongfulness of this interaction purely in terms of exploitation represents a failure to appreciate the presuppositions of exploitation and the distinct character of the market as a context for social interaction. At the most fundamental level, the wrongfulness of the interaction does not consist in exploitation, but in a failure of the members of a political community to live up to the moral requirements of the political relationship. CONCLUSION Exploitation is a distinctive type of wrongful conduct that presupposes the special circumstances of a market or some similar institution. When we act in moral contexts where we have a limited permission to take advantage of other people’s vulnerabilities, we may violate the limits of this permission,



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crossing the line from permissible use to exploitation. But it is important to distinguish exploitation from other instances of wrongfully taking advantage of others. For the most part, people do not interact with one another in the special circumstances of a market. Even when people meet in public life as strangers, they typically meet in institutional settings where the relevant moral principles require them to act with certain forms of mutual concern. The social world is a civil arena, and the demands of civil interaction are quite different from the radical form of mutual disinterestedness that is permissible among market actors. Outside of the market sphere, people may act wrongly when they take advantage of others, but the wrongfulness of their actions stems from the fact that it directly violates moral principles that require certain forms of mutual concern. The presuppositions of exploitation have important implications for Marx’s analysis of capitalism. Capitalists wrongly take advantage of workers in a capitalist society, but the interaction between capitalists and workers does not unfold strictly within the market sphere. As such, it is a mistake to think of the interaction between capitalists and workers as a form of exploitation. One part of the interaction may involve exploitation, but at the most fundamental level, the conduct of capitalists is wrongful because it violates moral principles that are appropriate to people who stand in a certain kind of social relationship. The political relationship demands a certain form of mutual concern, and in seeking to extract resources from workers, without regard for their interests, capitalists violate the principles of this relationship. So in the final analysis, the interaction between capitalists and workers is wrongful, but the wrongfulness of the interaction has more in common with a bad marriage than a bad contract. ACKNOWLEDGEMENTS Thanks to Vida Panitch, Hallie Liberto, and Joseph Carens for helpful discussions of the main themes in this chapter.

NOTES 1. See Michael Walzer, Spheres of Justice (New York: Basic Books, 1983); Elizabeth Anderson, Value in Ethics and Economics (Cambridge: Harvard University Press, 1993). 2. The market is one example of an institution in which people may take advantage of other people’s vulnerabilities. But there are many others. For example, in a game of basketball, one player is permitted to take advantage of the fact that certain

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players on the opposing team are short, slow, or bad at defending against certain moves. Similarly, in a criminal trial, the defence is permitted to take advantage of the fact that certain prosecution witnesses are not credible. 3. The moral principles that apply to people’s conduct in different roles in each domain are properly understood as deriving from a deeper moral structure that stands behind and unifies these various moral obligations. See John Rawls, A Theory of Justice, revised edition (Cambridge: Harvard University Press, 1999); Thomas Nagel, ‘Ruthlessness in Public Life’, in Mortal Questions (Cambridge: Cambridge University Press, 1979); Thomas Scanlon, ‘Due Process’, in The Difficulty of Tolerance (Cambridge: Cambridge university Press, 2003) and What We Owe to Each Other (Cambridge: Harvard University Press, 1998). 4. Amartya Sen, ‘Rational Fools: A Critique of the Behavioral Foundations of Economic Theory’, Philosophy and Public Affairs 6, no. 4 (1977): 317–44. 5. See Christopher McMahon, ‘Morality and the Invisible Hand’, Philosophy and Public Affairs 10, no. 3 (1981): 247–77; Arthur Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life (Princeton: Princeton University Press, 1999); Joseph Heath, Morality, Competition and the Firm: The Market Failures Approach to Business Ethics (New York: Oxford University Press, 2014). 6. This claim assumes, of course, that markets are embedded in an appropriate scheme of institutions to ensure that wealth is properly dispersed in the population and that certain other background conditions are met. 7. See Charles Lindblom, The Market System: What it is, How It Works, and What to Make of It (New Haven: Yale University Press, 2001); Friedrich Hayek, ‘The Use of Knowledge in Society’, in Individualism and the Economic Order (Chicago: University of Chicago Press, 1996). 8. Here I appeal to Scanlon’s contractualist account of a ‘justified’ or ‘legitimate’ social institution. See T.M. Scanlon, ‘The Significance of Choice’, The Tanner Lectures on Human Values, volume 8, Sterling McMurrin (ed.) (Salt Lake City: University of Utah Press, 1988), 185. 9. Giving lost strangers the power to release knowledgeable locals would create an incentive for knowledgeable locals to pressure lost strangers to release them. 10. There is an important question to consider here about when an interaction takes place in the context of the market rather than some other social institution. I cannot explore this question fully here, but I would stress that it is not simply a matter of what the agents in question happen to think. The power of individuals to move their interaction from one institution to another is itself an institutional power of a certain kind that must be justified in light of various values and concerns. In the case of the lost stranger, for example, the fact that you and I agree to some payment scheme does not automatically shift our interaction from the context of ‘street life’ to the market. After all, if people had the power to shift their conduct in this way, then the wealthy could consistently entice knowledgeable locals into a market interaction, thereby depriving other people of access to knowledge. Of course, this concern must be balanced against other concerns, such as individual freedom, but there are many reasons to think that justified institutions do not automatically grant individuals the power to determine the rules that apply to their interactions.



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11. Karl Marx, Capital, volume one (New York: International Publishers, 1967); see also G.A. Cohen, Karl Marx’s Theory of History: A Defense (Princeton: Princeton University Press, 2001). 12. Workers may also, in principle, exploit capitalists in times of exceptionally tight labour markets by demanding wages that do not compensate the capitalists for the wear and tear on their productive assets. 13. Karl Marx, Capital, volume one, especially chapters X, XV (section 3 and 9), and XXVI–XXIX. 14. See Rawls, A Theory of Justice, especially part III. It is clear that, in Rawls’s view, the principles of justice are meant to play a role in regulating interaction among individuals who stand in the political relationship with one another. The justification for the two principles appeals, in part, to the fact that they are more suited to playing this role, as compared, say, to the principle of average utility.

Chapter 4

Racial Exploitation and the Payoff of Whiteness* Charles W. Mills

In popular discourse, the idea that whites are somehow unfairly socially advantaged by race is normally framed in terms of ‘white privilege’, most famously in Peggy McIntosh’s multiple reprinted short essay on the subject.1 But while this now-ubiquitous meme does pick out a real social phenomenon, it gives only a superficial analysis of wrongful white benefit, one that does not capture in their full depth, for example, its myriad economic dimensions.2 In this chapter, I will suggest that a better approach to understanding the processes at work in this sphere is to revive and develop a concept that goes back a long way in black oppositional political thought, for example in the writings of W.E.B. Du Bois: the idea of racial exploitation.3 Exploitation as a concept is of course classically – for some commentators, definitionally – associated with the Marxist tradition. Exploitation is central to Marxist theory, since what distinguishes Marx’s analysis of capitalism from that of liberal theorists is that it is for him necessarily an exploitative system. Exploitation is not a matter of low wages or poor working conditions, though these will, of course, make it worse. Rather, exploitation has to do with the transfer of surplus value from the workers to the capitalists.4 To the extent that there is a normative critique in Marxism, then, it has often been taken to rely crucially on the claim that this relationship is an exploitative one.5 Moreover, it is not just capitalism but class society in general that is exploitative, which is why we need to move towards a classless society. Finally, the exploitative nature of the system does not reside in class prejudice, in pejorative views of the workers, but rather in their structural disadvantaging by this transfer of surplus value through the wage relation. If Marx is right, *Mills’ chapter is an abridged and modified version of an earlier essay by him, ‘America’s Unpaid Debt: Slavery and Racial Justice’, a Bowling Green State University Ethnic Studies Working Paper co-edited by Michael T. Martin and Marilyn Yaquinto (May 2003).

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class exploitation is normal, not requiring ‘classism’, but flowing out of the routine functioning of the system. But Marx was also hopeful that exploitation would stimulate proletarian resistance. It was in part precisely because of their exploitation that the workers were supposed to develop class consciousness, form trade unions, question the existing order, and ultimately participate in a revolutionary movement to overthrow capitalism. So exploitation provides both an explanation for the logic of domination and a potential basis for its political overcoming. What is supposed to make the socio political wheels go round are class interests of a material kind, tied to perceptions of economic advantage, actual and possible (i.e. in an alternative society). But the problem is that the claim that capitalism is necessarily exploitative historically rested on the labour theory of value, and with the discrediting of this theory, it has now become harder to defend.6 The case I want to make is that racial exploitation can provide a parallel, perhaps in some respects even superior, illumination of the inner workings of modern society, and that it is greatly advantaged over the Marxist concept by not being tied to a dubious economic theory. Comparatively little work has been done on the concept of racial exploitation. I think this is because it has fallen between both theoretical and political stools in an interesting way. In his book on ‘mutually advantageous and consensual exploitation’, Alan Wertheimer points out that though the term is routinely bandied about, mainstream liberal theorists have had surprisingly little to say about it: ‘Exploitation has not been a central concern for contemporary political and moral philosophy’.7 He suggests that there are at least three reasons for this silence: the concept’s guilt-by-association with Marxism; liberalism’s post-Rawlsian focus on ‘ideal theory’, the normative theory appropriate for a perfectly just society (in which, by definition, exploitation would not occur)8; and the fact that whereas exploitation is typically a ‘micro-level wrong’ characterizing individual transactions, ‘much of the best contemporary political philosophy tends to focus on macro-level questions, such as the just distribution of resources and basic liberties and rights’.9 (The presumptive contrast here speaks volumes about Wertheimer’s sanitized view of U.S. history – all too typical, unfortunately, of mainstream white American liberalism. Don’t macro-level questions about the unjust ‘distribution of resources and basic liberties and rights’ arise from the long history of American racism, a history of indigenous expropriation, African slavery, and de jure or de facto segregation?) On the other hand, where Marxists have looked at race, as another author, Gary Dymski, points out in a left-wing anthology on exploitation, they have typically reduced it to a variant of class exploitation: ‘Race has been virtually ignored in Marxian theorizing about exploitation. Race is assumed to enter in only at a level of abstraction lower than exploitation; and anyway, since minorities are disproportionately workers, racial inequality is simply a special



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case readily accounted for by a racially neutral exploitation theory’.10 And this is, of course, part of a larger problematic pattern of Marxist theory, its failure to recognize race as a system of domination in itself.11 Racial domination is subsumed under capitalist domination, and no separate theorization of its distinctive features is seen to be necessary. Even when race is cashed out in terms of super-exploitation, the process is still assimilated to class exploitation in that the ‘race’ in question is thought of as a differentially subordinated section of the working class and the exploitative relation involves getting extra value for the bourgeoisie, not whites as a group. So neither in mainstream (white) liberal theory nor in oppositional (white) Marxist theory has racial exploitation been properly recognized and theorized. And I am suggesting that we redress this theoretical deficiency and follow up on the insight expressed in various texts in the black American political tradition that white supremacy itself pays off in material ways for whites. In keeping with the shift in the radical academy in the 1980s from Marxism to poststructuralism, much of the 1990s-and-onward literature on ‘whiteness’, as Ashley Doane and Margaret Andersen complain in their introductory essays in White Out: The Continuing Significance of Racism, focuses on the discursive, the cultural, and the personal testimonial.12 This is not to deny, of course, that whiteness has numerous aspects and that the orthodox left of the past was deficient (following Marx’s own footsteps) in its handling of what were dismissed as ‘superstructural’ issues. But it is arguably the political economy of race that is crucial, and the discussion needs to be brought back to these fundamentals. A growing body of work in the last two decades on such themes as ‘whiteness as property’, on the differentials in ‘black wealth/white wealth’, on the ‘possessive investment in whiteness’, on the ‘legacies of white skin privilege’ (conceived of socio-economically), on an unacknowledged history of ‘affirmative action for whites’, on a self-reproducing ‘white racial cartel’, on an ongoing discriminatory ‘black tax’, and various other mechanisms of racialized dis/advantage and wealth extraction has brought a newfound analytic and academic respectability to a concept that would once have been associated only with controversial black radical figures.13 Moreover, recent historical excavations of the link between racial slavery, capitalism, and the modern world economy demonstrate how misleading orthodox white Marxism’s traditional conceptual insensitivity to the significance of the role of non-wage labour in founding and reproducing this global order has always been.14 While in an alternative world capitalism may have arisen and been sustained without racial exploitation, in this our actual world, it has been racialized capitalism from the start.15 Finally, the renewed call in the United States for reparations for slavery and Jim Crow rests not merely on their physical and psychic harms to blacks, but on the wrongful advantage these institutions have cumulatively and inter-generationally passed on to whites.16

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For all these reasons, then, I think a strong case can be made for the importance of (re)constructing a concept of racial exploitation, to be added to the standard toolkit in moral and political philosophy for understanding and morally critiquing our sociopolitical world. That world has been characterized in various ways by white supremacy/white racial domination. I have argued in greater detail elsewhere that white supremacy as a concept should be regarded as playing the same role for critical race theory that class society does for Marxism and patriarchy does for feminism: identifying and mapping a system of group domination.17 Just as we would distinguish class prejudice/ classism from class society and sexism from patriarchy, so I am claiming we should demarcate white racism as a body of ideas/values/beliefs from white supremacy as a social system (one that is, of course, articulated in complex intersectional ways to these other systems). In mainstream discourse the term is usually restricted to the American Old South and apartheid South Africa.18 But insofar as the modern world is fundamentally shaped by European colonialism and imperialism, I would contend that white supremacy should be seen as global.19 And since white supremacy has historically rested on the denial of equal personhood to, and anti-Kantian20 instrumentalization of, the subordinated non-white race(s), it means that both ‘transactional’ and ‘structural’ varieties of unfairness are going to be involved, since even when nonwhites attain equal juridical status, they are going to be handicapped by the (generally) uncorrected legacy of past overt racial subordination. Thus the concept of racial exploitation will necessitate a rethinking of our conventional normative frameworks. POSSIBLE OBJECTIONS AND REPLIES Before getting into the analysis, though, we have to deal with some preliminary objections. It might be objected, to begin with, that racial exploitation cannot exist because races do not exist. If, as the growing scholarly consensus on the question in anthropology and genetics agrees, races have no biological existence, then how can they be involved in relations of exploitation, or for that matter any other relations? And here, of course, the standard answer from critical race theorists is that races can have a reality that, though social rather than biological, is nonetheless causally efficacious within our racialized world. From the fact that race is socially constructed, it does not follow that it is unreal.21 Second, however, it might be claimed that insofar as race is socially constructed, then it is to the constructing agent that causality and agency really have to be attributed. In historical materialist versions of this claim,



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for example, it might be insisted that class forces, and ultimately the ruling class, the bourgeoisie, are the real actors. (So we could think of these as two Marxist reasons – though they come in other theoretical varieties also – apart from simple myopia, to deny racial exploitation: races do not exist in the first place, or if their social reality is grudgingly conceded, then, as a fallback position, this reality is reduced to an underlying class reality.) But even if Y is created by X, so that there is generating causation, it does not follow that Y continues to be moved, either wholly or at all, by X, so that there may not be sustaining and ongoing causation. In other words, even if we concede (and an argument would be necessary to prove this) that race is originally created by a class dynamic, this does not mean that race cannot attain what used to be called, in Marxist theory, at least a ‘relative autonomy’ (if not more), an intrinsic dynamic, of its own. Finally, it might be objected that ‘whites’ come in all classes, different genders, and divergent ethnicities, that there are power relations and great power differences among them, and that many or most whites are exploited also. But the claim that racial exploitation exists does not commit one to the claim that its benefits are all necessarily distributed equally, so if some whites get more than others, this is still consistent with the thesis. Nor does it require that all whites be equally active in the processes of racial exploitation – some may be both actors and beneficiaries, while others are just beneficiaries. And as should be obvious, claiming that racial exploitation exists does not imply that it is the only form of exploitation. All of us will have different hats, and so it will not merely be possibly but routinely the case that people are simultaneously the beneficiaries of one system of exploitation while being the victims of another, as with white women, for example. Society can be thought of as a complex matrix of interlocking and overlapping systems of domination and exploitation,22 and I am by no means asserting that race is the only one. My contention rather is that it is an under-theorized one and that it has repercussions for holding the overall system together that are not generally recognized.23 RACIAL EXPLOITATION VERSUS CLASS EXPLOITATION Let us contrast race and class exploitation, then. To begin with, assuming that the dominant position on the origins of race is correct, race is a product of the modern period,24 so that racial exploitation is limited to the last few hundred years and is much younger than class exploitation, and even more so by comparison with gender exploitation. Moreover, it is a historically contingent form of exploitation. While it is almost impossible to imagine the development of human society as having taken place without class and

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gender hierarchy and exploitation, the fact that race might never even have come into existence to begin with implies that racial exploitation might likewise never have happened. Suppose we use the terms R1 and R2 for the races involved, respectively dominant and subordinate. (Obviously, it is possible to have more than two races, but we will make this simplifying assumption.) Now, to begin with, it needs to be pointed out that the mere fact that two races are involved in relations of exploitation does not mean it is a relationship of racial exploitation. Racial exploitation is, as emphasized, just one variety of exploitation, and if it is a necessary condition that races be involved in the transaction, it is not a sufficient one. For it could be that the relations between R1 and R2 are simply standard capitalist relations. Imagine, say, that a group of capitalists from one racial group hires a group of workers from another racial group, but race plays no role in the establishment or particular character or reproduction of the relations of exploitation. This would not count as racial exploitation. What is also required is that the relations of race play a role in the nature and degree of the exploitation itself. What makes racial exploitation racial exploitation, then, is not merely that the parties to the transaction are racialized persons, but that race determines, or significantly modifies, the nature of the relation between them. (Note also that it is not necessary for racial exploitation that the parties in every transaction be of different races, for it could be that the overall structure of R2 subordination allows for a few R2s to participate in the exploitation of their fellow R2s, for example, as with the small number of black slaveholders in the pre-bellum South.) In what does this determination or modification consist? We are a bit handicapped here by the fact that the transaction has to be described in suitably general terms, encompassing (as I will soon argue) such a wide range of possibilities. But I suggest that the paradigm case of racial exploitation is one in which the moral/ontological/civic status of the subordinate race makes possible the transaction in the first place (i.e. the transaction would have been morally or legally prohibited had the R2s been R1s) or makes the terms significantly worse than they would have been (the R2s get a much poorer deal than if they had been R1s). And the term ‘transactions’ is being used broadly to encompass not merely cases in which R2s are directly involved, but also (and this is another significant difference from classic class exploitation) cases in which they are excluded. In Marx’s vision of class exploitation, surplus value is extracted through the expenditure of the labour power of the working class, so obviously the workers have to be actually working for this transfer to take place. But I want to include scenarios in which R2s are kept out of the transaction but are nonetheless exploited, because R1s benefit from their exclusion (e.g. in the case of racial restrictions on hiring). For me, then, racial exploitation is being conceptualized so as to accommodate both



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differential and inferior treatment of R2s in employment (e.g. lower wages) and their exclusion where they should legitimately have been included (e.g. the denial of the opportunity to get the job in the first place). Now, it needs to be noted that the role of R2 normative inequality is in sharp contrast to Marx’s vision of class exploitation under capitalism. In the class systems of antiquity and the Middle Ages, the subordinate classes did indeed have a lower normative status. But capitalism, as the class system of modernity, is distinguished by the fact that these distinctions of ascriptive hierarchy are levelled. So in Marx’s discussion of capitalism, the whole point of his analysis – what made capitalism different from slave and feudal modes of production – was that the workers nominally had equal moral status. Hence his sarcasm in Capital about the freedom and equality supposedly obtaining on the level of the relations of exchange, which are actually undercut at the level of the relations of production.25 But at least juridically, that freedom and equality are real. So it is not that the subordinated are overtly forced to labour for the dominant class (as with the slave or the serf), since such coercion would be inconsistent with liberal capitalism. Rather, it is the economic structure that (according to Marx anyway) coerces them, reduces their options, and forces them to sell their labour power. But in what I suggest is the paradigm case of racial exploitation, the R2s do not have equal status, which implies that liberal-democratic norms either do not apply to them at all, or do not apply fully. In both liberal and many Marxist theories of racism, this has usually been represented as a return to the premodern. But as various theorists, including myself, have argued, it is better thought of in terms of the modern, but within the framework of a revised narrative and conceptual framework that denies that egalitarianism is in fact the universal norm of modernity. In other words, to represent racism as a throwback to previous class systems accepts the mystificatory representation of the modern as the epoch when equality becomes the globally hegemonic norm, when in fact we need to reject this characterization and see the modern as bringing about white (male) equality while establishing non-white inequality as an accompanying norm.26 What justifies African slavery and colonial forced labour, for example, is the lesser moral status of the people involved – they are not seen as fully equal humans in the first place. If in the colonies blacks and browns are coerced by the colonial state to work, while in the metropole, according to Marxist theory, white workers are compelled by the market to work, this is not a minor but a major and qualitative difference.27 Now, one of the implications of this distinction is that, in comparison with class exploitation, racial exploitation in its paradigm form is straightforwardly wrong by deracialized liberal-democratic standards, a source of ‘unjust enrichment’. By contrast, in the Marxist tradition, as is well known, there has been a general leeriness about appealing to morality and a specific

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leeriness about appealing to justice, because of the dominant meta-ethical interpretation of Marx as a theorist disdainful of ethical norms in general and hostile to justice in particular as a supposedly transhistorical value.28 So some Marxists have repudiated moral argument in principle as a return to a supposedly discredited ‘ethical’ (as against ‘scientific’) socialism. But if one does want to make a moral case for socialism, some theorists have argued, one has to appeal to freedom rather than justice, or to social welfare, or to Aristotelian self-realization. A discourse of (negative) rights is not amenable to prosecuting the proletarian case insofar as bourgeois rights are being respected. (One can, of course, appeal to positive ‘welfare’ rights, but these are far more controversial in the liberal tradition.) And such an argument would have to rely on factual and conceptual claims that were obviously highly controversial even then – and far more so now in a post-Marxist world – about capitalist economic constraint undermining substantive freedoms, or people as a whole doing better under socialism. By contrast, the striking feature of demands for racial justice in the paradigm cases of racial injustice is that they can be straightforwardly made in terms of the dominant discourse, since the whole point of racial exploitation is that (at least in this paradigm form) it trades on the differential status of the R2s to legitimate its relations. For example, contrast the (white) workingclass struggle in the United States with the black struggle. The banner under which the latter has been organized has typically been the banner of equal rights: for civil rights – indeed for human rights – and for first-class rather than second-class citizenship. But it would be far more difficult to represent the struggle for socialism as a struggle for equal rights, since it would, of course, be denied that capitalist wage relations are a violation of workers’ rights. So in the first instance (in the period of overt white supremacy), what justifies racial exploitation is that the R2s are seen of lesser human worth, or zero worth. They have fewer rights, or no rights. A certain negative normative characterization of the R2s is central to racial exploitation in a way that it is not to class exploitation in the modern period. But apart from this paradigm form, there is also a secondary derivative form, which becomes more important over time (so there is a periodization of varieties of racial exploitation, with the salience of different kinds shifting temporally) and which arises from the legacy of the first kind. Here the inequity does not arise from the R2s still being stigmatized as of inferior status, or at least such stigmatization is not essential to the process. White supremacy is no longer overt, and the statuses of R1s and R2s have been formally equalized (e.g. through legislative change). Of course the perception of R2s as inferior, as not quite of equal standing, may continue to play a role in tacitly underwriting their differential treatment. But it is no longer essential to



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it. Rather, what obtains here is that the R2s inherit a disadvantaged material position that handicaps them – by comparison with what, counterfactually, would have been the case if they had been R1s – in the bargaining process or the competition in question. At this stage, then, it is possible for them to be treated ‘fairly’, by the same norms that apply to the R1 population. Nonetheless, it is still appropriate to speak of racial exploitation, because they bring to the table a thinner package of assets than they otherwise would have had, and so they will be in a weaker bargaining position than they otherwise would have been. Whites are differentially benefited by this history insofar as they have a competitive advantage that is not the result of superior innate ability and effort, but the inheritance of the legacy of the past. So unfairness here is manifest in the failure to redress this legacy, which makes the perpetuation of domination the most likely outcome. I would also contend (and will elaborate in the next section) that another crucial difference between class and racial exploitation is that the latter takes place much more broadly than at the point of production. For insofar as racial exploitation in its paradigm form requires only that the R2s receive differential and inferior treatment, this can be manifested in a much wider variety of transactions than proletarian wage labour. Society is characterized by economic transactions of all kinds, and if race becomes a normative dividing line running through all or most of these transactions, then racial exploitation can pervade the whole economic order. Moreover, it is not just the market that is involved, but the active role of the state, not merely in writing the laws and fostering the moral economy that makes racial exploitation normatively and juridically acceptable, but in creating opportunities for the R1s not extended to the R2s and making transfer payments on a racially differentiated basis. Finally, whereas it is, of course, Marx’s famous claim that capitalism needs to be abolished to achieve the end of class exploitation (since a capitalism that did not extract surplus value would liquidate itself), racial exploitation is at least in theory eliminable within a capitalist framework. That is, it is possible to have a non-racial capitalism, either because races do not exist as social entities within the system or because, though they do exist, there is no additional racial exploitation on top of class exploitation. Since we live in a post-Marxist world in which Marx’s vision seems increasingly unrealizable, with no attractive socialist models to point at, this conclusion is welcome because it implies that the struggle for racial justice need not be anticapitalist. One simple formulation of the political project would thus be the demand for a non-racial, or nonwhite-supremacist, capitalism. (Representing white supremacy as a system in its own right, with its distinctive modes of exploitation, has the virtue of clarifying what the real target is.) However, I qualified the term ‘eliminable’ with ‘in theory’. The counterargument that needs to be borne in mind is that while a non-racial capitalism

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could certainly have developed in another world, the fact that the capitalism in our world has been so thoroughly racialized from its inception means that racial inequality has long been crucial to its reproduction as a particular kind of capitalist formation. Logical distinctions in theory between U.S. capitalism and white supremacy are all very well, but their fusion in reality into the composite entity of white-supremacist capitalism makes any political project of attempting to separate the two a non-starter, in part because of the reciprocal imbrication of class and race, class being racialized and race being classed. I will not say anything more about this counterargument, but it should be noted as an important objection to the whole project. To summarize, then. By comparison with class exploitation, racial exploitation (i) benefits R1s generally, not just the capitalist class of the R1s; (ii) disadvantages R2s generally, not just the working class of the R2s; (iii) involves the causality and agency (albeit to different extents) of R1s besides the capitalist class; (iv) is in its paradigmatic form straightforwardly wrong by (deracialized) liberal norms; (v) includes economic transactions other than labour; (vi) typically involves the intervention and/or collusion of the state; and (vii) could in theory be eliminated within a capitalist framework. THE PAYOFF OF WHITENESS The discussion so far has been very abstract. Let us now move to the level of the concrete. In the United States, the members of the privileged race, the R1s, are, of course, whites. There will be a core whiteness that is relatively clear-cut and a penumbral whiteness that is fuzzier. A significant part of the burden of the whiteness literature over the past two decades has, of course, been the emphasis on the historically variant character of whiteness, and numerous books – most famously Noel Ignatiev’s How the Irish Became White but also Karen Brodkin’s How Jews Became White Folks, Matthew Frye Jacobson’s Whiteness of a Different Color, and, more recently, Nell Irvin Painter’s The History of White People – have tracked the shifting boundaries of the white population.29 And part of the motivation for aspiring to and becoming white is precisely so that one can benefit from this exploitation. David Roediger (adapting a phrase of W.E.B. Du Bois) famously speaks of ‘the wages of whiteness’, but taken literally, this would limit the payoff to the wage relation and the white working class.30 Instead one could also speak illuminatingly, focusing on different kinds of relationships, of whiteness as property, whiteness as a joint-stock company, the interest on whiteness, the rent on whiteness, the profit on whiteness, the residuals on whiteness, the returns on whiteness, and so on. The point is that racial exploitation is manifest in many more economic relations than just that of wage labour.



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Let us now go through some concrete examples, to put some flesh on these abstractions.31 • Native Americans are cheated out of their land. They are not given a fair price in the first place, or the original deal is reneged upon, or their understanding of what they were signing away was mistaken because of deliberate deceit, or it is simply expropriated, and so on. • Africans are enslaved at a time when slavery is dead or dying out in the West. (Obviously, if Africans were enslaved in the ancient and medieval world, as they were, there was nothing racial about this, since race played no role in their enslavement – indeed, at the time they did not even have a race.32) • Blacks freed from slavery are conscripted into ‘debt servitude’ as sharecroppers, from which they can never get free, since the plantation owner forces them to buy goods he provides, at higher prices, and weighs the cotton they produce himself at the end of the season, cheating them, so that at the end of each year they owe more than before. • Blacks are not permitted, or only permitted to a far lesser extent, to stake their claim on lands opened up by the settling of the West. (This illustrates the complexities of racial exploitation, since had they been allowed to do so, they would, of course, have been participating in the exploitation of Native Americans.) • Male Chinese immigrants are forced to pay a head tax for admission into the United States at a time when no such tax is imposed on white immigrants. • Black children are given an inferior education by state governments, with most of the resources going to white children. • Blacks are given higher sentences than whites for comparable crimes, so that they can supply a population of convict lease labour in the South. • Black enterprises are not permitted access to white markets. • Black enterprises are burned down or otherwise illicitly driven out of business by white competitors. • Blacks pay higher rent in the ghettos for housing. • Blacks pay more for inferior goods in the ghettos. • White workers refuse to admit blacks into their unions. • Blacks, Mexican Americans, and Asian immigrants hired in jobs are paid less than white workers would be. • Blacks, Mexican Americans, and Asian immigrants hired in jobs are not promoted or are promoted at slower rates and to lower levels than whites with comparable credentials. • Black candidates with superior credentials are turned down in favour of white candidates. • Black candidates with inferior credentials are turned down in favour of white candidates, when the reason blacks’ credentials are inferior is that

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they have had poorer schooling and poorer opportunities at every step of the way than they would have had if they were white. • Black performers are forced to sign contracts on worse terms than white performers because they have no alternative non-racist company to give them a better deal. • Black performers sign contracts with worse terms because they are not sufficiently educated to know better, and a history of racism explains their inferior knowledge. • Blacks and Latinos do not get a chance to hear about and compete for certain jobs in the first place because racially exclusionary word-of-mouth networks restrict notice of these jobs to white candidates. • Federal money earmarked for Native Americans ends up in white hands instead. • Transfer payments from the state (e.g. unemployment benefits, welfare, the GI Bill) are not extended equally to the black population, either through overt racial exclusion or because the terms are carefully designed to exclude certain jobs in which blacks are differentially concentrated. The Federal Housing Agency (FHA), established under the New Deal, discriminates against would-be black homeowners, thereby denying them access to the main route to wealth accumulation by the middle class. The Wagner Act and the Social Security Act ‘excluded farm workers and domestics from coverage, effectively denying those disproportionately minority sectors of the work force protections and benefits routinely afforded to whites’.33 Now, there are several things about this (very short) list that should be striking. One is the diversity of examples of racial exploitation. Far from being a theoretical appendage or minor codicil to Marxist class exploitation, racial exploitation is much broader and should long ago have received the theoretical attention it deserves. Marx’s focus was on just one relation because he was working within a framework in which it was assumed (since he was really talking about the white population) that normative status differentials had been eliminated, so that exploitation had to take place in a framework of the transaction of equals. Once we reject this crucial assumption, we should immediately recognize that the relation can manifest itself in any economic transaction, or any transaction with economic effects, and is thus ubiquitous. And this is one of the very important ways in which Marxism is Eurocentric: in its failure to conceptualize how broadly exploitation as a concept can be shown to apply once one takes the focus off the white population. Secondly, notice the cumulative and negatively synergistic effect of these transactions. It is not merely that blacks, for example, are exploited serially



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in different transactions, but that the different forms of exploitation interact with one another, exacerbating the situation. For example, blacks receive inferior education, thereby losing an equal opportunity to build human capital, thereby losing out in competition with white candidates, thereby having to take inferior jobs, thereby having less money, thereby being disadvantaged in dealings with banks that are already following patterns of mortgage discrimination, thereby being forced to live in inferior neighbourhoods, thereby having homes of lesser value, thereby providing a lower tax base for schooling, thereby being unable to pass on to their children advantages comparable to whites, and so on. It is not a matter of a single transaction, or even a series, but a multiply interacting set, with the repercussions continually compounding and feeding back in a destructive way. But what has been negative for blacks has been very beneficial for whites. The point of utilizing the political-economy category of ‘exploitation’, as against just talking with a liberal vocabulary about the ‘unfairness’ of discrimination against non-whites, is, as emphasized at the start, to shift the discussion from the personal to the social-structural, so that we can start seeing white supremacy as itself a system for which this payoff is the motivation. Melvin Oliver and Thomas Shapiro’s prizewinning Black Wealth/ White Wealth, judged by many to be one of the most important books on race of the last quarter-century, argues that to understand racial inequality, its origins, and its reproduction, wealth is a far better investigative tool than income. As they point out: Whites in general, but well-off whites in particular, were able to amass assets and use their secure economic status to pass their wealth from generation to generation. What is often not acknowledged is that the accumulation of wealth for some whites is intimately tied to the poverty of wealth for most blacks. Just as blacks have had ‘cumulative disadvantages’, whites have had ‘cumulative advantages’. Practically, every circumstance of bias and discrimination against blacks has produced a circumstance and opportunity of positive gain for whites. When black workers were paid less than white workers, white workers gained a benefit; when black businesses were confined to the segregated black market, white businesses received the benefit of diminished competition; when FHA policies denied loans to blacks, whites were the beneficiaries of the spectacular growth of good housing and housing equity in the suburbs. The cumulative effect of such a process has been to sediment blacks at the bottom of the social hierarchy and to artificially raise the relative position of some whites in society.34

And if one were to go back to slavery and Native American expropriation, and track the financial consequences of these institutions and processes for the respectively racialized populations, the size and ubiquity of the white payoff would be even greater. Whites will sometimes receive the payoff directly, by

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themselves participating in these transactions, but far more often they receive it indirectly – from their parents, from the state and federal governments, from the general advantage of being the privileged race in a system of racial subordination. The transparency of the connection between race and social advantage or disadvantage also has implications for social consciousness. Marx famously claimed that capitalism was differentiated from slave and feudal modes of production by the seemingly egalitarian nature of the transactions involved: the ‘fair exchange’ between worker and capitalist requires conceptual labour to be revealed as (allegedly) inequitable. As a result, the subordinated workers often do not recognize their subordination – capitalism is the classless class society. By contrast, the transparency of racial exploitation, certainly in its paradigmatic form, means that the R2s will usually have little difficulty in seeing the unfairness of their situation. If Marxist ‘class consciousness’ has been more often dreamed of by the left than found in actual workers, ‘racial consciousness’ in the subordinated has been far more evident historically. RACIAL JUSTICE The articulation of such a framework would, I claim, greatly facilitate discussions about racial justice. Instead of focusing exclusively on ‘racism’, our attention would shift to wrongful white benefit. The ideal for racial justice would, quite simply, be the end to current racial exploitation and the equitable redistribution of the benefits of past racial exploitation. Obviously, working out the details would be hugely complicated, and in fine points impossible, but at least on the level of an ideal to be simply stated, and by which present-day society could be measured, it would give us something to aim at. In dialoguing with the white majority, the imperative task has usually been to convince them that, independently of whether or not they are ‘racist’ (however that term is to be understood), they are the beneficiaries of a system of racial domination and that this is the real issue, not whether or not they have good will towards people of colour or whether they owned any slaves. The concept of racial exploitation is designed to bring out this central reality. Relying not on controversial claims about surplus value, it derives its legitimacy from the simple appeal to the very normative values (albeit in their inclusive, race-neutral incarnation) to which the white majority already nominally subscribes. And because it encompasses a derivative as well as a primary form (exploitation inhering not in the assumption of unequal normative status but in the continuing intergenerational impact of the unfair distribution of assets resulting from that original normative inequality), it can handle transactions seemingly just but actually inequitable because of the legacy of the past.



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That is not to say that it will not be very controversial; obviously it will be very controversial and will be militantly and furiously opposed. But such hostility goes with the territory and will greet all attempts to advance the struggle for racial justice, no matter what conceptual banner is chosen to fly over it. At least the advantage of selecting this framework is that it appeals to norms central to the American tradition (if not normally extended to blacks) and a factual picture for which massive documentation, at least in broad outline, can be provided. In addition, the macro, big-picture, social-systemic analysis – the emphasis on the structural dynamic – locates it in the same conceptual space as the famous ‘basic structure’ that, since Rawls,35 has been the central focus of discussions of social justice. Thus, we would be better positioned, as I emphasized at the start, to pose the simple and crucial challenge to mainstream white liberal theorists: What if the basic structure is itself unjust because it is predicated on racial exploitation? Moreover, another signal virtue of approaching things this way is that it would provide a more realistic sense of the obstacles to achieving racial justice. It is a standard criticism of normative political philosophy, especially from non-philosophers, that the authors of these inspiring works give us no indication at all as to how these admirable ideals are to be realized, of how we are to get from A to Z. By contrast, in the left tradition – at least the non-amoralist strain of it – the claim has always been that the strength of a materialist approach is that it not only articulates ideals, but shows how they can be made real, that it unites description and prescription by identifying both the barriers to a more just social order and the possible vehicles for overcoming those barriers. If race and racism are thought of in the standard individualistic terms of irrational prejudice, lack of education, and so on, then their endurance over so many years becomes puzzling. Once one understands that they are tied to benefit, on the other hand, the mystery evaporates: racial discrimination is, in one uncontroversial sense of the word, ‘rational’, linked to interest. Studies have shown that the major determinant of both white and black attitudes on issues related to race is their respective perceptions of their collective group interests – of how, in other words, their group will be affected by whatever public policy matter is up for debate.36 (The role of group interests in determining consciousness, which was Marx’s hoped-for engine of proletarian revolution, is far more convincingly borne out, at least in the United States, for race than it is for class.) Rational white perception of their vested group interest in the established racial status quo can then be understood as the primary reason for their resistance to change. But, as with orthodox left theory, a materialist, or at least realist, privileging of group interests as the engine of the social dynamic also opens up the possibility of progressive social change. The natural constituency is, of

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course, the population of colour, who would be the obvious beneficiaries of the end or considerable diminution of white supremacy. But given their minority status both in straightforward quantitative terms, and, more importantly, the qualitative dimension of access to social sources of power, they will clearly not be able to do it on their own. I suggest there are two main political strategies for recruiting a larger or smaller section of the white population to the struggle. The centrist strategy would try to appeal to the white population as a whole, the argument being that in a sense racism hurts everybody, given the costs of racial exclusion (the expenses of incarcerating the huge, disproportionately non-white prison population; the untapped resources of marginalized racial groups), and that from an efficiency point of view, the overall GDP would be greater in a non-racist United States. The left strategy comes in a classic Marxist version as well as a milder, leftliberal/social-democratic version. The plan here would be to disaggregate the white population and target in particular those whites who benefit less from white supremacy: the working class, the poor, the unemployed. One would try to persuade them that they – or perhaps they and their children (the appeal might be more convincing in terms of long-term outcomes) – would be better off in an alternative non-racial social order that combined ‘class’ justice with ‘racial’ justice. For classic Marxism, this would have been socialism/ communism; for left-liberals, it would be a social-democratic redistributivist capitalism (‘socialism’ as ‘democratic socialism’) that centrally incorporated measures of corrective racial justice.37 So the idea would be to appeal to group interests as well as justice, the latter not, alas, having historically proven itself to be that efficacious as a social prime mover. White workers, for example, would be asked to compare their present situation not to blacks in this actual racist system but to what their situation (and that of their descendants) would be in a counterfactual non-racial system, the presumption being that a convincing case can be made that though they do gain in this present order, they lose by comparison to an alternative one. Given the tremendous transfer of wealth to the upper echelons of society in recent years, which has provoked even conservative commentators to use the term ‘plutocracy’, it might be that there has not in decades been a more favourable environment for such a political appeal than today.38 Of course, some might feel, understandably enough, that there is something ignoble, perhaps even demeaning, about such arguments and that the case for racial justice should be made on moral grounds alone. I am in sympathy with such a feeling, but I want to differentiate two ways of presenting these arguments: (i) the demand for racial justice cannot be justified on purely moral grounds, and (ii) the motivation for the white majority to implement racial justice cannot be activated on purely moral grounds. Endorsing the



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second does not commit one to endorsing the first. The struggle for racial justice is indeed a noble struggle, and on moral grounds alone its completion is indeed justifiable. But unfortunately – whether as a general truth about human beings or a more contingent truth about human beings socialized by racial privilege – I do not think the historical evidence supports the view that many whites will be effectively motivated purely by such considerations. Derrick Bell’s ‘realist’ ‘interest-convergence’ thesis seems a more accurate diagnosis and prognosis, that is, that most whites only support such movements when they perceive them as being in their own interests.39 I want to conclude by pointing out a possible obstacle to interest-based theoretical optimism about the possibilities for the realization of a non-racial social order. The multidimensionality of the payoff from whiteness means that it is possible for the benefits to come apart and be in opposition to one another in a way not found in straightforward working-class computations of gain under socialism. Material benefit does not necessarily include any relational aspect to others, but benefits of a political or status or cultural or ‘ontological’ kind do. In other words, if it has become important to whites that they be politically dominant, have higher racial social status, enjoy the hegemonic culture, and be positioned ‘ontologically’ as the superior race, then the threatened loss of these perks of whiteness may well outweigh for them the gains they will be able to make in straight financial terms in a deracialized system. One can only be white in relation to non-whites. So some or many whites may calculate, consciously or unconsciously, that by this particular metric of value they gain more by retaining the present system than by trying to alter it, even if by conventional measures they would be better off in the alternative one. It may well be, then, that apart from all the other problems to be overcome, this simple fact alone is powerful enough to derail the whole project. Nonetheless, the important thing is obviously to get the debate going, so that discussion of these issues in an increasingly non-white United States can move from the margins to the mainstream. Facing up to the historically white supremacist character of the society and the polity will be an important conceptual move in facilitating this debate, and philosophy, committed by its disciplinary pretensions to both Truth (getting it right) and Justice (making it right), can and should play an important role in bringing about this paradigm shift, even if – or rather especially since – it has been culpably absent so far. NOTES 1. Peggy McIntosh, ‘White Privilege: Unpacking the Invisible Knapsack’ (1989), online. This essay is an excerpt from a longer 1988 piece that dealt with male privilege also.

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2. To be fair, McIntosh explicitly declares that she is only setting out to uncover ‘the daily effects of white privilege in my life’, not investigating deeper socialstructural issues. For an interview with her, see Joshua Rothman, ‘The Origins of “Privilege”’, The New Yorker, 12 May, 2014. (online edition). 3. For a classic essay, see W.E.B. Du Bois, ‘The Souls of White Folk’, in Du Bois, Darkwater: Voices from Within the Veil ([1920] New York: Oxford University Press, 2007). 4. Karl Marx, Capital, vol. I, trans. Ben Fowkes (Harmondsworth: Penguin, 1976). 5. See Nancy Holmstrom, ‘Exploitation’, Canadian Journal of Philosophy 7, no. 2 (1977): 353–69. 6. But see John Roemer, A General Theory of Exploitation and Class (Cambridge, MA: Harvard University Press, 1982). 7. Alan Wertheimer, Exploitation (Princeton, NJ: Princeton University Press, 1996), ix. 8. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999). 9. Wertheimer, Exploitation, 8. 10. Gary A. Dymski, ‘Racial Inequality and Capitalist Exploitation’, in Kai Nielsen and Robert Ware, eds., Exploitation (Atlantic Highlands, NJ: Humanities Press, 1997), 335. 11. See Cedric Robinson’s Black Marxism: The Making of the Black Radical Tradition ([1983] Chapel Hill, NC: University of North Carolina Press, 2000). 12. See the introductory essays by Ashley (‘Woody’) Doane and Margaret Anderson in Doane and Eduardo Bonilla-Silva, eds., White Out: The Continuing Significance of Racism (New York: Routledge, 2003). 13. Cheryl I. Harris, ‘Whiteness as Property’, Harvard Law Review, 106 (1993): 1709–91; Melvin L. Oliver and Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality, 10th anniversary ed. (New York: Routledge, 2006) (orig. ed. 1995); George Lipsitz, The Possessive Investment in Whiteness: How White People Profit from Identity Politics (Philadelphia: Temple University Press, 1998); Linda Faye Williams, The Constraint of Race: Legacies of White Skin Privilege in America (University Park, PA: Pennsylvania State University Press, 2003); Ira Katznelson, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America (New York: W.W. Norton, 2005); Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock In White Advantage (New York: New York University Press, 2014); Andre L. Smith, Tax Law and Racial Economic Justice: Black Tax (Lanham, MD: Lexington Books/Rowman & Littlefield, 2015). 14. See, for example: Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge, MA: Belknap Press, 2013); Sven Beckert, Empire of Cotton: A Global History (New York: Knopf, 2014); Edward E. Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (New York: Basic Books, 2014). 15. In Capital, Vol. I, Marx does, of course, famously locate primitive accumulation in Amerindian ‘extirpation, enslavement and entombment in mines’ and ‘the



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conversion of Africa into a preserve for the commercial hunting of blackskins’ (p. 915). But the ongoing racialized nature of capitalism, with all its material and psychological implications, is not a central theme for him, nor for most of his successors in the orthodox Marxist tradition. 16. The issue has resurfaced periodically in American public debate since the end of the Civil War, most recently as a result of Ta-Nehisi Coates’s widely discussed article in The Atlantic (June, 2014), ‘The Case for Reparations’, available online. 17. Charles W. Mills, ‘White Supremacy as Sociopolitical System’, in Mills, From Class to Race: Essays in White Marxism and Black Radicalism (Lanham, MD: Rowman & Littlefield, 2003). 18. George M. Fredrickson, White Supremacy: A Comparative Study in American and South African History (New York: Oxford University Press, 1981). 19. Charles W. Mills, The Racial Contract (Ithaca, NY: Cornell University Press, 1997). 20. This is the ideal sanitized Kant, not the actual racist Kant who himself endorsed slavery and colonialism for most of his life; for details, see Charles W. Mills, ‘Kant and Race, Redux’, Graduate Faculty Philosophy Journal 35, nos. 1–2 (2014): 125–57. 21. Sally Haslanger, Resisting Reality: Social Construction and Social Critique (New York: Oxford University Press, 2012). 22. Ann E. Cudd, Analyzing Oppression (New York: Oxford University Press, 2006). 23. I would claim, though there is no room to defend the thesis here, that racial identity has historically trumped gender and class identity, so that white women and the white working class have generally distanced themselves from the struggles of non-white women and workers of color. 24. George M. Fredrickson, Racism: A Short History (Princeton, NJ: Princeton Classics, 2015); orig. ed. 2002. For an opposing view, see Benjamin Isaac, The Invention of Racism in Classical Antiquity (Princeton, NJ: Princeton University Press, 2004). 25. Marx, Capital, vol. I, 280. 26. Thus the main point of Domenico Losurdo’s Liberalism: A Counter-History, trans. Gregory Elliott (New York: Verso, 2011) is that liberalism, the supposedly emancipatory political philosophy of modernity, was originally illiberal for the majority of the planet’s population (white women and people of colour), denying them equal normative status. 27. In ‘The Souls of White Folk’, Du Bois demarcates ordinary capitalist exploitation from the imperialist racial exploitation of the late nineteenth/early twentieth century, when ‘White supremacy was all but world-wide’: ‘There is [now] a chance for exploitation on an immense scale for inordinate profit, not simply to the very rich, but to the middle class and to the labourers. This chance lies in the exploitation of darker peoples. ... Here are no labour unions or votes or questioning onlookers or inconvenient consciences. These men may be used down to the very bone, and shot and maimed in ‘punitive’ expeditions when they revolt. ... [A] Black Man has no rights which a white man is bound to respect. There must come the necessary despisings

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and hatreds of these savage half-men, this unclean canaille of the world – these dogs of men. All through the world this gospel is preaching. It has its literature, it has its priests, it has its secret propaganda and above all – it pays! There’s the rub, – it pays. ... [A] hundred ...things which dark and sweating bodies hand up to the white world from their pits of slime ... pay and pay well, but of all that the world gets the black world gets only the pittance that the white world throws it disdainfully’. Du Bois, Darkwater, 21–22. 28. See, for example: Marshall Cohen, Thomas Nagel, and Thomas Scanlon, eds. Marx, Justice and History (Princeton, NJ: Princeton University Press, 1980); Steven Lukes, Marxism and Morality (New York: Oxford University Press, 1985). 29. Noel Ignatiev, How the Irish Became White ([1995]: New York: Routledge, 2008); Karen Brodkin, How Jews Became White Folks and What That Says About Race in America (New Brunswick, NJ: Rutgers University Press, 1998); Matthew Frye Jacobson, Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Cambridge, MA: Harvard University Press, 1998); Nell Irvin Painter, The History of White People (New York: W.W. Norton, 2010). 30. David R. Roediger, The Wages of Whiteness: Race and the Making of the American Working Class, rev. ed. (New York: Verso, 2007). 31. See the sources cited in note 13, and also Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005). 32. Slavery in the medieval Islamic world, which some scholars have argued differentiated black from non-black slaves, may be an exception: Bernard Lewis, Race and Slavery in the Middle East: An Historical Enquiry (New York: Oxford University Press, 1990). 33. Lipsitz, Possessive Investment, 5. 34. Oliver and Shapiro, Black Wealth/White Wealth, 51. Numerous stories on the racial wealth gap can be found online, with varying dates and different figures given. The most recent data available appear to be from 2013. A Pew Research Center report says, ‘The wealth of white households was 13 times the median wealth of black households in 2013. ... Likewise, the wealth of white households is now more than 10 times the wealth of Hispanic households. ... The current gap between blacks and whites has reached its highest point since 1989, when whites had 17 times the wealth of black households. The current white-to-Hispanic wealth ratio has reached a level not seen since 2001’: Rakesh Kochhar and Richard Fry, ‘Wealth inequality has widened along racial, ethnic lines since end of Great Recession’, Pew Research Center, 12 December, 2014, 1–2 (online). 35. Rawls, Theory of Justice. 36. See the highly instructive work of Donald R. Kinder and Lynn M. Sanders, Divided by Color: Racial Politics and Democratic Ideals (Chicago: University of Chicago Press, 1996). 37. The failure of Bernie Sanders’s recent (as I write this in summer 2016) ‘democratic socialist’ campaign for the Democratic Presidential nomination can be argued to stem in part from its opting for a putatively ‘universalist’ left approach that dissolved racial injustice into class injustice, without giving sufficient attention to the



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former’s distinctive features. Apart from the African American community’s longstanding connection to the Clintons, political mis-diagnosis contributed significantly, I would suggest, to blacks’ general alienation from Sanders’s programme. 38. Thomas Piketty, Capital in the Twenty-First Century, trans. Arthur Goldhammer (Cambridge, MA: Belknap Press, 2014). 39. Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1989). See also Philip A. Klinkner and Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America (Chicago: University of Chicago Press, 1999), which provides some empirical historical evidence for this claim.

Part II

EXPLOITATION AND INEQUALITY GESTATIONAL AND CARE LABOUR

Chapter 5

Exploitation, Commodification, and Equality Anne Phillips

In a recent article on global surrogacy, Vida Panitch takes up the challenge of identifying what is exploitative in the global trade in reproductive services.1 In particular, she examines what is exploitative about the reliance on countries like India, where solutions to the infertility problems of wealthier couples are met by women who are poorer ‘both relatively and absolutely than surrogates in the USA’.2 India has been known, for some time, as the transnational hub for the global trade in surrogacy, to the point, indeed, where its reputation began to embarrass the government: in 2012, same-sex couples were banned from using India’s surrogacy services; in 2015, the government announced that clinics could no longer accept clients who were resident outside the country. The effect of the latter announcement remains to be seen, but for the moment, Panitch’s argument is still pertinent. Surrogates in India are paid much less than their counterparts in wealthier countries; they are also subjected to tighter bodily surveillance, including often having to live for the duration of the pregnancy in highly regulated hostels attached to the infertility clinics.3 Under Indian legislation, they have no right to change their mind about relinquishing the child (or children) after the birth. Reported payments range between $1,500 and $10,000 per pregnancy, though averaging around $3,000. This is both considerably less than the total price paid by the clinics’ clients (closer to $50,000), and considerably less than the $25,000 to $40,000 typically paid to U.S. surrogates (clients in the United States are likely to pay $100,000 in total). In these circumstances, we might feel agnostic about whether U.S. surrogates are exploited, but pretty clear that Indian surrogates are. If the fairness of an arrangement is at least partly judged by reference to what people in other parts of the world receive for a service (Panitch argues that it is), then Indian surrogates are significantly underpaid. If we compare, moreover, the relative capacity of women in India and those in the United 99

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States to negotiate better terms, the former are at a serious disadvantage. If the potential Indian surrogate attempts to bargain, ‘the offer will just be made to someone who will not’.4 By criteria of both justice and consent, Panitch argues, these women are exploited. In defending her claim of exploitation, she addresses objections that have come out of a number of ethnographically informed studies of the Indian surrogacy industry, which mostly refuse the normative question (‘what, if anything, is wrong with commercial surrogacy?’) to focus on the experience of women’s lives as revealed through their own narratives. Amrita Pande, one of the leading figures in this move, has said that ‘where surrogacy work is rapidly becoming a survival strategy for many women, it makes little analytical sense to battle about the morality of surrogacy’.5 ‘The market for wombs is not good or evil. It simply exists’.6 From this perspective, the preoccupation with ethical judgement – and presumption that there is a universal standpoint from which to make such judgements – has been said to reflect a Western ‘occidentalizing’ gaze.7 It imports the confidence of its ethical assumptions without bothering to engage with how the practice is experienced and lived, or what would happen to the women if it were banned. Panitch is sympathetic to these objections, but addresses them by drawing a firm line between what she calls the commodification and the exploitation view. In her account, the moralizing that the ethnographers object to is mainly associated with the first of these: with the view, that is, that in selling one’s reproductive services, one is making a commodity of something that should not be regarded as such, ‘reduc(ing) a human agent to the dollar value of her body parts’, and engaging in a sale that is, in some important sense, the sale of a self.8 It was this critique, she claims, that underpinned the arguments of those Western feminists who wrote about surrogacy in the wake of the notorious Baby M case, and she cites Elizabeth Anderson, Christine Overall, Carole Pateman, and Mary Warnock as examples. The same kind of moralizing, however, does not bedevil the exploitation critique. We can deny the commodification view and still make an exploitation claim.9 Both critiques clearly involve claims of moral harm, but it is only the first, she argues, that treats the findings of ethnographic studies as irrelevant, proceeding by way of a ‘purely conceptual, and indeed conceptually Western, analysis of agency, value, and self’.10 The second takes seriously the views of the Indian surrogates about their own lives, and grounds its analysis of exploitation in their accounts of feeling disposable and lacking bargaining power. Part of the appeal of this distinction is that it promises to disentangle what can be very different reasons for worrying about the development of commercial surrogacy. In the process, it should help clarify whether objections refer to the specific conditions under which surrogacy is practised (excessively low pay to surrogates, intrusive regulation of the body, coercive background



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conditions), or to the practice per se. It then parallels arguments that have been made as regards the permissibility of markets in live human organs. In one illustration, Charles Erin and John Harris have suggested that the main concern underlying popular resistance to markets in human kidneys, stem cells, or gametes is the perception that the rich buy while the poor and desperate sell. But what if the only organization licensed to purchase this material were something like the UK’s National Health Service? What if organs were allocated to patients, not on the basis of purchasing power, but strictly according to medical need? What if the purchasing zone were restricted to neighbouring countries with comparable income levels so as to reduce the prospect of people in rich countries preying on those in poor?11 With these conditions in place, they argue, it would no longer make much sense to talk of exploitation, and the ethical objections would fall. If one regards commodification as the problem, this kind of reform provides no solution, but if exploitation is the problem, we can look to changes in conditions that will make the exchanges non-exploitative. As regards commercial surrogacy, this would suggest focusing attention on conditions in the more overtly problematic Indian industry, where it is pretty clear to most observers that there is room for reform, rather than continuing to question the legitimacy of the equivalent industry in the United States. The typical surrogates in the United States are working class, but they are not the poorest of the poor: apart from anything else, fertility clinics will not recruit women who are on welfare benefits. Though they take up surrogacy for reasons similar to their Indian counterparts (to raise money to build a house, pay off a debt, or finance a child through education), studies rarely indicate them as ‘driven’ by economic necessity. Relationships with commissioning parents are generally good, and in a range of empirical studies carried out in recent years, few of the women who have acted as surrogates report difficulties in relinquishing the baby after birth.12 Given some of the alternatives available in the U.S. economy, working conditions for surrogates are reasonably good. The language of exploitation certainly strikes an odd note as applied to the woman who gave birth to two children for Elton John and David Furnish, who continues to see the couple and their children in a seemingly amicable arrangement, and who was (presumably) well paid for her reproductive services. In the immediate aftermath of the Baby M case, it was the enforceability of surrogacy contracts that was the sticking point for most feminist commentators. The weight of feminist opinion was against commercial surrogacy, though there was always a significant minority (this may now be a majority) who were swayed by arguments about women having the right to do as they chose with their own bodies, or thought it inconsistent to treat the exchange of money for reproductive services as significantly different from the exchange of money for any other bodily service. Some further argued that it was an

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insult to women’s rational capacities to suggest that they could not make enforceable contracts about the use of their bodies,13 but mostly, this was a step too far even for those torn between competing arguments.14 The idea of holding a woman to a contract undertaken before the pregnancy began was felt to ignore the nature and intensity of the experience, and to treat the pregnant woman, not as a person in a relationship to a growing foetus/baby, but as the container for someone else’s child. It was this, rather than claims about exploitation, that most dominated discussion. This does indeed sound closer to a commodification critique. Since then, surrogacy has been increasingly normalized in the United States, amidst neoliberal celebrations of market rationality and individual choice that make it seem terribly old-fashioned to object. The vast majority of arrangements no longer use the eggs of the surrogate, thereby breaking the genetic connection that had been an important component in the Baby M case. The language of exploitation suggests a comparison between the ordinarily troublesome and the exploitative unfair (not everything we dislike about our work counts as exploitation), and on most comparisons, working as a surrogate in the United States looks a relatively favourable way to earn one’s living. Meanwhile, the language of commodification can sound absurdly exaggerated in a world where pretty much everything has been commodified. Perhaps, as Panitch suggests, we should focus on what it is about conditions in the transnational surrogacy trade that might justify the term exploitation, rather than continuing with moralistic claims about how terrible it is to be ‘selling oneself’? I have written previously about commercial surrogacy, in the context of a critique of underlying models of self and body ownership that help legitimate markets in bodily services and body parts.15 I argued there that treating labour simply as property normalizes what remains a power relation, and that argument continues to inform the arguments in this essay. But I want now to take a different tack, I want to challenge the now commonly invoked distinction between exploitation and commodification critiques (a distinction almost always introduced to diminish the power of the second); and argue that it is not so easy to separate out these two, because both are closely aligned to notions of equality. I take issue with the suggestion that commodification critiques deal in absolutes while exploitation critiques deal in continuums, and argue that both involve a point at which the ordinarily troubling turns into the seriously problematic. Both, that is, acknowledge a range running from the more benign to the thoroughly unacceptable, and both draw on intuitions about what it is to treat others as equals in their assessments of when that line has been crossed. The standard we implicitly apply in making that distinction is, I claim, a standard of what we normally owe to those we regard as our equals. If so, it is not so easy to sustain a contrast between exploitation and



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commodification, for elements of both are implicated in the critique. I end with an argument that relocates the debate about commercial surrogacy away from the individuals participating in it to the more systemic level. As well as asking whether X is being exploited or Y is being commodified, we need to consider the implications of commercial surrogacy for relations of equality as a whole. IS COMMODIFICATION MORE ‘ABSOLUTIST’ THAN EXPLOITATION? I start with the suggestion that an exploitation critique is to be preferred to a commodification critique because it is less inherently moralized. The contrast represents commodification critiques as absolutist, independent of context, unresponsive to conditions, and unresponsive to the participants’ perceptions of these conditions. For a commodification critic, we are told, there are just certain categories of thing or being that should not be for sale. Now, it is true that a commodification critique does often involve a substantive claim about inherent value, which then provides the dividing line from other things or beings or activities that can more legitimately be bought and sold. We don’t (nowadays) think it legitimate to buy and sell people, though most still think it legitimate to buy and sell animals. This suggests a distinction between the inherent value of human and non-human animals. We don’t think of love as something that can be bought and sold, though many are quite happy to buy sex; this too seems to rely on a distinction between love and sex. For the followers of Henry George, it was land that should not be commodified, and while George himself was too much of a realist to think we could stop people treating the land as a commodity, he argued that any increases in its ‘value’ should be returned to all of us in the form of a land tax. For many indigenous peoples, the land has spiritual as well as productive significance, and for this reason cannot be treated as a commodity. I accept, then, that there is a category of commodification critique that takes a more absolutist form, and regards it as inherent in the nature of X that it either cannot or must not be traded. The charge is less convincing, however, when applied to those who have explored the commodification of bodily services, including the development of commercial surrogacy. Much of this literature starts from the corporeal nature of all work, and is then very much alive to the difficulties of employing ‘the body’ to distinguish what can and cannot be sold. There is no employment on earth that does not, in some sense, require us to put our bodies to the service of our employers, nothing so entirely cerebral that we can do it without bringing our body along, and there are many occupations in which the body is not just incidental but almost

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the entire point.16 If we were to argue that there is something about the body that makes it ethically unacceptable to take payment for bodily services, we would have to rule out a good deal more than commercial surrogacy. The point I would stress is that most people who write about the commodification of body parts or bodily services are well aware of this continuum, and do not just wade in with highly moralized assertions about what should or should not be allowed. In her critique of surrogacy contracts, for example, Carole Pateman quite explicitly associates these with ‘other’ wage contracts, all of which, in her analysis, involve some level of personal subordination, and all of which involve a subordination that is experienced through the body. Her analysis is framed by an understanding of persons as embodied and of labour as embodied labour.17 Whatever it is that distinguishes commercial surrogacy from being a professional athlete or a miner or an office worker, it cannot be said that in surrogacy we are paid for the use of our bodies. What can be said, more plausibly, is that surrogacy is an ‘extreme example’ of the corporeality of all work, one in which (to quote here Amrita Pande) ‘the body of the worker is the fundamental and ultimate site, resource, requirement, and (arguably) product’.18 In this framing, surrogacy occupies the extreme edges of a continuum that in its lesser forms we barely even notice. Pateman has sometimes been held to account – including by Pande – for her suggestion that a woman’s reproductive labour is ‘more integral’ to her identity than other kinds of labour,19 but the notion of a continuum, in which some forms of labour are more expressive of who we are than others, strikes me as relatively uncontroversial. It would be contentious, certainly, to claim that what is most integral to female identity is the same for all women; but a more modest claim about some forms of labour being more integral to identity than others, and some forms of employment therefore experienced as more controlling and intrusive than others, goes almost without saying. In her critique of commodification, Margaret Radin also rejects a compartmentalized approach that seeks to divide up the social world into things that can be marketized and those that should be off limits. She criticizes what she terms universal commodification, and argues that ‘systematically conceiving of personal attributes as fungible objects is threatening to personhood because it detaches from the person that which is integral to the person’.20 But she does not think we can address this, as it plays out, for example, in the sale of sexual and reproductive services, simply by banning particular kinds of market. In her argument, there are many things we quite normally and happily think of as marketable commodities – houses, cars, and wedding rings figure among her examples – that simultaneously have important non-market significance to our lives. What we need is not so much a separation of the world into those things that can be bought and sold and those that must not,



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but regulatory measures (in pretty much all markets) that block the possibility of full commodification, and keep alive a more humane vision of the significance goods and activities have for people. There is, in other words, much more of a continuum in Radin’s and Pateman’s arguments (and, I think, my own) than one might associate with a commodification critique, and on this score, less to choose between the exploitation and commodification arguments. In exploitation critiques, the continuum is more self-evident, for in most usages, the focus is on differentiating between the fair and the exploitative, with the assumption that the majority of market transactions escape the latter label.21 When people charge that working conditions in clothing factories in Bangladesh are exploitative, they recognize many common features with conditions in Birmingham or Bristol, but claim that in some respect or other, the conditions in the Bangladesh factory have crossed the line. So while Robert Goodin is probably right when he says that exploitation is not a scalar notion – ‘people are either exploited or they are not’22 – we typically employ the term when examining a range of broadly similar situations and transactions, some of which, in our assessment, are to be deemed exploitative. The point is that both commodification and exploitation critiques grapple with continuums rather than absolutes, that both lend themselves to degrees (a practice can be more or less exploitative, a commodification can be full or partial), and that within this continuum, both involve some notion of crossing a line. CROSSING THE LINE: WHAT COUNTS AS A REASONABLE DEAL? What provides the basis for this? Most of those writing on exploitation agree that you can be exploited and yet better off materially than you would otherwise have been, so it does not appear that this is the crucial divide. Indeed it can often be said that the person being exploited gains more from the deal than the person exploiting. As Allen Wood has put it, ‘Someone who is propertyless and starving has a lot to gain by striking a deal with an employer who is willing to offer bare subsistence in exchange for long, hard labour under dangerous conditions – and a lot to lose (namely, life itself) if no such exploitative bargain is in the offing’.23 With commercial surrogacy, the gain to the surrogate may be the life of a sick child whose medical costs will be covered by the payment, and once we put that into the balance, we might well say that the ‘exploited’ gains more than the ‘exploiter’. We cannot identify exploitation just by counting up the respective costs and benefits of the parties to the agreement; a fortiori, we cannot identify commodification in this way.24

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There is also increasingly a consensus that one cannot identify exploitation simply through the existence or otherwise of consent: a recognition, that is, that one can be exploited in an arrangement to which one has given one’s informed consent; and a queasiness about defining ‘free consent’ so strictly that any amount of economic or emotional pressure turns it into coercion.25 So far as employment is concerned, most of us do things we would prefer not to do because we have to pay the bills. If this were to count as coercion, it covers too large a swathe of our working lives. We also do many things we would not otherwise choose to do because we fear losing face or losing friends or losing love. Again, if this were to count as coercion, it covers too much of human life. Anyone not on a desert island is continually pressured by the needs and emotions of others, and some of this pressure may well be unfair, if, for example, it fails to take account of our own needs and vulnerabilities. But feeling unfairly pressured is not the same as losing the capacity to say ‘no’, so what is the point at which we might want to say we are being exploited? One of the compelling contributions Alan Wertheimer has made to our understanding of exploitation is his distinction between taking advantage of unfairness and taking unfair advantage (of unfairness).26 In this framing, it is not necessarily exploitative to take advantage of other people’s relative poverty to persuade them to agree to a transaction they would prefer to avoid. The exploitation comes in (the line is crossed) at the point where ‘particular defects’ in decision-making capacities lead people to agree to a transaction without fully realizing what a bad deal it is, or ‘special vulnerabilities’ in their situation lead them to accept a much lower payment than would otherwise have been the case. There is plenty of unfairness around, but not all of it is exploitation. We arguably take advantage of (social) unfairness and (individual) vulnerabilities whenever we pay someone less than we earn to do a job both we and they would prefer not to do. When I pay someone to clean my house, I take advantage of a socially validated pay scale that I personally regard as unfair. I also take advantage of the individual vulnerability of the cleaner, who has fewer educational qualifications and limited alternative ways of making a living. As I read Wertheimer, it is when I take additional advantage of that unfairness and vulnerability to pay her below a living wage that I exploit her. To apply this to surrogacy, whatever U.S. surrogates might claim about the pleasure they take in giving ‘the gift of life’ (this being the favoured discourse of the recruiting agencies), they would not offer their services if they earned as much as the commissioning clients. But while their choice of occupation reflects income inequalities that we or they might think generally unfair, that need not make it exploitation. In the case of the Indian surrogates, by contrast, if the urgency of their needs means they cannot even begin to negotiate their terms of employment, we might want to say (with Panitch) that the agencies are taking not just advantage, but unfair advantage.



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The question remains: How and on what basis are we drawing this line? There are two main offerings in the existing literature: either some version of a ‘fair price’, usually a derivative of existing market prices; or some version of fair conditions of negotiation, a derivative of reasonably equitable rather than ideal equality between the negotiators. Wertheimer finds the relevant criterion in the first of these – in a hypothetical market price. This is a market price, but hypothetical, because if there is some constraint on competition, it might be higher than we find in existing markets; and it is a test of normality rather than an ideal of fairness, the ‘price at which neither party takes special unfair advantage of particular defects in the other party’s decision-making capacity or special vulnerabilities in the other party’s situation’.27 Note that the argument depends on some rough consensus about what is normal. It therefore works reasonably well with my cleaner example. Lots of people work as cleaners, in both public and private employment, and this gives us some idea of the ‘normal’ range of pay. Lots of people employ cleaners, and therefore have to grapple with questions of what counts as fair payment. Apart from those who think it per se exploitative to pay someone else to clear up our mess after us, we can mostly make sense, in this context, of a distinction between taking advantage of unfairness and taking unfair advantage of unfairness. None of us can single-handedly solve all the inequalities of distribution, but we can try to pay what, within general conditions of inequality and arguably unfairness, is a ‘fair’ price. The hypothetical market price works less well with body trades. First, where body trades have been subject to legal restrictions or bans, there is no globally competitive market to suggest the fair price. There is not even a nationally competitive one, for the work may be associated with levels of stigma that significantly affect the supply. From Pande’s work on India, for example, we know that the stigma attached to surrogacy leads many to conceal their work from their neighbours, and sometimes from their children. (In the latter case, they then have to avoid seeing their children for the duration of the pregnancy.) Even with the payment set at ten times the median monthly income, the demand for surrogates is now higher than the supply. In the classic cases discussed in the exploitation literature – the person who exploits your desperation for a cooling drink on a hot day, or your desperation for a lift when stranded on top of a mountain pass – the lack of competition means you end up paying a grossly inflated price for the commodity or service. If one were to transpose this model to the payment for surrogacy services, one might have to say that the supply of surrogates has been artificially held down by legal restrictions and social stigmas, leading to a market price that is inappropriately high. This does not seem right. The above points to a problem with hypothetical prices in transactions where the commodification is recent and still highly contested. We could

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perhaps use payment rates in other countries to establish the hypothetical market price, by which measure we might conclude that U.S. surrogates are overpaid and Indian ones underpaid. Panitch argues that we can think of exploitation ‘not only within but across contracts’,28 and that cross-country comparisons are relevant in identifying exploitation, and this fits with many commonsense views about the exploitative nature of contracts in factories in low-wage countries. But precisely what ‘price’ one derives from this remains unclear. Realistically, the Indian surrogacy industry will only continue to attract business if it operates by a minimum wage considerably lower than that in the United States (this is the classic dilemma as regards improving conditions in low-wage economies), but also, as Panitch argues, if the wages for surrogacy in India were set by U.S. standards they could become almost impossible to refuse.29 The industry would then be doing better on her justice condition – ending underpayment – but much worse on her consent condition. We could perhaps establish the ‘fair’ price by tracking the wages paid to workers with comparable levels of skill and hours of work. But here too, comparability on what axis? If we think of pregnancy as working 24 hours a day, seven days a week, for a total of nine months, then even by the standards of the low wages otherwise paid to women in rural India, $3,000 looks very much like taking unfair advantage of unfairness. If we think, instead, of pregnancy as a state of being for nine months, with variable discomfort over that period and some very hard labour at the end, the price might begin to look relatively favourable. We might still say it is taking advantage of global unfairness, but not itself exploitative. If, as a third alternative, we think of pregnancy as giving up your normal existence for nine months – as it increasingly means in India’s surrogacy trade – it is hard to know what price to put on it. We seem to have moved into the realm of putting a price on life. It is hard, that is, to mobilize a notion of fair payment as regards commercial surrogacy services. A potentially more promising way of identifying what counts as a reasonable, non-exploitative deal is to focus on conditions of employment and conditions of empowerment: some version, that is, of fair conditions of negotiation. This is more central to Panitch’s recommendations, and also figures in Jeffrey Kirby’s discussion of exploitation in the transnational surrogacy trade.30 Kirby recommends a process of recruitment that enables women to make fully informed decisions about whether to become a surrogate, aided by advocate-navigators with no vested interest in whether they sign up; enhanced protection against harm, including protocols about hormone injections and the number of embryos transferred, and guarantees of counselling and health care; and participatory engagement of core stakeholders in decisions about terms and conditions. Panitch recommends a state-enforced standard contract, with minimum wage guarantees, legal representation, housing, health, and leave standards, and opt-out clauses; and



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a tax on surrogacy revenue to fund initiatives for female empowerment. She regards the first only as interim measures, because the main burden of her argument is that Indian surrogates need to be empowered to negotiate their own terms with the brokers and clients – to decide for themselves what counts as a reasonable deal – since what makes their current conditions exploitative is that they are not yet in a position to do so. ‘The genuine acceptance of an offer … depends on the ability to negotiate its terms. Authoritative consent is possible only where one is able to consent to the terms of the offer, and consenting to the terms of an offer depends on the ability to bargain for preferable terms’.31 I am not entirely convinced by this formulation, for focusing on consent tends either to understate the agency of those living in unfavourable conditions (suggesting they did not really mean it, or did not really understand the offer), or else gives the impression that anything we have consented to is thereby legitimate. Focusing on conditions of empowerment has the advantage, however, of turning attention to what I regard as the central issue: whether the transaction recognizes or denies the status of the parties as equals. EXPLOITATION, COMMODIFICATION, AND INEQUALITY If my account of social justice leads to me to think the current distribution of income and power is unfair, what is that extra that leads me to mark some subset of the distribution as exploitative? My claim is that when we assess an arrangement as exploitative, we are mobilizing our perceptions of whether what is being asked of others, or paid to them for their services, would be acceptable to us under similar circumstances.32 When the transaction is a market one, that perception of what is acceptable will be informed by market prices, but in all cases, is also informed by a sense of what it is to treat another as an equal. I do not present this as an objective measure, for the meaning attached to ‘treating others as equals’ shifts through time, varies between societies, and can indeed vary significantly from one individual to another. The very idea that others should be treated as equals is itself a recent phenomenon, associated with the American Declaration of Independence (1776) – ‘we hold these truths to be self-evident, that all men are created equal’ – or the French Declaration of the Rights of Man and the Citizen (1789) – ‘men are born and remain free and equal in rights’ – and was self-evidently limited even in those bold announcements to exclude at least half the human race. The subsequent extensions of that equality, to include freed slaves, women, non-citizens, were achieved only through lengthy contestations; and it is worth recalling that, even in 1948, when the Universal Declaration of Human Rights finally abandoned the restrictive language of men to declare that ‘all

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human beings are born with equal and inalienable rights and fundamental freedoms’, the rights and equality were still not extended to colonial subjects. That all humans should be regarded as equals is a recent and fragile achievement, and the actual content we give to that equality remains deeply contested. Some would say that it implies complete equality in income and wealth; others that it has no material implications, and yet others that it sets determinate limits to the permissible social and economic inequalities. These are not matters that can be settled by fiat or logic. The content of equality can only be filled through argument and contestation; it is not and cannot be ‘self-evident’. I am not, then, claiming some objective measure of what it is to treat others as equals. My argument is only that our sense of what it is to behave to others on a basis of equality helps set the floor to what we regard as acceptable treatment. It helps establish that point at which an ordinary ‘taking advantage of’ slides into something exploitative. Exploitation is very much about inequality, and not just inequality in bargaining power or inequality in outcomes, but the inequality that is at stake when one party to an arrangement treats the other as a being of lesser significance. In a paradigm case of economic exploitation, where I pay you at a level that makes it impossible for you to live what I would regard as a decent existence, I am treating you as a lesser being, with lesser needs and sensibilities than myself. Yet if I were your neighbour, living at the same subsistence level, the pitiful hourly wage I pay you for fixing my roof would not so obviously be exploitative. In my view, this is because I would not then be treating you any differently from the way I treat myself. It is not the level of payment that makes it exploitation (how closely, for example, it tracks the hypothetical market price), nor even what it tells us about your capacity to refuse the deal, but what it asserts about our status as equals. In a paradigm case of interpersonal exploitation, where I exploit your emotional dependency on me to get you to put up with my bad temper, sneering manner, and endless affairs, I treat you with contempt, as someone of no standing, someone whose needs and feelings can be ignored. If we were reciprocally unpleasant to one another, with no obvious inequality of standing, this would be a disastrous relationship but, again, not so obviously exploitative. The irrelevance of exploitation in these cases of mutual vulnerability helps highlight what is at stake. In exploring when the ordinarily unfair treatment of the vulnerable becomes the exploitative unfair, my claim is that this is the point where it crosses our equality line. Our views about what constitutes a fair price, or what counts as fair conditions of consent, reflect our views about what it is to treat another as an equal.33 One implication is that exploitation and commodification begin to merge into one another, to the point where neither alone fully captures what is at stake. Consider here the scenes in Nepal during the 2015 earthquakes that



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killed an estimated 8500 people and destroyed much of Kathmandu. While rescue teams were rushing around trying to save lives and provide makeshift shelter, babies born to surrogates in Nepal were also being rescued, and flown to the safety of their new homes in Israel. Surrogacy has long been legal in Israel, but practised under strict government regulation, including a requirement that the surrogates are Jewish, married, and have had at least one child. Potential clients are also strictly regulated, and at this point in time, gay male couples were not permitted to employ surrogates. India had become the favoured alternative destination, but this door was closed by the 2012 restriction of surrogacy to married heterosexual couples, and the trade then moved to Nepal instead.34 At the time of the earthquakes, there were thirty or so newly born babies awaiting transfer to Israel, as well as a hundred or so, mostly Indian, surrogates still awaiting birth.35 The unease generated by pictures of babies flown out of an earthquake zone to scenes of celebration in Tel Aviv resonates with what Judith Butler has explored in her notion of a ‘grievable life’36: a sense that some lives are precious and countable (in this case, the babies and their future parents) while others are treated as negligible, of no great concern. The conditions that led Vida Panitch to talk of exploitation in the surrogacy industry – Nepal as a cut-price destination, the surrogates as in a weak position to bargain better terms – certainly contribute to this sense of unease, but do not entirely explain it. There is also a powerful sense of a differential weight being given to different human beings. Borrowing more from the commodification lexicon, there is a sense that some people’s bodies are being valued primarily as a means to meet the needs of the more significant others.37 The additional twist as regards commercial surrogacy is that it is only women’s bodies that can be deployed in this way. One cannot plausibly represent surrogacy as a practice in which women are exploited by men, for the clients are still mostly heterosexual couples, and the agencies are often run by women, but if one thinks of the practice in terms of the weight it gives to different bodies, the fact that only women can be surrogates assumes particular significance. In her analysis of surrogacy, Debra Satz argues that ‘contract pregnancy places women’s bodies under the control of others and serves to perpetuate gender inequality’.38 As this suggests, it is not just that some people’s bodies are being valued primarily as a means to meet the needs of more significant others; it is that only women’s bodies can perform this function. The practice positions women, and of necessity only women, as tools for satisfying the needs of others. At this point, it becomes hard to disentangle the exploitation from the commodification critique. The unease we may feel about the practices of global commercial surrogacy shares with the first a concern with fair prices and defensible conditions of employment, but it shares with the second a concern

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that some people (some women) have become the means of resolving the problems of the (by implication, more important) others, in a non-reversible relationship that underscores their inequality. That the women fall out of the picture after the moment of giving birth is especially troubling when we think of the surrogacy relationship from the perspective of the children born through this process. It is increasingly recognized that adopted children need information about their birth parents, that they need to be able to see them as real people, and ideally to develop a relationship with them. Yet the way commercial surrogacy is organized, it is virtually impossible to sustain that sense of the birth mother as a person of equal importance in the world: the process is organized in such a way as to write her out of the child’s life. This is not something sufficiently captured by the language of either exploitation or commodification, though it contains elements of each. FROM THE INDIVIDUAL TO THE SYSTEMIC LEVEL Critics of surrogacy are often taken to task for a failure to recognize, or even bother to find out, how the work is experienced by the surrogates themselves. They are said wrongly to presume that all women experience pregnancy as a bonding with the growing child (this is a common critique of Elizabeth Anderson)39; or wrongly to presume that the capacity to give birth is central to a woman’s identity (recall Pande’s critique of Pateman); or wrongly to presume that relinquishing a child after birth will always be traumatic. In my previous writing on surrogacy, I made my own, somewhat doubtful, generalizations. I argued that some, at least, of the current social division of labour reflects variations in skills and preferences that lead us to specialize in different activities, such that even in our deeply inegalitarian world, we can tell plausible tales about some divisions of labour that do not depend on one person being rich and another poor. I claimed, however, that the appeal to differential skills and preferences does not work for surrogacy, hence that this is a division of labour that can only be explained by reference to social and gender inequality. Yet as I knew even at the time of writing, this was overstated. It is not entirely absurd to say that some women might have a ‘preference’ for being pregnant, and might choose this as their occupation even in the absence of pressing economic need. Women vary in the ways they experience pregnancy, in their sense of who they are, in their capacity for emotional detachment, and when objections to commercial surrogacy depend on unsubstantiated claims of a general nature, they are inevitably vulnerable to critique. This, indeed, was very much Panitch’s starting point: the need to ground any claims about exploitation in what the surrogates themselves say about their lives and experiences.



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There is, however, a sense in which the assessment of transnational commercial surrogacy is independent of individual experience. If a surrogate says she feels well paid for her work, we cannot yet take this as definitive evidence that the price is fair, for she may not know how much surrogates in other countries are paid, or how much the clients are paying, or she may be someone who sets a low value on herself. Similarly, if a commissioning couple forms a friendship with a surrogate and takes a genuine interest in her life, this does not yet establish that the relationship is an equal one, for the claim about inequality is structural, not reducible to individual ‘niceness’. The problem with surrogacy is not just that the women may be badly treated, or work in poor conditions, or are paid less than their counterparts elsewhere; and the inequality I am claiming in the transaction is not to be understood simply in terms of how the various participants feel towards one another. The problems with commercial surrogacy have to be understood at a systemic as well as individual level. One key component of this is that surrogacy can only be a solution to infertility problems within a very narrow range; the recent transformation into a global industry makes this even clearer than before. We can envisage a global solution to malaria or HIV/AIDS, one that ultimately aids everyone around the world, but we cannot plausibly represent surrogacy as a solution to global problems of childlessness. When poorer women face infertility or poorer gay men wish to become parents, the development of surrogacy techniques offers them no respite. The opportunities opened up by these developments are only available to the relatively wealthy – and can only be available to that limited few, for there would never be enough women of childbearing age in the world willing and able to act as surrogates for all the world’s childless. The industry depends, intrinsically not just contingently, on global inequalities, both to generate the supply of surrogates and to keep the demand to a manageable level. Were the price to drop to a point that made surrogacy a genuine alternative to the many millions who face childlessness, it would have to be to a level at which few woman would agree to work as a surrogate.40 Were the price to rise to a point where the conditions of employment no longer appear exploitative, this could only further remove the possibility of using surrogacy services from the vast majority of the world’s childless people. Commercial surrogacy is a luxury good that depends on treating some people’s childlessness as a matter of more consequence than that of others. Unlike global solutions to malaria or HIV/AIDS, it can never be generalized. Amrita Pande makes a similar point, with a further ironic twist, when she describes the new subtle form of eugenics whereby the neoliberal notion of consumer choice justifies promotion of assisted reproductive services for the rich and, at

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the same time, justifies aggressive anti-natal policies by portraying poor people (often in the global south) as strains on the world’s economy and environment. Moreover, as the surrogates align their own reproduction, through decisions about fertility, sterilization, and abortion, in order to (re)produce children of higher classes and privileged nations, they ultimately conform to this neoliberal global imperative of reducing the fertility of lower-class women in the global south.41

In one poignant illustration, Parvati (not her real name) discovered that she was pregnant with what would have been her second child while undergoing the medical checks to become a surrogate. Though she and her husband wanted a second child, they ‘needed the money more than a baby’, and she elected to have an abortion. As one of the oldest surrogates, however, she knew this could mean she would never have her own second child. Here, the desire of one couple for a child very directly cancelled the possibility for the other – and did so, not because the clients were unkind or consciously rated their own needs above hers, but because the arrangement was systemically unequal. There are many luxury trades in the world that cannot be generalized: I cannot imagine a future world in which everyone can drive an Aston Martin or every student receives the one-to-one attention of world ranking academics that supposedly characterizes studying at Oxford. But these are not goods that are as generally desired as having children, nor are they ones whose unequal distribution marks out some people as of lesser significance than others. Having children is also not universally desired, in that not everyone wants to be a parent, but it is universal in another sense, in that it cuts across all countries and income brackets. And while the owners of Aston Martins or beneficiaries of elite educations sometimes convince themselves that they are indeed of superior significance, their high self-esteem is rarely endorsed by those who ride bicycles or were educated elsewhere. With surrogacy, by contrast, the focus on the anguish of infertility and childlessness, combined with the impossibility of generalized access to the proposed solution, establishes a hierarchy of significance in which some people’s pain matters more than the pain of others. In making this point, I am shifting the focus of the argument from inequalities in the relationship between surrogate, commercial agency, and commissioning couple, to include the further inequalities between those able to use surrogacy arrangements and those who will never be in a position to do so. This moves us beyond the level of individual experience and perception. There is no relationship – or only the most formal of relationships – between those able to turn to surrogacy to provide themselves with a child and those with no chance of this, and while one can assume that commissioning couples spend quite a lot of time thinking about their chosen surrogate, it is unlikely that they give much thought to the many not pursuing surrogacy. I am not, to



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repeat, claiming that they actually think of themselves as more important, or consider it desirable that only a small proportion of the childless should ever get this opportunity. This part of my argument is systemic, not individual, and does not depend for its validity on expressed feelings or views.

CONCLUSION In this article, I have queried the distinction between exploitation and commodification critiques, and have argued that both derive their force from notions of what it is to treat others as equals. This then blurs the distinction between the two. The further implication, which becomes particularly apparent when we look to the systemic level, is that neither is able, either singly or in tandem, fully to capture the challenge posed by the development and globalization of commercial surrogacy. Both exploitation and commodification point to harms done to specific individuals. There are indeed such harms, as Vida Panitch among others has demonstrated, and in exploring these, it is important to draw on what individuals themselves feel about their situation, not presume in advance that we know how they ‘must’ feel. But in analysing why the commercialization and globalization of surrogacy is so problematic, we should also look to the systemic level, where inequality is built into the nature and practice of the industry, and cannot be resolved by improvements in the terms and conditions of the trade. NOTES 1. I am grateful to participants at the UK Analytic Legal & Political Philosophy Conference (2015), the Theoretical Reflections on Exploitation in Practice Conference (2015), the Oxford Political Theory Seminar (2016), and Frankfurt Political Theory Colloquium (2016) for very helpful comments on an earlier draft, and to Mary Shanley for her written comments. The preliminary work was carried out while I was a Visiting Fellow at the Stellenbosch Institute for Advanced Study, South Africa, in 2015, and I am very grateful for that opportunity. 2. Vida Panitch, ‘Global Surrogacy: exploitation to empowerment’, Journal of Global Ethics 9, no. 3 (2013): 332. 3. The leading study is Amrita Pande, Wombs in Labour: Transnational Commercial Surrogacy in India (New York: Columbia University Press, 2014). 4. Panitch, ‘Global Surrogacy’, 333. 5. Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing the perfect mother-worker’, Signs 35, no. 4 (2010): 972. 6. Amrita Pande, ‘Commercial Gestational Surrogacy in India: nine months of labour?’ In Kenji Kosaka and Masahiro Ogino (eds) A Quest for Alternative Sociology (Nishinomiya, Japan: Trans Pacific Press, 2008), 74.

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7. See also Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’, Hypatia 26 (2011). 8. Panitch, ‘Global Surrogacy’, 340. 9. Ibid. 10. Ibid. 11. Charles A Erin and John Harris, ‘A Monopsonistic Market: Or How To Buy and Sell Human Organs, Tissues and Cells Ethically’. In Life and Death under High Technology Medicine ed. Ian Robinson (Manchester: Manchester University Press, 1994). 12. Karen Busby and Delaney Vun, ‘Revisiting The Handmaid’s Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers’, Canadian Journal of Family Law 26, no. 1 (2010). 13. For example, Lori B. Andrews, ‘Surrogate Motherhood: The Challenge for Feminist’. In Kenneth D. Alpern (ed) The Ethics of Reproductive Technology (New York and Oxford: Oxford University Press, 1992); Carmel Shalev, Birth Power: The Case for Surrogacy (New Haven and London: Yale University Press, 1989). 14. For example, Rosemarie Tong, ‘The Overdue Death of a Feminist Chameleon: Taking a Stand on Surrogacy Arrangements’, Journal of Social Philosophy 21 (1990). 15. Our Bodies, Whose Property? (Princeton: Princeton University Press, 2013). 16. This point is made forcefully in Martha C. Nussbaum, ‘“Whether From Reason or Prejudice”: Taking Money for Bodily Services’, in Sex and Social Justice (New York and Oxford: Oxford University Press, 1999). See also Debra Satz, ‘Markets in Women’s Sexual Labour’, Ethics 106 (1995); Satz, Why Some Things Should Not Be For Sale: The Moral Limits of Markets (Oxford and New York: Oxford University Press, 2010). 17. Carole Pateman, The Sexual Contract (Cambridge: Polity Press, 1988); and ‘Self-ownership and property in the person’, Journal of Political Philosophy 10 (2002). 18. Pande Wombs in Labour, 106. See also Mary Shanley’s depiction of surrogacy as an ‘extreme’ form of the alienation of the self that potentially occurs in all employment. ‘“Surrogate Mothering” and Women’s Freedom: A Critique of Contracts for Human Reproduction’, Signs 18 (1993). 19. Pateman, The Sexual Contract, 207. Pande criticizes this formulation as suggesting that ‘women’s reproduction belongs to a sacred, special realm’, but this seems to me an overly free rendering of Pateman’s point. Wombs in Labour, 7. 20. Margaret Jane Radin, Contested Commodities: The trouble with trade in sex, children, body parts and other things (Cambridge, Mass: Harvard University Press, 1996), 88. 21. There are exceptions to this. In Marx’s account, any extraction of surplus labour, understood as the difference between what is needed to reproduce the worker and his/her conditions of existence, and what that worker actually produces, counts as exploitation. On this account, the whole damn system is unfair. Though this might seem to deprive the notion of exploitation of its usefulness, the key analytic question for Marx was not whether this transaction or that was exploitative, but what was happening to the rate of exploitation. 22. Robert E. Goodin, ‘Exploiting a situation and exploiting a person’. In Modern Theories of Exploitation, ed. Andrew Reeve (London: Sage, 1987), 181.



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23. Wood, ‘Exploitation’, 149. 24. This has become very much the consensus in the literature since the publication of Alan Wertheimer’s Exploitation (Princeton: Princeton University Press 1996), which focuses on mutually beneficial exchanges that are nonetheless commonly regarded as exploitative. 25. There has been close attention to questions of consent in recent feminist literature, where there is resistance both to uncritical celebrations of free choice and to versions of consent that represent women as simply coerced by circumstances. See Gender, Agency and Coercion, edited by Sumi Madhok, Anne Phillips, and Kalpana Wilson (London: Palgrave Macmillan, 2013). 26. Wertheimer, ‘Exploitation’, 95. 27. Ibid., 232. 28. Panitch, ‘Global Surrogacy’, 331. 29. Ibid., 336. 30. Jeffrey Kirby, ‘Transnational Gestational Surrogacy: Does it Have to Be Exploitative?’ The American Journal of Bioethics 14, no. 5 (2014). 31. Panitch, ‘Global Surrogacy’, 333. 32. This not to say accepted by us under similar circumstances: there are some offers I would always refuse, but those who do accept them are not necessarily exploited; and there are some offers I can imagine accepting while still regarding them as, in principle, unacceptable. 33. This is the point at which some theorists would introduce the notion of our inherent dignity as human beings. However, for reasons I have developed elsewhere, I do not find the language of dignity helpful, or think it adds anything significant to what is already captured by equality. See Anne Phillips, The Politics of the Human (Cambridge: Cambridge University Press, 2015), chapter 4. 34. Nepal has since banned surrogacy, concerned – like India – about the reputational damage to the country. 35. In a further development of the transnational trade, the surrogates still tend to be Indian, but now live for the duration not just in hostels attached to clinics, but in ones situated in another country. 36. Judith Butler, Frames of War: When is Life Grievable? (London: Verso, 2009). 37. In fairness, it should be added that the Israeli planes ‘rescuing’ the babies were also among the first to fly medical supplies and personnel to Nepal; and that critics within Israel called on the government to fly the surrogates to safety as well as the babies. However, none of the subsequent offers of assistance has applied to those surrogates who had already given birth, and are now therefore ‘disposable’. 38. Satz, Why Some, 133. 39. Elizabeth S. Anderson, ‘Is Women’s Labour a Commodity?’ Philosophy and Public Affairs 19, no. 1 (1990). See Pande, Wombs in Labour, 7, for a common criticism. 40. I recognise this as another ‘unsubstantiated claim of a general nature’, but it seems plausible in this context. 41. Pande, Wombs in Labour, 23.

Chapter 6

Exploitation and Intimate Labour Vida Panitch

The concepts of commodification and exploitation are frequently called upon to explain what’s wrong with sales involving the human body. Commercial transactions involving body parts and intimate services are typically deemed harmful either because something of value is thought to be degraded in the assignment of a price tag to the human body, or because one party to the arrangement is taken advantage of in a manner marked by coercion and injustice. These are powerful arguments, and philosophical contributions to the conceptualization of commodification and exploitation have played a large role in enabling us to think through what might be wrong with everything from prostitution and surrogacy, to gamete and kidney sales, to paid human subject research and tissue donation. Although commodification and exploitation critiques are often voiced in unison, and with respect to the same kinds of bodily transactions, it is important that they be seen to register distinct objections. One respect in which a commodification critique not only differs from an exploitation critique, but also thereby generates problematic conclusions regarding bodily sales, is that it deems all relevant sales equally wrong, for the same reason and to the same degree. For example, if selling sex and gestation is wrong because the assignment of a price tag degrades the true value of these goods, all sales of intimate labour are thereby wrong for the same reason and to the same degree. This conclusion is problematic for the simple reason that some sex work and commercial surrogacy arrangements, and particularly those transpiring against the backdrop of global injustice, are significantly more worrying than others due to the limited nature of the seller’s alternative options, the conditions in which her work is performed, the rate of her remuneration, and the weakness of her bargaining position. What I want to show in this chapter is that an exploitation analysis of what I am calling intimate labour does, or at least can, provide greater evaluative 119

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and regulatory flexibility than a commodification analysis thereof. I will argue that, provided our exploitation analysis is simultaneously sensitive to both transactional and systemic injustices, it can allow us to say that the sale of intimate labour is more worrying in some cases than in others, and in yet others not worrying at all. This kind of analytic flexibility is crucial for making policies that protect the very real and concrete needs of those whose interests are most at stake in the intimate industries. To establish this argument, I will make three moves. In the first part of the chapter, I will show that commodification claims about the corruptive nature of markets in sex and gestation face several insurmountable objections, not least of which is that they generate an absolutist indictment thereof. This should trouble us, I will argue, precisely because it means that commodification theory cannot account for what makes street walking more troubling than escorting, or what makes global surrogacy more troubling than its domestic counterpart. In the second part of the chapter, I will argue that an exploitation analysis of intimate labour avoids the inadequacies of commodification theory when it comes to the assessment of intimate labour, and specifically its absolutism, provided our account of exploitation is properly sensitive to the ways in which transactional unfairness and structural injustice affect the bargaining power of women in the intimate industries. In the final part of the chapter, I will consider an objection according to which I may have taken aim only at one version of commodification theory and ignored another to which my charge of absolutism does not apply. What I will refer to as equality-based commodification theory, unlike corruptionbased theory, might be said to avoid absolutist indictments of sex work and surrogacy work in much the same way as my proposed exploitation theory does, precisely because both seek to mitigate inequality. In response, I will argue that it is important to specify the role equality is meant to play in a theory of this sort. Where it functions as a moral value that ought to be preserved, equality-based commodification theory is corruption theory by another name. Where it functions as a distributive guide by which to assess the fairness of a transaction, it is indeed reconcilable with exploitation theory, but may no longer be consistent with the underlying aims of commodification theory as such. Although commodification and exploitation theory both appeal to the value of equality in their assessment of intimate labour, I will conclude that this alone cannot reconcile two approaches that take fundamentally different questions about the morality of markets as their point of departure. COMMODIFICATION AND CORRUPTION Commodification theory seeks to answer the question: Why are certain things wrong to buy and sell despite the willingness of both buyer and seller? It



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can therefore be said to ask, in Nozickian terms, why certain ‘capitalist acts among consenting adults’ are wrong, and not others.1 Michael Sandel argues that commodification theory should not just offer the traditional liberal dictum against fraudulent, coercive, or unfair contracts. It should instead be able to explain why certain things are wrong to buy and sell even where all parties to a financial transaction freely and legitimately believe it will advance their individual interests. In his view, the correct explanation for why some things should not be bought or sold is that their estimation in monetary terms degrades their true value. He calls this the argument from corruption, which ‘… points to the degrading effect of market valuation and exchange on certain goods and practices [that] … are diminished or corrupted if bought and sold for money. The argument … cannot be met by establishing fair bargaining conditions. If the sale of human body parts is intrinsically degrading … [this] applies under conditions of equality and inequality alike’.2 Any one of three things might be said to be corrupted by so-called noxious markets. It might be the value of the item itself, the value of the vendor, or the value of important social norms and personal relations. The corruption argument against the sale of intimate labour comes in each of these guises. We’ll explore each in turn along with the respective challenges each face. We will see that it is insofar as each makes a corruption claim that it generates an absolutist conclusion regarding intimate labour. The claim that wrongful sales are ones in which the value of the item itself is corrupted makes obvious sense when we talk about goods like friendship and love, the very nature of which is not only corrupted but negated when money changes hands; what you get at the end of the financial transaction is not at all what you set out to acquire. But this seems like an odd claim to make about sex or gestation. Commodification theorists express worries of this kind when they decry prostitution by conflating sex with intimacy. On this argument, the true value of sexual intimacy can never be acquired with money because by definition intimacy, like love, must be freely and reciprocally given to constitute intimacy as such.3 Herein lies the first version of the absolutist claim that all sex work is wrong in the same way and for the same reason: it destroys in each instance the very thing being bought. But it isn’t obvious that what a buyer seeks in (most) prostitution arrangements is intimacy at all, nor that intimacy is what is being made available for purchase, as opposed to gratification or pleasure or the like. Commodification theorists also express worries of this kind in their assessment of commercial surrogacy when they assume that what is for sale is the child herself. Here the commercial surrogacy arrangement is said to corrupt the child’s self-worth by assigning her a market worth.4 These worries can be easily set aside. First, they rely on unsubstantiated empirical claims about what a particular kind of ontological knowledge does to a child’s self-esteem. Second, it’s not clear that a child is for sale, as opposed to a surrogate’s

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labour. Third, this view can’t tell us why there might be a moral difference between commercial gestation and commercial incubation. And finally, if surrogacy arrangements are wrong because they assign a price value to a child’s existence, then all costly fertility treatments must stand accused lest the child one day find the doctor’s bill. What of the claim that the sale of intimate labour corrupts the inherent value of she who sells it? These kinds of claims have Kantian foundations, for whom ‘What has a price can be replaced by something else as its equivalence, [while] what on the other hand is raised above all price and therefore admits of no equivalent has a dignity’.5 For Kant, it is the very fact that a commodity can be traded for another that makes it suitable for market valuation, and an agent’s humanity not. These kinds of corruption claims can of course also have roots in Marx, insofar as they voice the worry that commodification alienates us from our essential nature as productive beings. Carole Pateman draws on both traditions when she argues that a woman’s sexual and gestational labour are so intimately linked to her humanity, that we degrade her when we assign them a price.6 The first problem with this argument is that, as Kant himself argued, it is not money that corrupts an agent’s dignity, but instrumental use. For him this was the problem with both premarital sex and prostitution. What offends against the agent’s dignity is being used merely as a means to another’s end, because in being so treated the agent is relegated to the status of a thing, which cannot set ends for itself. Money can be a stand in for instrumental use, but it need not be. We can take someone as a mere means to our ends without using cash; for example, as Nussbaum points out, when we objectify them by treating them as fungible.7 But we can also use cash to avoid taking someone as a mere means, such as when we pay them fairly for goods or services rendered. The second problem with this argument depends on the understanding of humanity being posited. If the understanding is Kantian, and thus goes by way of our rational autonomy, it is hard to see how the sale of the body or its capacities degrades this, provided consent is given. We would have to say that bodily sales, like slavery, can simply never be consented to because they reflect ends to which no rational agent could commit herself as such. But herein lies the second of the absolutist conclusions generated by corruption theory: that all those who perform sex work or gestational work are involved in unconscionable contracts, to which none of them could possibly have consented. If instead the understanding of humanity is Marxist, and thus goes by way of our uniquely human capacity for labour, the problem is one of explaining how it is that the sale of sexual and reproductive labour is more alienating than waged labour in general. It has proved notoriously difficult for corruption theorists to explain why it should be more alienating to relinquish control of our physical capacities for money in some cases but not others.8



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What then of the claim that the things we shouldn’t buy or sell are things whose social meanings are corrupted by their distribution in accordance with the norms of the marketplace? This version of the commodification critique is given its most robust articulation by Michael Walzer, who argues that the social meanings we ascribe to various goods determine the kinds of social relations we ought to stand in with respect to their exchange and the principles proper to their distribution.9 Elizabeth Anderson offers an objection of this sort to both prostitution and commercial surrogacy. In her view, the distributive norms of the marketplace are proper to the exchange of goods whose value can be fully captured in terms of their instrumental use.10 The norms of individualism, self-interest, exclusivity, and desire are improper guides to the distribution of the goods associated with intimate relationships and motherhood as they relegate them to their use value, and crowd out the norms of altruism and love proper to their exchange.11 This version of the corruption charge is both the most interesting and the most problematic. To begin with, market norms do not, as a matter of fact, crowd out other kinds of norms. We commodify things all the time that do not thereby lose their non-instrumental value. We list our house on the market and hope to get as much for its sale as possible, yet are no less saddened to say goodbye to the place where we grew up and shared our life with friends, partners, children, etc. And while our sense of self-worth is very much tied up with the jobs we do, this is not devalued by the receipt of an income; indeed it can be enhanced by a fair wage arrived at through collective bargaining. Market and non-market norms clearly coexist in these realms.12 So why shouldn’t they be able to coexist in more personal realms? Does a woman who has worked as a surrogate love her own children less, or a sex worker her own life partner? But the worry being expressed by this version of the corruption charge in fact runs deeper. Whether or not an individual surrogate can continue to love her own children, this version of the charge seems to be saying that in commodifying motherhood she is actually degrading its value for the rest of us. This practice invariably corrupts the dominant social meanings of motherhood, as sex work does for intimacy, by supplanting self-interested bargaining for altruistic good will as the norm governing the relevant exchange relation. And therein lies the absolutism of this third version of the corruption charge. But what if those who sell these goods don’t share this particular understanding of their value? Can we insist that they should, or restrict their freedom? Consider by analogy the response that has been offered to those who argued that marriage equality would threaten the meaning of marriage for everyone else. The reply was not, ‘okay, marriage only for those who wed in church then procreate’. Rather, the reply has been either that this is not the dominant meaning of the practice, or that even if it is the dominant meaning it

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is due for a change, or finally, that it is illiberal to impose someone’s meaning of marriage on others who hold different reasonable views about the practice. As with norms surrounding marriage, we must ask where the dominant social norms governing female sexuality and motherhood come from, whether they are worth preserving as such, and whether it is fair to impose them on women and men who do not share this conception of their value. Should we really object to (and indeed criminalize) women who embrace the norms of self-interest, freedom, and desire in their sexual and reproductive lives? Or should we be wary of arguments that chastise them for doing so, while valorizing dominant expectations of female altruism and self-sacrifice? Whatever we might want to say about the sale of intimate labour, we should certainly be careful not to do the patriarchy’s bidding in the process. Although each of these three corruption arguments against the sale of intimate labour faces unique challenges, they all face an additional shared challenge. Each issues a corruption charge specifically by locating the wrong of sex work and commercial surrogacy in the essentially corruptive nature of ascribing a price value to sexuality and gestation. The wholesale indictment of such sales is demanded, on each account, by the need to protect something of value that is otherwise invariably threatened, be it the value of the good being sold, the value of its vendor, or the value of norms thought proper to its exchange. There are no instances of prostitution or commercial surrogacy that are defensible, according to corruption arguments, as the corruption is inextricable from the commercialization of the practice itself. This is what I have in mind when I claim that corruption theory is absolutist with respect to its assessment of intimate labour. Why is absolutism a problem? Consider the difference between the life of a so-called streetwalker, on the one hand, and that of a high-class escort or madam on the other. Sex work in the Canadian context forces us to consider this distinction. The previous Canadian law criminalizing the sale of sex (which was recently struck down only to be replaced with a new law criminalizing its purchase13) was vocally and legally opposed by representatives of the sex worker’s movement. While these representatives and their lawyers argued before the Supreme Court that criminalization violated their guarantees to safety under Canada’s Charter of Rights and Freedoms, an entirely different group of women protested outside the courthouse. These women were not protesting the law, nor supporting the self-proclaimed representatives of Canadian sex workers who were inside seeking to have it struck down. Instead, they were protesting the very notion that these other women, who were well-educated, well-paid madams, escorts, and dominatrices, could speak for the majority of women in the Canadian sex trade.14 Those outside were mainly Aboriginal sex workers from Vancouver’s harrowing East side, who felt that a criminal law was essential to ensuring that



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their society continued to express in doctrine (if not in practice) a concern for their protection from exploitation. This dispute over decriminalization between women whom one would assume, because of their shared trade, would be on the same side, is a stark reminder that we should not, in either our moral assessment or our legislative rule-making, take an absolutist position regarding a practice like prostitution. Whatever might be wrong with sex work performed on Toronto’s high-end Bay Street by educated and articulate advocates of the trade, it surely isn’t the same thing that’s troubling about sex work performed on East Hastings in Vancouver by women from marginalized social groups, who are battling addiction, domestic abuse, and poverty. Now consider the difference between surrogacy work done in the United States and India. In the United States, surrogates are typically high school graduates, often college graduates, between the ages of 22 and 38, who earn anywhere from $25,000 to $40,000. According to a series of empirical studies, they opt to become surrogates not due to an absence of other equally remunerable options but because this type of work allows them to help others while providing them with the time to pursue other interests, such as furthering their education or caring for their own children. They often come from middle-class families, and have only in a few rare cases been on social assistance. Indeed they are screened out by surrogacy clinics if they articulate primarily financial motives.15 Many are army wives living on military bases, who have access to quality health care and who elect to make money helping others while their husbands are deployed.16 On the whole, American surrogates report having chosen the role willingly, against the backdrop of other good options. They enjoy a post-birth grace period, compensation for expenses, medical care, legal representation, and the opportunity for an ongoing relationship with the child and his or her family.17 In India, surrogates are typically between the ages of 18 and 45, have two or more children, have limited education, are often illiterate, and can expect to earn between $1,500 and $5,000.18 In lieu of expenses, surrogates in Anand, in the western state of Gujarat, are housed in clinical compounds where their meals and activities are monitored, and from which they are not permitted to leave (nor indeed go downstairs) without clinical permission. Indian surrogates are poorer both relatively and absolutely than surrogates in the United States – almost all are living below the poverty line as defined by the Indian government, and the payment they receive is often unavailable to them via other forms of work in their communities.19 They have no legal representation and are owed no compensation whatsoever should they fail to produce a (healthy) child. They are discouraged from communicating with the commissioning parents or negotiating payment, as they are told it is impolite to bargain when one gives a gift.20 Their motivation is almost exclusively financial, and the decision is, ‘generally made in a context of limited

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possibilities for self-expression or development, rising unemployment, lack of financial resources … low education levels, poverty, marginalization in labour and job markets, and patriarchal social and family structures’.21 What these two sets of examples show, I hope, is that the sale of intimate labour is not equally wrong in every case, and certainly not for the same reason. The corruption view tells us that all these women are intrinsically degraded by what they sell, or are actively engaged in the inherent degradation of the value of intimacy and motherhood. I showed earlier in this section that claims of this sort are problematic on a number of fronts. But most problematically of all, they lead to the conclusion that intimate labour is wrong for the same reason and to the same degree in each case. If we accept these arguments, and their absolutist conclusion, we are prevented from acknowledging – as surely we must – that there is presently something far more troubling about Indian surrogacy than American surrogacy and something far more treacherous about being a sex worker on East Hastings than on Bay Street. If we ever needed an example of why moral and political philosophy ought to move more often from practice to theory rather than the other way around, I suggest this is it. EXPLOITATION AND INTIMATE LABOUR What I’d like to do now is argue that an exploitation analysis of intimate labour can allow us to heed the real-world conditions of sex work and gestational work, and thereby to offer a more nuanced and appropriate analysis of intimate labour than commodification theory. To make this case, I will focus more closely on commercial surrogacy, but will return to discussing sex work at the conclusion of this section. What I will argue, in brief, is that a commercial surrogacy arrangement is exploitative to the extent that the surrogate is unable to negotiate its terms.22 Her inability to bargain can affect the quality of her consent, but also makes it highly likely that the benefit share she will enjoy relative to the burdens she takes on will be unfair. In somewhat more detail, commercial surrogacy is exploitative when the surrogate receives an unfair share of benefits, not just compared to the commissioning parents, brokers, or fertility doctors with whom she transacts, but compared to women who perform the same work in more developed regions who begin from a position of greater bargaining power. This account of exploitation begins from a transactional foundation.23 It takes as its criteria of a non-exploitative transaction one in which both a consent condition and a justice condition are satisfied.24 Beginning with the consent condition, what we must look for is adequate understanding about the terms of the arrangement, and an absence of coercion, force, or undue



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inducement. Whether or not these criteria are met in a global surrogacy arrangement cannot be determined theoretically, but only by looking to the results of ethnographic research in which surrogates themselves tell us why and under what kinds of conditions they chose to take on this role. In previous work, I have investigated the question of consent in international surrogacy arrangements and so will not delve into the issue here, except to say that in the reports of Indian surrogates we find ample reference to feelings of compulsion, while in the reports of American surrogates we do not. Developed world surrogates report generally positive experiences and register no greater financial motive than anyone who seeks employment; they also report a sense of satisfaction with respect to their ability to influence and negotiate the terms of the arrangement.25 Indian surrogates report greater financial need and family pressures, as well as a sense of powerlessness with respect to establishing the terms of the arrangement; they frequently make reference to a feeling of compulsion or majboori.26 I think there is good reason to tread lightly in inferring a lack of consent from a feeling of compulsion, but what seems clear is that an Indian surrogate experiences a lesser sense of choice and a greater sense of powerlessness than an American surrogate. And even if these do not conclusively undermine the consent condition of non-exploitation, they can certainly interfere with the fulfilment of the justice condition. With respect to the justice condition, in order to assess whether or not the share of benefits received is fair, we require some metric thereof. Alan Wertheimer initially proposed that we ought to take as our transactional standard of fairness what the parties would each have received in a hypothetically ideal market. As a demand of ideal justice this is surely the correct standard to employ. But in the real world, such a standard is vague, and likely to be so demanding as to disincentivize the initiation of all kinds of mutually beneficial arrangements. This is precisely why Wertheimer himself abandoned the hypothetical market model in his own later work. In so doing, however, he seemed to give up on the idea of their being a proper metric of just benefit sharing at all, apart from whether an outcome was, to however modest a degree, mutually beneficial.27 I propose that we can do better by way of establishing a non-ideal metric of justice for transactions involving parties with asymmetric bargaining power. This standard involves measuring the justice of benefit shares not just intratransactionally (between parties to the same contract) but inter-transactionally (between parties across similar transactions).28 The benefits enjoyed by developing world surrogates should be measured not just within the contract, as compared to the gains enjoyed by the commissioning parents, brokers, and fertility doctors, but across contracts of a relatively similar sort, and specifically to the benefit share enjoyed by women who perform the same work in developed parts of the world and who thus begin from a position of superior

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bargaining power. That the American surrogate has more bargaining power than the Indian surrogate is difficult to dispute, given her greater education levels, the alternative options open to her, the legal representation she enjoys, and the lower opportunity costs she would bear by walking away from the offer altogether. To determine whether a global surrogate enjoys a fair benefit share, we must, I propose, measure all of what she manages to secure against what is secured by her inter-transactional counterpart who is in a better position to demand fair benefits. I do not think this standard of fairness requires that a developing world surrogate be paid an equivalent wage to a first world surrogate. This would solve injustice problems by creating undue inducement problems. Rather, the benefits of the work should be thought to include some combination of, for example, legal representation, safe working conditions, literacy and job training where appropriate, a say in decisions regarding caesarean delivery or foetal reduction, good postpartum care, the possibility of an ongoing relationship with the adoptive family, etc. Employment benefits extend much further than wages. And as a demand of non-ideal justice, they should not be made so high as to disincentive the initiation of what is a mutually beneficial arrangement for both parties, nor so low as to reward those who seek out surrogates with little bargaining power precisely so as to avoid having to treat them fairly. The implication here is not that developed world surrogates can never be exploited. But in order to assess the justice of the benefit share enjoyed by first world surrogates we may well need to rely on something like the hypothetical market model initially endorsed by Wertheimer. That is, we would have to measure their benefit share against an imagined ideal. But in the case of global surrogacy, all we need to be able to say, as a claim of non-ideal justice, is that it is more exploitative than its developed world counterpart. Using inter-transactional comparative assessments as our metric of fairness is very much a proposal of non-ideal rather than ideal justice and so perhaps does not have an answer for those looking to determine whether first world surrogates are exploited. What this type of account tells us is how to get closer to justice, not how to achieve the platonic form thereof. But this, as Sen has recently argued, is perhaps the highest calling of political philosophy after all.29 In asking that we assess the satisfaction of the consent and the justice conditions in particular transactions, the aim of the view is mainly to ensure that we pay attention to the specific context in which a surrogate’s work is performed, and to the results of ethnographic research, which raise concerns about the authenticity of consent and fair remuneration.30 But while this account is clearly transactional in orientation, the manner in which it proposes that we assess consent and fairness takes serious heed of systemic injustices. The global surrogate’s lack of bargaining power is a result of poverty, illiteracy, lack of alternative options, patriarchal family structures, etc. The aim



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of the principle of inter-transactional fairness is to try to mitigate the effects of such background conditions on the outcome of the arrangement. The very point of using this metric of fairness is to highlight how different surrogacy arrangements look when the background conditions thereto are less starkly unjust. So while the account of exploitation I have offered is transactional, it provides a non-ideal fairness principle informed by the systemic injustice of the conditions in which global surrogacy work is performed, asking that we measure fairness against similar arrangements less marred by inequality. Certainly the satisfaction of this principle of fairness will require more than just greater benefit sharing among the relevant parties to a global surrogacy arrangement. The commissioning parents, brokers, and fertility specialists who benefit from global surrogacy arrangements may be taking advantage of a global surrogate’s lack of bargaining power, but they didn’t cause it. (Consider the difference between offering to save a drowning swimmer in exchange for an exorbitant sum, and pushing the swimmer off a cliff precisely in order to make such an offer.) As such, it is not their duty alone to correct for her disadvantaged bargaining position. What the principle of intertransactional fairness requires is that countries permitting international commercial surrogacy should, in the short term, institute a standard contract that protects the surrogate’s interests and ensures greater benefit sharing among the relevant parties. In the long term, it demands that such countries improve the bargaining power of their female citizens by investing in empowerment initiatives funded through taxes levied on the profits of the fertility industry.31 Both of these requirements impose burdens directly on the state and indirectly on the individuals who benefit from global surrogacy. They are significant demands, but remain consistent with the project of non-ideal justice insofar as they focus on improving working conditions and benefit sharing, and eventually education and literacy rates, rather than insisting on the redistribution of wealth from the global north to the global south as a precondition of surrogacy. It should be relatively clear how this assessment of exploitation in commercial surrogacy speaks to the sale of intimate labour more broadly. Sex work is exploitative where the worker is not in a position to negotiate the terms of the arrangement. And here what she should be able to negotiate is not just her rate of remuneration, but what kinds of acts she will perform, where she will perform them, for whom she will perform them, and using what kind of protection. Where a sex worker can set these terms (and enforce them, for example, by being able to legally hire bodyguards who work for her, rather than vice versa), she is, if not non-exploitable, then surely, and meaningfully, less exploited than a woman who cannot. And while it is certainly problematic that Johns seek out women who cannot set such terms, a sex worker’s inability to do so is not strictly speaking his fault. The moral

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responsibility lies with legislators and policy-makers who determine what sex workers can and cannot do out of the shadows, and who are tasked with ensuring that all women have the education, the resources, and the alternatives that allow them to choose a life outside of the sex trade as much it allows them to choose a life within it. By way of summary thus far, I have argued that exploitation theory provides a better theoretical lens for analysing the sale of intimate labour in practice than commodification theory. Commodification critiques of prostitution and surrogacy have numerous serious flaws. Most significant among these is the absolutism as a result of which the view is unable to explain why global surrogacy looks so much more troubling than its domestic counterpart, or why street walking should give rise to a different set of moral concerns than escort services. Another way of putting this point is to say that a commodification view asks that we castigate a wholesale practice, while an exploitation view allows us to castigate a single transaction. The former asks that we indict any practice wherein a good has its value degraded by the assignment of a price tag, regardless of whether the participants in a particular instance of the practice share that conception of the good’s value. The latter, meanwhile, provides criteria by which to determine the conditions of a wrongful exchange. In criticizing a transaction, as opposed to a practice, the concept of exploitation allows us to show concern not for harm to abstract values, but for harm to concrete persons. EXPLOITATION, COMMODIFICATION, AND INEQUALITY Is it inevitable that commodification critiques offer absolutist indictments of the sale of intimate labour, and that exploitation critiques do not? It may well be that both approaches admit of degrees, and decry transactions or practices that lie only at one end of a continuum. This is the case according to Anne Phillips, for whom the sale of physical goods and intimate labour become harmfully exploitative and harmfully commodifying only at the point at which they depend on or foster inequality.32 In this final section, I want to explore this claim and the extent to which it poses a challenge to my argument. I will respond that, yes, equality-based commodification critiques of intimate labour do indeed have the potential to avoid the absolutism of corruption theory and can allow us to say that some sales of intimate labour are decidedly more troubling than others. But it matters very much how equality is understood, and what role it plays in a theory of this sort: Is it a distributive principle that promotes the ends of justice, or is it a moral value whose achievement constitutes an end in itself? If an equality-based commodification critique of intimate labour takes the latter view, I will argue, it risks



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becoming corruption theory by another name; but if it takes the former, it risks becoming something other than commodification theory altogether. While corruption arguments tell us that something of value (the good, the vendor, or some social norm) is denigrated in the assignment of a price value to intimate labour, equality-based commodification theory tells us that such sales are problematic because they foster harmful inequalities. As with corruption arguments, equality arguments can come in different guises, depending on what exactly is being understood as a harmful inequality. In Phillips’ view, when body parts and intimate services are bought and sold, the buyer comes to regard the seller as beneath him, since he would never contemplate selling such an item himself, and thus as deserving of less moral consideration than he takes himself to be owed. The act of payment solidifies his sense of moral superiority, Phillips argues, by relieving him of a duty of reciprocity.33 For Elizabeth Anderson, the invasion of market norms into both intimate and civic realms risks turning us all into self-interested market actors concerned only with the use we can extract from one another rather than the ways in which we can promote one another’s equal flourishing.34 For Debra Satz, markets in intimate labour foster racial and gender stereotypes, which in turn undermine the extent to which our society can properly claim to demonstrate an equal concern for all its citizens.35 In these views, equality functions as a moral or social value that we have reason to protect. Since sales of intimate labour threaten our ability to promote this value, it is argued, they are noxious precisely in this regard. But notice that this effectively locates the problem of intimate labour in the corrupting effect it has on the norm of equality, as the value that ought to govern relations among loved ones, moral agents, and citizens. These versions of equality-based commodification theory are thus, in their own way, issuing a corruption charge, where what’s corrupted by the sale of intimate labour is the moral or social value of equality itself. Those who engage in the sale of intimate labour threaten this value, and since as moral agents and citizens we have an interest in protecting it, we thereby have an interest in preventing them from engaging in sex work and surrogacy. As with corruption theory, these arguments seem to tell us that all instances of sex work and commercial gestation threaten the promotion of equal flourishing or the preservation of equal moral status. If we seek to preserve the value of equality from corruption, therefore, we must prevent the sale of intimate labour. There is, of course, another way we might choose to understand the relevant inequality on a commodification view, namely as a prelude to, rather than as an outcome of, the sale of intimate labour. The relevant inequality of this approach is the one that causes one party to be unable to give consent, to understand its implications, or to bargain for terms she deems fair. Here, the sale of intimate labour is noxious because the asymmetric vulnerability

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of the parties undermines the quality of consent and fairness. This version of equality-based commodification theory does appear to be consistent with the exploitation argument I advanced in the previous section, as it is an inequality in bargaining power that accounts for the moral noxiousness of intimate exchanges. And as such, it would avoid the charge of absolutism that trails corruption arguments as well as equality arguments of the former variety. It is important to note that commodification theorists who offer equality arguments of the first sort also offer equality arguments of the second sort. That is, for Phillips, Anderson, and Satz, we have reason to worry about the sale of intimate labour both because of background inequalities that render one party more desperate than the other, and because of outcome inequalities in the form of eroded moral, social, or political standing. In appealing to background injustice, equality-based commodification theory does, thereby, have greater resources than corruption theory for explaining why some sex work and gestational work is more worrisome. While the sale of intimate labour in general, in these views, undermines moral equality, diminishes the achievement of equal flourishing, or perpetuates racial and gender stereotypes, some instances of sale are more worrying than others depending on the vulnerabilities of those who sell it. Equality-based arguments thus look to be able to avoid strict absolutism by appealing to background injustices that impair fair contractual terms in some cases. Yet while commodification theorists who offer equality arguments against the sale of intimate labour acknowledge the extent to which background conditions play a part in rendering these sales noxious, they never rest their case there. They invariably move on to making an equality claim of the first, and more absolutist sort, which then becomes the true crux of their argument. Indeed they must do this, precisely because equality arguments that appeal only to the injustice of background conditions cannot pick out the sale of intimate labour as particularly troubling, but rather any commercial transaction in which unfair outcomes are produced by the grossly unequal starting positions of the relevant parties. This is not a problem for exploitation theory, but it is a problem for commodification theory. As Michael Sandel puts it, when we explain noxious markets by pointing ‘to the injustice that can arise when people buy and sell things under conditions of severe inequality or dire economic necessity’, all financial transactions involving asymmetrically vulnerable parties stand equally accused.36 Anything the poor sell to the rich in a class society must in principle be suspect on this view. The solution, moreover, is typically thought to require, not the criminalization of sex work and commercial surrogacy, but income equalization or at least meaningful resource redistribution. If our view is that no sales would be noxious were resources distributed fairly, thus rendering background bargaining



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positions less asymmetric, we are egalitarians, on his view (and exploitation theorists, on mine), but not necessarily commodification theorists as such.37 Commodification theory properly so-called seems to need to be able to explain what kinds of items should never be exchanged for money, rather than what kinds of conditions may occasionally make for their wrongful exchange. Identifying unequal background conditions as the source of a noxious market allows us to determine which exchanges are exploitative, but it does not allow us to say that the sale of a particular kind of item is itself wrongful. Recall, commodification theory seeks to answer the question of what makes certain items wrong to buy and sell despite the willingness of both buyer and seller. In that regard it can’t be satisfied with a claim about how things shouldn’t be sold; it needs to explain what shouldn’t be sold. Equality-based commodification theory can therefore certainly say that some sales of intimate labour are worse than others, and for the same reason that exploitation theory is able to say this, namely by pointing to justiceimpairing background conditions. However, if it says only this, it is not clear that it constitutes commodification theory proper. Theorists who take this approach need to say more to explain why these kinds of goods, and not others, are the wrong kinds of goods to sell. And in order to say more on this front, they appeal to a claim about the corruption of equality as a moral, social, or political value. This, in my view, is certainly a superior line of argument than claims according to which sex work and gestational work corrupt the item, the vendor, or the norm of feminine altruism. But it is no less susceptible to absolutism, because to remain commodification theory as such, it must offer an answer as to why some items cannot be sold, and thereby explain why the sales of such goods are invariably bad. Let’s return to the original question of whether exploitation theory and commodification theory can be reconciled in their mutual concern for equality. For Phillips, this reconciliation lies in the fact that both concepts admit of degrees, and that both exploitation and commodification only become harmful at the point at which they trade in inequality. But again, it matters how equality is understood. For Phillips, sex work and surrogacy are harmful, in one sense, because they depend on background inequalities. Here there is certainly a continuum, whereupon some sales are more harmful than others. But, for Phillips, sex work and surrogacy also diminish the equal moral standing of agents, and they do this precisely because the act of payment for such goods negates moral reciprocity. If there is a continuum, every instance of sale lies at the harmful end of the spectrum. We are left with the absolute conclusion that, continuum or no continuum, sex work and commercial gestation are invariably harmful. This is the account endorsed by, indeed required by, commodification theory as such.

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There is, therefore, some sense in which exploitation and commodification can be reconciled in their mutual appeal to equality. Insofar as they both look at the effects of background asymmetries on the fairness of transactions, and are thus able to tell us why some transactions – for example global as opposed to domestic surrogacy arrangements – look more troubling than others. But this is not enough to reconcile what remain two fundamentally different approaches to the analysis of intimate labour. In an exploitation analysis what matters is how an item is exchanged, while in a commodification analysis what matters is what type of item is exchanged. That both have something to say about inequality is certainly more than mere coincidence, since both have good reason to ask after the effects of market-style bargaining on the relative standing of parties ex ante and ex post. But the fact that both approaches make some appeal to equality does not change the fact that they seek to answer two different questions about the morality of markets, one of which demands an absolute answer. CONCLUSION I have tried to show that commodification theory – at least in its corruption guise – offers an absolutist response to intimate labour that does not take seriously the gradations of harm that characterize the real-world practices of sex work and commercial surrogacy. An exploitation analysis, I argued, can provide a more nuanced theoretical lens through which to examine intimate labour by asking that, in the face of unequal bargaining power, we determine the noxiousness of sales based on inter-transactional assessments of distributive fairness. I went on to argue that although both commodification theorists and exploitation theorists are concerned with inequality, this concept plays a different role in each approach. As such, a mutual concern with preventing inequality does not change the fact that these two conceptual approaches take different questions as their starting point, and that one fundamentally seeks, and thus provides, a more absolute indictment of intimate labour than the other. One reason why exploitation theory and commodification theory, despite their mutual concern for equality, are not thereby reconciled, might lie in the extent to which each view is concerned with ideal as opposed to nonideal justice. The account of exploitation I have offered here is non-ideal. There are to be sure myriad ideal accounts thereof. If we take exploitation to consist in that which inevitably occurs between workers and owners under a capitalist mode of production, or as one of several by-products of interlocking sociopolitical conditions of oppression, then certainly whatever assessment we offer of intimate labour would most likely yield absolutist



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indictments. That I favoured a transactional approach, broadened in various ways to acknowledge the unjust starting position of many sex workers and surrogates, was a response to real-world cases that seem to demand this nuance. But since an exploitation analysis can be either ideal or non-ideal, perhaps so too can a commodification analysis. If we are looking for reconciliation, I propose that a shared concern for inequality does not get us there, but that a shared concern for non-ideal justice might. As Margaret Radin argues, although sex work and commercial gestation may threaten human flourishing even under ideal conditions of equality, the fact that these conditions do not obtain mean that we have to evaluate these practices from where we find ourselves now, and not from where we might like to be.38 That I offered a transactional account of exploitation, characterized by a non-ideal principle of inter-transactional fairness, represents an attempt to heed Radin’s advice. Indeed this is what I think it means to move from practice to theory, to offer normative arguments informed by and appropriately responsive to real-world practices that call out for analysis and resolution. Whether commodification theory can engage in non-ideal theory without giving up on the question that motivates its unique inquiry is debatable. But if both exploitation theorists and commodification theorists set out to evaluate intimate labour from where we are, rather than from where we might like to be, reconciliation may yet lie ahead. NOTES 1. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 163. 2. Michael Sandel, ‘What Money Can’t Buy: The Moral Limits of Markets’, Tanner Lectures on Human Values, 21, ed. Grethe B. Peterson (Salt Lake City: University of Utah Press, 2000), 94. 3. Elizabeth Anderson, ‘The Ethical Limitations of the Market’, Economics and Philosophy 6, no. 2 (1990): 187. 4. Christine Overall, ‘Reproductive Surrogacy and Parental Licensing’, Bioethics 29, no. 5 (2015): 357. 5. Immanuel Kant, ‘Groundwork of the Metaphysics of Morals’, In Immanuel Kant: Practical Philosophy, translated by Mary J. Gregor (Cambridge: Cambridge University Press, 1996), 4:434, 84. 6. Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1998). 7. Martha Nussbaum, ‘Objectification’, Philosophy and Public Affairs 24, no. 4 (1995): 249–91. 8. Debra Satz, Why Some Things Should not be for Sale: The Moral Limits of the Market (Oxford: Oxford University Press, 2010), 119. See also Bonnie Steinbock,

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‘Surrogate Motherhood as Prenatal Adoption’, Journal of Law, Medicine, and Ethics 16, no. 1–2 (1988): 44–50. 9. Michael Walzer, Spheres of Justice (New York: Basic Books, 1984). 10. Anderson, ‘The Ethical Limitations of the Market’, 192. 11. Elizabeth Anderson, ‘Is Women’s Labour a Commodity’, Philosophy and Public Affairs 19, no. 1 (1990): 87–92. 12. Margaret Radin, Contested Commodities (Cambridge: Harvard University Press, 2001), 102–14. 13. Protection of Communities and Exploited Persons Act S.C. 2014, c. 25 14. Theresa MacInnes and Kent Nason, Buying Sex. National Film Board of Canada, 2013. 15. Frances Winddance Twine, Outsourcing the Womb: Race, Class, and Gestational Surrogacy in a Global Market (New York: Routledge, 2011), 45. 16. Sally Howard, ‘US Army Wives: The Most Sought-after Surrogates in the World’. The Telegraph, 7 May, 2015. 17. Karen Busby and Delaney Vun, ‘Revisiting The Handmaid’s Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers’, Canadian Journal of Family Law 26, no. 1 (2010): 40–45. 18. India has recently passed legislation restricting foreign access to its surrogacy market. For the past ten years, however, India has been a hub for fertility tourism and international surrogacy, and the bulk of ethnographic research comes from the Indian context. 19. Amrita Pande ‘Not an “Angel”, Not a “Whore”: Surrogates as Dirty Workers in India’, Indian Journal of Gender Studies 16 (2009): 163–66. 20. Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, Signs: Journal of Women in Culture and Society 35, no. 4 (2010): 969–92. 21. Jyotsna Agnihotri Gupta, ‘Reproductive Biocrossings: Indian Egg Donors and Surrogates in the Globalized Fertility Market’. International Journal of Feminist Approaches to Bioethics 5, no. 1 (2012): 46. 22. Vida Panitch, ‘Surrogate Tourism and Reproductive Rights’, Hypatia 28, no. 2 (2013): 274–89. 23. Alan Wertheimer, Exploitation (Princeton: Princeton University Press, 1996). 24. Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’, Bioethics 17, no. 2 (2003): 173. 25. Busby and Vun, ‘Revisiting The Handmaid’s Tale’, 68. 26. Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect MotherWorker’, 969–92. 27. Alan Wertheimer, ‘Exploitation in Clinical Research’, in Jennifer S. Hawkins and Ezekiel J. Emanuel (eds.) Exploitation and Developing Countries: The Ethics of Clinical Research (Princeton: Princeton University Press, 2008): 63- 104. 28. Vida, Panitch, ‘Global Surrogacy: Exploitation to Empowerment’, Journal of Global Ethics 9(3) 2013: 329–43. 29. Amartya Sen, The Idea of Justice (Cambridge: Harvard University Press, 2011).



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30. Panitch, ‘Global Surrogacy: Exploitation to Empowerment’, 337–41. 31. Panitch, ‘Global Surrogacy: Exploitation to Empowerment’, 336. 32. Anne Phillips, ‘Exploitation, Commodification, and Equality’, in this volume. 33. Anne Phillips, Our Bodies, Whose Property (Princeton: Princeton University Press, 2013), 117–18. 34. Anderson, ‘The Ethical Limitations of the Market’. 35. Satz, The Moral Limits of the Market. 36. Sandel, ‘What Money Can’t Buy’, Tanner Lectures, 93. 37. Sandel calls liberal egalitarians the co-conspirators of rational choice economists. ‘What Money Can’t Buy’, Tanner Lectures, 130. 38. Radin, Contested Commodities, 123–30.

Chapter 7

Exploitation through the Lens of Structural Injustice Revisiting Global Commercial Surrogacy Agomoni Ganguli Mitra In this chapter, I use the context of commercial surrogacy in India to revisit the claim that global commercial surrogates are being exploited. I argue that in order to achieve a better understanding of exploitation, we must consider structural injustices more seriously than we currently do. Using Iris Marion Young’s account of structural justice, I partially move away from the liberal tradition – which tends to focus on the contractual arrangements of an interaction – without discarding it altogether. The central claim is that it is not just the unfair terms of a transaction, but also the unfairness arising from the deeper inequalities embedded in the social-structural processes, that substantiate the moral truth of the exploitation claim. These include cultural, legal, political and economic aspects, and moral failure on the part of various agents and at various levels. As long as deep structural inequalities and injustices exist, many arrangements made under such conditions, which other actors directly profit from, can be considered instances of exploitation – regardless of the terms of the transaction. The upshot of this approach is that an exploitative arrangement can have both transactional and structural components, either of which might be sufficient in rendering an arrangement exploitative. COMMERCIAL SURROGACY IN INDIA Until very recently, commercial surrogacy was a thriving business in India, both at the national and international levels. While commercial surrogacy remains illegal in many countries, India, a global hub for medical tourism, has also come to be known as the surrogacy ‘outsourcing’ capital of the world.1 In the few other jurisdictions where commercial surrogacy is legal, it continues to be expensive, often prohibitively so for many prospective 139

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parents – costing anywhere between $50,000 and $120,000.2 On the other hand, India is yet to fully regulate this $445 million dollar industry.3 In 2015, the government passed a ban restricting access to surrogacy to Indian nationals and their spouses, and to holders of either an OCI (Overseas Citizenship of India) card or a POI (Person of Indian Origin) card who can prove their ancestry and close ties to India. The latest iteration of the Assisted Reproductive Technology (Regulation) Bill or ART(R) Bill – the central piece of legislation intended to regulate the surrogacy sector, periodically considered over the years before being repeatedly shelved – includes this restriction but has yet to be considered by parliament.4 For international commissioning parents, India has been a particularly attractive destination, due to its large pool of potential surrogates; skilled English-speaking medical staff; hospitals with good infrastructure; and the fact that few surrogates have the resources, legal or financial, to claim the baby post-birth.5 The lack of comprehensive regulation so far has also meant that contracting parties – usually prospective parents and their agents on the one hand, and Indian clinics on the other – are left to make their own private arrangements as to the terms of the contract. Surrogates are reportedly paid between $2,500 and $7,000, and the total cost to prospective parents ranges between $10,000 and $35,000.6 There are reportedly over 3000 surrogacy clinics operating across India.7 Although many of the empirical studies have been conducted in Gujarat,8 such clinics are now sprouting in many of the major cities, and poorer women are often targeted for recruitment.9 Indeed, most potential surrogates live around or below the poverty line, and there is little doubt that the primary motivation for entering a surrogacy arrangement is financial.10 The money surrogates receive would otherwise take them and their families years to earn, in the best of cases. Paid surrogacy arrangements are taken on by women in an effort to pay off family debts, contribute to the children’s education, or to household expenditures. In some cases, potential surrogates are the main or sole earners in the family.11 While primary consideration for agreeing to act as a surrogate may be of a financial nature, grouping these concerns under the label of poverty is misleading. Women lack employment options not only because there is a lack of stable, well-paid employment opportunities. Opportunities are also scarce because few women have access to formal education.12 Alternative work can only be found in the unregulated sector, and involves work that is poorly paid, exhausting, and often dangerous.13 Women suffer from wage discrimination in every employment sector, regardless of their educational background. Work in the field or on construction sites is gruelling, lacks access to adequate sanitary facilities, and protection against violence and sexual harassment. Safety and lack of sanitation are also among the main reasons many young



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girls drop out of primary education, leaving them with very little opportunity for future employment. These factors, however, are simpler to pinpoint. India is culturally pronatal,14 but also deeply patriarchal. Much importance is given to the male biological offspring, and as a result, reproduction takes centre stage in women’s lives and status. Preference for the male child is reinforced not just socially, but also indirectly by political and economic factors.15 By the same token, the social status of female infants, young girls, and women remains subject to a strong web of class, caste, and gender discrimination. Inheritance, to a great extent, remains culturally patrilineal, and marriages are patrilocal (requiring the bride to leave her ancestral home or village to live with her husband’s family) and often hypergamous (allowing the bride’s family to marry ‘higher up’ in the caste and class hierarchy, by offering a large dowry and organizing an expensive wedding). Social rigidity around sexual purity and family honour means that most women are married young, while still considered ‘pure’, and therefore further reducing their educational and employment opportunities. According to a recent UNICEF report, over 18% of girls are married by the age of 15 and a staggering 47% by the age of 18, making India the global leader in child brides.16 India also fares low in terms of reproductive and maternal health, as well as infant mortality. In other words, commercial surrogacy flourishes in a context of deep inequality; where girls are given fewer opportunities in terms of health, education, and employment; where they are married young, away from their families; and left with little other than their own reproductive assets, the very capabilities that make surrogacy so compelling. Beyond social inequalities, there is also injustice enabled by failures of various institutions and institutional actors. India has a plethora of laws in place intended to protect women’s interest, including rights to education and inheritance, laws against sex-selection, dowry, caste discrimination, and early marriage. However, the country also suffers from widespread corruption and laxity at all levels of governance and law enforcement, medical and legal institutions, creating a situation where women and girls are largely at the mercy of their fate, families, and communities. While it may be tempting to portray surrogacy as a means to escape a myriad of inequalities, it is important to note that discrimination or unfairness is sometimes reproduced within the context of surrogacy itself. Surrogacy is considered by many Indians to be work akin to prostitution and surrogates often have to resort to various methods of deception to escape the stigma they and their families might face in their communities.17 Patriarchal, paternalistic, and discriminatory norms are widespread even within the best clinics. Skin colour and caste play a central role in the surrogate’s power to negotiate the terms of agreement, and fairness, light hair and eyes, as well as high IQ are

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greatly in demand, also by Indian couples.18 Women are often required to reside in supervised hostels where their freedom and movements are heavily curtailed for the sake of a healthy pregnancy and a successful transaction.19 Finally, commercial surrogacy in India is flourishing under a pro-business, political, and economic atmosphere, in a country that is keen on attracting private investment to its health sector.20 Regardless of whether commercial surrogacy as such commodifies reproductive labour,21 potential surrogates are choosing this work in a context where several factors have already taught them to devote their lives and identities to the service of procreation and childcare. This aligns itself well with the aspirations22 of the current Indian surrogacy industry, set to become a leader in the region. Ethnographic findings suggest that many surrogacy arrangements are set up in a way as to further reinforce the ‘transient role and disposability of the women, not just as workers but also as mothers’,23 and merely represent a further step towards establishing the women’s reproductive capacities as skills for business, leading to the creation of what ethnographer Amrita Pande calls the perfect mother-worker.24 While there are popular reports of brokers scouring city slums, looking for potential surrogates, recent empirical studies show that surrogates are most often recruited by other women from within their own communities, often themselves former surrogates.25 The loci of negotiations in these cases rest on relations and exchanges that operate ‘extra-legally’ and are very much dependent on the existing societal relationship. Formal contracts and their terms are established well after surrogates have accepted to enter the arrangements.26 And so the business thrives on existing social connections, understanding and trust. My main purpose in devoting some time towards illustrating the Indian context is to establish the background considerations that I believe are crucial components of the exploitation claim. Using the example of national and international commercial surrogacy in India, I revisit the claim that global commercial surrogacy is exploitative. Given the stark socio-structural inequalities most surrogates face, I argue that many in fact are being exploited. Following Iris Marion Young’s approach to structural justice, I suggest that a proper account of exploitation should take into consideration structural fairness (as well as transactional fairness), thus, the exploitation claim will necessarily be heavily context-dependent. PARAMETERS OF THE EXPLOITATION CLAIM I begin with the position that exploitation, in its moralized sense, broadly involves taking wrongful advantage,27 that is, it describes a situation where one or more person(s) benefit(s) at the expense of others, in a manner that can



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be described as morally wrong. I do not consider here whether we need to, or indeed can, achieve a unified account of exploitation.28 While the concept of exploitation has largely evolved away from its historical economic roots,29 one predominant view, most famously developed by Wertheimer,30 closely associates exploitation with the unfair distribution of benefits and burdens in an exchange. Given that my line of argument also focuses on fairness, it is worth outlining the ways in which such an account resembles, and departs from Wertheimer’s own account. According to Wertheimer, ‘A exploits B when A takes unfair advantage of B’.31 As stated, this can refer to a defect in the process (when, for example, consent is coerced or manipulated), or to the unfairness in the outcome of the exchange (if, for example, A benefits excessively compared to B). In Wertheimer’s view the harm in non-consensual exchanges is easier to pinpoint and theoretically less interesting, since a defect in consent is a form of wrong in itself, independent of the exploitation claim.32 A moral defect in the outcome, however, is ‘both necessary and sufficient to constitute exploitation’.33 First, Wertheimer’s account relates to the fairness of the terms of an agreement, and this focuses our attention to the micro-fairness34 aspects, polarizing the debate around (financial) terms, at the expense of the broader picture. Such an approach fails to portray some of the problematic features of global commercial surrogacy, such as the ones described in the context of India, and which should be pertinent to the exploitation claim. A structural account of inequality and justice, I argue, can also consider fairness, but unlike Wertheimer’s approach, it steers our attention to broader, but pertinent, considerations. This does not mean we should discard the transactional account of exploitation. On the contrary, as far as a fairness-based account of exploitation is concerned, we should consider both transactional and structural components. Second, if commercial surrogacy in India is correctly labelled as exploitative, it is fair to assume that it is usually the kind of exploitation that Wertheimer describes as mutually advantageous35: an arrangement that relevant parties (exploiter and exploited) benefit from ex ante. In such cases, all parties involved are expected to be better off from entering the arrangement than otherwise, as long as surrogates are compensated for their service. Third, I agree with Wertheimer, that it is important to separate two aspects of the exploitation claim: its moral truth, that is, whether an arrangement is correctly labelled as exploitative, and its moral force, that is, developing the normative implications arising from such a label, for example, imposing legal restrictions on such arrangements. It is not because an arrangement is correctly described as exploitative that it should necessarily be banned. I am mostly concerned here with the moral truth of the exploitation claim, although I do consider some of its moral force and practical implications in

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the latter part of the discussion. This distinction is helpful because otherwise the apparent strength of the moral imperative and its practical implications for regulation often obscure the nuances and concerns that prompt the discussion in the first place. Finally, the analogy that Wertheimer uses, characterizing an exploitative arrangement as one involving two parties, A and B, is highly problematic. As David Resnik argues in the context of global clinical trials, the often-used symbolic transaction between A and B may in fact involve many people,36 each with their own agendas and interests, relationships and position of power.37 Focusing on two parties, A and B, unhelpfully ushers us back to a micro-fairness approach to exploitation, and away from other morally relevant contextual details, factors, and actors. STRUCTURAL INEQUALITY AS A FOUNDATION FOR THE EXPLOITATION CLAIM The essence of my claim is that taking advantage of injustice can be considered a component of exploitation, and not merely, for example, a form of complicity in injustice38 or another kind of wrong, and that this can be true regardless of whether the terms of the agreement are fair. This approach connects the fairness component of the exploitation claim to an account of structural injustice. Iris Marion Young argues that ‘structural injustice exists when social processes put large categories of persons under a systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time as these processes enable others to dominate or have a wide range of opportunities for developing and exercising their capacities’.39 This is precisely the context in which commercial surrogacy flourishes in India, where many surrogates find themselves at the receiving end of injustice, not all of which can be clearly attributed to individual fault or a specific unfair policy,40 but that still positions them in a web of inequality that makes surrogacy work so compelling. Young argues, ‘[t]hat the issue of social justice raised by the operation of social structures is whether these differences in the kinds and range of options made available to individual by these structures are fair’.41 The many social and structural constraints that give rise to inequality in the Indian context – from cultural rigidity, to poverty, to corruption, among others – mean that surrogates are not only in a difficult bargaining position when it comes to the terms of the arrangement, but that they face a severely restricted and unfair range of options when it comes to making the choice to undertake surrogacy work in the first place. It is only when the gender-based inequalities become apparent that the moral wrong of exploitation becomes salient in this context. In Young’s words:



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‘One important purpose for taking a large-scale point of view on a society and locating positions in a structural field is to identify broad structural inequalities that are far-reaching in their implications for people’s life courses and that persist over time, often over generations’.42 A comprehensive view of exploitation also requires us, in certain cases, to take such a broad view. Restricting our lens in the manner suggested by Wertheimer may be enough in characterizing exploitation in certain contexts. However, that picture is incomplete in the case of global surrogacy in general, and in the Indian context in particular. There, the deeper moral wrong of exploitation arises from the social and structural inequalities that position women in various positions of injustice. Ruth Sample has argued that ‘exploitation is not simply a feature of a particular transaction but derives its badness from pre-existing social institutions that underwrite and encourage the transaction’.43 Differing slightly from Sample, who identifies exploitation and an instance of degradation, I would argue, however, that the conditions described above lead us to consider exploitation as an arising from unfairness and systematic cultural, legal and political injustice, rather than a form of disrespect. It is therefore important to characterize exploitation, not just as the feature of an arrangement between A and B, but as several actors taking advantage of an unjust situation that some of them have contributed to, or which they continue to reinforce through such practices, in order to satisfy their own goals, needs, and desires. As long as the injustices exist, and as long as certain actors and institutions continue to benefit from them through, for example, the establishment of surrogacy transactions and industries, the arrangements made under such conditions – however fair the terms of transaction may be – can be rightfully considered exploitative. Wertheimer considers exploitation a transactional or interactional norm.44 The relevant parties have to enter into an arrangement or exchange that can then be characterized as exploitative or not. An arrangement can have both transactional and structural components of exploitation, and indeed I would argue that many arrangements that can be correctly described as exploitative probably have an element of both, as do many global commercial surrogacy arrangements. Either component can be sufficient for the exploitation claim. In other words, it could be that the background injustices are so egregious as to render any arrangements and exchanges in those contexts exploitative, in a way that no compensation resulting from the arrangement could alleviate. Alternatively, it could be equally plausible that the structural concerns are all but minimal, so much so that exploitation remains only a feature of the particular contractual terms. As I discuss later, it could also be that in certain cases the structural component of the claim can be overridden by achieving fairer terms, but I remain unconvinced that this is the case for global commercial surrogacy.

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A proper characterization of exploitation requires some attention to the question of moral responsibility. In this case, the morally responsible actors are many. In the first instance, Vida Panitch has rightly argued that we should put a significant amount of moral blame onto the Indian state.45 The State has failed to protect the rights, agency, and interests of women by failing to enforce the institutional, legal, educational, cultural processes and equal opportunities that would allow girls and women to lead flourishing lives. I would further argue that the State is also implicated in exploitation because it derives direct benefits from, and continues to encourage, an industry that heavily relies on existing injustices. Second, the physicians, brokers and other persons directly involved in the surrogacy industry are not just complicit in injustice, but are also involved in exploitation, as far as their professional and financial gains also depend on the existing structural injustices.46 Last but not least is the matter of prospective parents. The discussion regarding moral blameworthiness in global commercial surrogacy has often concentrated on non-Indian couples, commissioning surrogacy as medical tourists from high-income countries. Parry’s recent work, however, suggests that many of the commissioning parents within the Indian surrogacy industry are in fact Indians, residing in India.47 Prospective parents taking advantage of structural injustice include individuals from other countries, non-resident Indians, and Indian residents themselves, many of whom also48 seem to perpetuate existing race- or caste-based discrimination. Evidence from Parry’s work also suggests that we should move away from the traditional narrative of the North-South divide, of surrogacy as violence perpetrated by the white body on the brown body,49 and rather concentrate on the many inequalities: relational, social, and structural that come into play at the local, national and global levels. Moral responsibility for exploitation should therefore be assigned to several actors, who either profit from existing injustices, from injustices that they have enabled or causes; or from injustices that they further reinforce by perpetuating unfair practices and norms. The inevitable question then arises as to the normative implications, or moral force of this type of exploitation. According to Wertheimer, we have good reasons to allow mutually advantageous exploitation to take place, as long as consent is valid,50 especially if both parties, in particular the exploited party, would be worse off otherwise. The normative and regulatory implications of the exploitation claim require far more in-depth discussion than I am able to explore here. To allow mutually advantageous exploitation will depend on how severe either components of the exploitation claim are: for example, how deep the inequalities, how bad the terms or how egregious the wrong is in relation to the inequalities or deprivation the exploited individual otherwise faces, and the extent to which the practice further reinforces injustice. Such moral force could take the form of



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restrictions on the exploitative arrangements, and/or the form of positive obligations to address the inequalities or needs the individual faces. All of these considerations should be, to some extent, context-dependent, and exposed to further moral scrutiny and argumentation. In the context of Indian commercial surrogacy, I am not convinced that achieving fairer contractual terms would erase gender-based inequalities, and not further entrench them. On the other hand, it is impossible to ignore the fact that imposing a ban or restriction will deprive individual women of a real change to improve their well-being and that of their families. Nor does a ban or restriction in itself advance the interest of women, unless significant progress is made in terms of addressing various existing inequalities. With exploitation, moral responsibility and moral force described this way, it also becomes questionable whether the 2015 ban by the Indian government on non-Indian nationals commissioning surrogacy, which was reportedly motivated by a concern to prevent further exploitation of poor Indian women,51 really does serve this purpose. If the deeper worry is that of injustice and inequality, then Indian commissioning parents are equally implicated in exploitative arrangements. By adopting a normative position which seems to suggest that only global commercial surrogacy is exploitative, the state disregards exploitation that occurs within its borders and brushes off its own moral responsibility with regard to injustice. OBJECTIONS AND LIMITS TO A STRUCTURAL INJUSTICE LENS In the last section of this chapter, I would like to consider two potential objections and limitations to a structural approach to exploitation. The first relates to consent and agency; the second relates to the scope of the structural approach. It could be argued that structural injustices, as I have described them, really result in the agency of potential surrogates being eroded or compromised, and that in fact, what appears to be freely given consent is in fact defective. Stephen Wilkinson has argued that the exploitation necessarily involves a defect in consent and this worry is certainly not easily set aside in the current context.52 A recent study by Tanderup and colleagues in New Delhi suggests that information given to potential surrogates may in fact be inadequate, and that there is rampant paternalism on the part of the doctors around the decision-making procedure of surrogates.53 If consent is inadequate or missing, we are certainly dealing with a wrong, one that involves a lack of respect for autonomy, whether or not it also involves exploitation. It may well be, however, that women entering the surrogacy arrangement have considerable

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understanding of the risks and discomfort associated with pregnancy and giving birth, even if they are unaware of those specifically associated with surrogacy. More importantly however, I am willing to assume that consent given in such situations can be both meaningful and valid. In fact, it is quite plausible that women choose to enter such arrangements despite fully understanding their risks, demands and discomforts. Given their alternatives, commercial surrogacy may in fact be a perfectly rational and reasonable choice, even when it is a difficult one. In other words, describing an arrangement as exploitative need not necessarily undermine the rationality or agency of the exploited party. This question, I believe, is also at the heart of some of the clashes between the ethnographic and the normative discourses around global commercial surrogacy, and it is worth addressing here what has come to be known as the ‘ethnographic turn’ in the discourse around commercial surrogacy in India, a claim that finds its way various forms in many discussions pertaining to transnational or transcultural ethics. Several ethnographers have suggested that the claim of exploitation, used as a moral lens, is a tool that Occidentalizes commercial surrogacy, fails to capture the realities of the practice, and treats the surrogates as victims who need to be rescued.54 The danger of victimizing surrogates and effacing their agency in the process of ensuring that they are protected is one of the reasons I have chosen to avoid using the term ‘vulnerability’ in my discussion of structural injustices, even though it is a term preferred by many scholars in their characterization of exploitation.55 While it may be true that the wrong of exploitation lies in taking advantage of a vulnerability, it then requires us to further define vulnerability to justify which kinds we think are relevant to exploitation. Current ethnographic work suggests that while many surrogates feel compelled to take on surrogacy work, these are not necessarily examples of coercion or severe erosion of agency, although it is possible that some women are, or feel, coerced into accepting surrogacy work. I would rather argue that what is described as ‘majboori’, by one of the surrogates in Pande’s interviews, is compulsion in the face of the multitudes of injustices one faces,56 where the choice to enter surrogacy seems to be an obvious way out of financial hardship, if temporarily. Coming back to the concern raised by ethnographers: Pande begins one of her accounts by suggesting that the realities of surrogacy in India require us to move away from an ethics and moral lens.57 This is particularly surprising as the remainder of her article is filled with value-laden language when describing the desperate conditions potential surrogates face, as well as the injustices to which they are exposed. As Bailey argues, while the ‘Western’ view may mistakenly put too much emphasis on reproductive autonomy or commodification, the alternative approach is certainly not the ‘moral absenteeism’



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that the ethnographers seems to encourage.58 If the moral lens has the wrong target, it may certainly gain from being redirected by the ethnographers’ lens, but it doesn’t follow that such a lens is unnecessary. Rather, the ethnographic turn seems to be couched in a critique of liberal view of the moral agent, where consent and rationality reign and where an appeal to exploitation might signal powerlessness or lack of agency. A fairness approach to exploitation, whether structural, transactional, or a combination of both, does not necessarily depend on the erosion of agency (although it can coexist with such an account as well). As Young notes, the fact that structures and processes constrain ‘does not mean that they eliminate freedom: rather social-structural processes produce differentials in the kinds of range of options that individuals have for their choices’, they do not ‘constrain in the form of direct coercion of some individuals over others’. Rather, Young goes on to suggest that the central worry is ‘whether these differences in the kinds and range of options made available to an individual by these structures are fair’.59 I have argued so far that they are not, in fact, fair. Bailey argues that ‘extending Western moral frameworks to Indian surrogacy work raises the spectre of discursive colonialism along with concerns about how Western intellectual traditions distort, erase, and misread nonWestern subjects’ lived experiences’.60 While context-sensitivity is particularly relevant in this case, we would do well not let the ‘spectre of discursive colonialism’61 push us towards either an ethics of relativism, or towards libertarian/anti-paternalist ethics, that might let consent do all the moral work. A relevant consideration in this exercise is the concern of adaptive preference, that is the situation in which an individual’s preferences are shaped to accord with the (frequently narrow) set of opportunities she actually has.62 In other words, being brought up to believe that education and employment are not meant for women, while child-bearing, child-rearing and various concerns around the households are, contributes to shaping the choices women make in these contexts, whether they in fact have a narrow set of choices in the first place, or whether they only believe this to be the case.63 When Pande talks of ‘desperate’ women, or argues that commercial surrogacy work requires the perfect work ethic while tapping, as part of recruiting techniques, into the nurturing role women are expected to embody,64 she also implicitly assumes a normative framework, but one that remains largely unacknowledged. Considering relevant moral framework, as we are doing when examining whether global commercial surrogacy is exploitative, does not require us to either efface the agency of the surrogates or disregard their lived experiences. Condemning a certain practice as exploitative or unjust does not mean that women at the heart of such practices are unable to navigate ‘their own way to social change’.65 In fact, the local movements of resistance (e.g. surrogates negotiating terms of their residence with wardens) that are described

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in Pande’s work can also construed within normative approaches as particular instances of self-determination, agency, and pragmatism, in the way ‘Western’ ethics, if there is such a thing, might also define them. However, ignoring how much structures and processes shape individual choices might lead to problematic measures against exploitation. For example, one possible measure to minimize exploitation, as suggested by Jeffrey Kirby, is to ensure that consent is informed and voluntary, by asking ‘members of the disadvantaged individual’s social group/community, including those who have had similar transactional experiences, to deliberate together to determine whether this condition is met’.66 Such members would include other former surrogates, potential surrogates or members of the women’s communities. This is unlikely to entirely solve the concern of exploitation, even at a micro-fairness level because, as Panitch rightly suggests, even ‘the surrogates’ social group might not know what a fair distribution of benefit would be’.67 Moreover, a consideration of adaptive preference might suggest that most of the women within the community have been shaped by the same kinds of restriction as the surrogate herself. As such, a contextually dependent standard of fair terms, even one developed in consultation with other women in the community, does very little to establish what is fair in this context, and even less so towards providing a complete picture of exploitation. The second set of objections to a structural approach asks firstly, whether the scope of a structural component is too broad, rendering any interaction under conditions of less than perfect equality exploitative, thereby entirely diluting the moral strength of the exploitation claim. If this is not the case, and if exploitation is a feature of discrete interactions, then we may be forced to acknowledge that achieving fairer or best practices could alleviate, if not entirely erase, concerns of exploitation, also of the structural kind. After all, if surrogacy can become a tool of empowerment, why not? On the first objection, I would argue that indeed, there is a fair chance that many arrangements under deep conditions of structural injustice would be considered exploitative. But this would partly depend on where the individual stands in relation to social structures and processes. For example, the interaction between an Indian luxury hotel owner and her high-income clients is unlikely to be one of exploitation, although the one between a badly paid busboy at the hotel and its owner or with the clients might well be. In the case of the busboy however, establishing better terms of exchange may well quench all concerns of exploitation, if truly the only structural issue here is one of economic inequality. Can this not be the case for surrogacy? If women can use one of the few assets they have as a tool of empowerment, however weak, perhaps the ethically sound response is to support the practice and ensure that surrogacy labour is carried out under fair conditions and fair contractual terms. Panitch



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has suggested that we must look at global inter-contractual comparisons in order to examine the fairness of existing arrangements.68 Such a comparison would not only include financial terms, but other benefits such as the freedom to pursue other interests during the contract, and legal representation. She has also suggested making a series of comparative analyses across contracts, in order to help establish the standards Indian surrogates are entitled to. However, I remain suspicious of measures, be they inter-contractual comparisons (local or global), or fair trade approaches,69 that would only make commercial surrogacy more compelling, thereby further entrenching gender inequalities without significant additional measure to address background injustices. It seems that certain aspects of what makes the arrangement exploitative in this case cannot truly be addressed solely by terms, unlike with the case of the busboy. This is related to the fact that surrogacy work is genderspecific, the very characteristic that places women in positions of deep inequality in the first place. Let us take another example of exploitative labour: paid household work in India. Household work is a largely unregulated sector in India, often, but not exclusively, performed by women and children. Pay tends to be minimal and conditions less than ideal. Workers usually have no access to formal labour law protection. Much of the working conditions are harsh and demeaning. Workers are often not allowed to use the home toilets, sit anywhere other than the floor, use the same crockery as the rest of the family, take adequate breaks or time-off work. Such conditions can be described as exploitative, both from the transactional and structural perspectives. As in the case of the busboy, these wrongs can be alleviated by establishing better working conditions. Not so for all types of household work. Usually, home toilets are cleaned by a different category of workers, who ‘specialize’ in cleaning both household and public toilets. A great many of these workers might not have chosen to enter such a profession, but have been handed this work down through the generations, by virtue of belonging to the lowest caste, formerly referred to as the ‘untouchables’, and historically and currently still one of the most deprived and oppressed communities in India. Despite the fact that both caste discrimination, and a large part of the work that these workers do, such as manual scavenging and the cleaning of dry latrines, has been banned in India, both practices are still prevalent. Children belonging to these castes often find themselves cleaning latrines for their classmates. While further institutional provision can be taken to eliminate the degrading and inhumane conditions of such work, the moral wrong cannot be entirely eliminated until individuals and communities find themselves completely free of caste and other social discrimination. This is not to suggest that surrogacy work shares any of the degrading and inhumane characteristics of latrine cleaning in India. However, this analogy does suggest that where the inequalities and injustices

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arise from more than material inequality, it is unlikely that solely focusing on the conditions of the work will erase all concerns of exploitation, unless such terms and conditions can be established that would truly, and sustainably empower women in the long-term. The path to true equality, I argue, can only be achieved by taking significant and urgent steps towards redressing structural injustices, rather than solely seeking to establish fair terms of agreement. CONCLUSION Neither the two prevalent notions of exploitation, a liberal account as developed by Wertheimer, or respect-based approach that focuses on degradation, can fully account for why cases of global commercial surrogacy should be rightly described as exploitative. Although I start from a position that retains the concept of fairness as the central feature of the exploitation claim, I have moved away from a typically Wertheimerian approach that focuses on the terms of an exchange, and instead described exploitation as a feature of structural inequalities and injustice. The upshot of this approach is a hybrid: an account of exploitation that has both a transactional and structural component, each of which may account for exploitation, to a greater or lesser extent, depending on the specific context of the exchange, and the socio-structural positions of the actors involved. While I remain agnostic as to whether current instances of commercial surrogacy should be severely restricted, or even banned in an effort to minimize or eliminate exploitation, the normative implication of this approach is that addressing structural injustice is just as important, if not more, in addressing exploitation, as achieving fairer contractual terms. NOTES 1. Jyotsnya Agnihotri Gupta ‘Reproductive Biocrossings: Indian Egg Donors and Surrogates in the Globalized Fertility Market’, IJFAB 5 (2012): 25. 2. Karen Busby and Vun Delaney, ‘Revisiting the Handmaid’s Take: Feminist Theory meets Empirical Research on Surrogate Mothers’ Canadian Journal of Family Law 26 (2010): 13–93, as cited in Vida Panitch, ‘Global Surrogacy: Exploitation to Empowerment’, Journal of Global Ethics 9 (2013): 3. 3. Vida Panitch, ‘Surrogate Tourism and Reproductive Rights’, Hypatia 28 (2013): 277. 4. At the time of writing the state is considering completely banning commercial surrogacy. If such a law passes, this might partially affect my arguments and context for this chapter. It would not, however, affect the central line of argument



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regarding the definition and scope of exploitation. Government of India, ‘The Assisted Reproductive Technology (Regulation) Bill (2014)’. http://www.prsindia. org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20 (Regulation)%20Bill,%202014.pdf (Last Accessed 08.08.16) 5. Jennifer A. Parks, ‘Care Ethics and the Global Practice of Commercial Surrogacy’ Bioethics 24 (2010): 334. 6. Centre for Social Research, ‘Surrogate Motherhood: Ethical or Commercial?’ (2013): 23. http://www.womenleadership.in/Csr/SurrogacyReport.pdf (Last Accessed 08.08.16). 7. Doshi Vidhi ‘We Pray That This Clinic Stays Open: India’s Surrogates Fear Hardship from Embryo Ban’, The Guardian, 1 March, 2016. https://www.theguardian.com/world/2016/jan/03/india-surrogate-embryo-ban-hardship-gujarat-fertilityclinic (Last Accessed 08.08.16). 8. Amrita Pande ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, Signs 40 (2014): 970–91. 9. Raksha Kumar, ‘Trying To Tame the Wild West of Surrogacy in India’, Al Jazeera, 14 January, 2015. http://america.aljazeera.com/articles/2015/1/14/the-wildwest-ofsurrogacy.html (Last Accessed 08.08.2016) 10. Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’, Hypatia 26 (2011): 719. 11. Ibid., 719–21. 12. Ibid. 13. Casey Humbyrd, ‘Fair Trade International Surrogacy’ Developing World Bioethics 9 (2009): 112. 14. Bailey, ‘Reconceiving Surrogacy’, 719. 15. Rajeshwari Sunder Rajan, The Scandal of the State: Women Law and Citizenship in Postcolonial India (Durham and London: Duke University Press, 2003), 184. 16. Unicef, ‘The State of the World’s Children’ Executive Summary, http://www. unicef.org/publications/files/SOWC_2015_Summary_and_Tables.pdf (Last Accessed 08.08.2016). 17. Pande ‘Commercial Surrogacy in India’, 975. 18. Bailey, ‘Reconceiving Surrogacy’, 720. 19. Pande ‘Commercial Surrogacy in India’, 981. 20. Bronwyn Parry, ‘Narratives of Neoliberalism: “Clinical Labour” in Context’, Medical Humanities (2015): 5, doi:10.1136/medhum-2014-010606. 21. Panitch, ‘Surrogate Tourism’. 22. Parry, ‘Narratives of Neoliberalism’, 5. 23. Pande ‘Commercial Surrogacy in India’, 980. 24. Ibid., 976 25. Parry, ‘Narratives of Neoliberalism’, 3–4 26. Ibid., 5 27. Tea Logar, ‘Exploitation as Wrongful Use: Beyond Taking Advantage of Vulnerability’, Acta Anal 25 (2010): 333. 28. Ibid., 332. 29. Ibid., 330.

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30. Alan Wertheimer, Exploitation (New Jersey: Princeton University Press, 1999). 31. Alan Werheimer, Rethinking the Ethics of Clinical Research: Widening the Lens, New York: Oxford University Press 2010), 198. 32. Ibid., 202. 33. Ibid., 202. 34. Jeremy Snyder ‘Exploitations and Their Complications’, Bioethics 26 (2012): 251–8. 35. Wertheimer, Rethinking the Ethics of Clinical Research, 198. 36. David Resnik, ‘Exploitation in Biomedical Research’, Theoretical Medicine and Bioethics 24 (2003): 235. 37. Agomoni Ganguli Mitra, ‘Off-shoring Clinical Research: Exploitation and the Reciprocity Constraint’ Developing World Bioethics 13 (2013): 113. 38. Erik Malmqvist, ‘Taking Advantage of Injustice’, Social Theory and Practice 39 (2013): 566. 39. Iris M. Young, Iris M., ‘Responsibility and Global Justice: A Social Connection Model’, Social Philosophy and Policy 23 (2006): 114. 40. Young, Responsibility for Justice (Oxford: Oxford University Press, 2011), 47. 41. Ibid., 56. 42. Ibid., 58. 43. Ruth Sample, Exploitation: What it is and Why It’s Wrong (New York and Oxford: Rowman & Littlefield, 2003), 97–98. 44. Wertheimer, Rethinking the Ethics of Clinical Research, 203. 45. Panitch, ‘Surrogate Tourism and Reproductive Rights’, 286. 46. Parry, ‘Narratives of Neoliberalism’, 6. 47. Ibid. 48. Pande ‘Commercial Surrogacy in India’, 985. 49. Sayantani DasGupta Sayantani and Shamita Das Gupta Shamita Globalization and Transnational Surrogacy in India (United Kingdom, Lexington Books, 2014), Kindle Version. 50. Wertheimer, Rethinking the Ethics of Clinical Research. 51. Jonanna Sugden, ‘India Restricts Foreigners’ Access to Surrogate Mothers’, Wall Street Journal, 29 October, 2015. http://www.wsj.com/articles/india-restrictsforeigners access-to-surrogate-mothers-1446132042 (Last Accessed 08.08.2016). 52. Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’, Bioethics 17 (2003): 169–87. 53. Tanderup, Marlene, Reddy S., Patel T., Nielsen B.B. ‘Informed Consent in Medical Decision Making in Commercial Gestational Surrogacy: a Mixed Methods Study in New Delhi, India’. Acta Obstet Gynecol Scand 94 (2015): 465–72. 54. Pande ‘Commercial Surrogacy in India’, 971. 55. Tea Logar ‘Exploitation as Wrongful Use’. 56. Bailey, ‘Reconceiving Surrogacy’, 736. 57. Amrita Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, Indian Journal of Gender Studies 16, no. 2 (2009), 173. 58. Bailey, ‘Reconceiving Surrogacy’, 716.



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59. Young, Responsibility for Justice, 55 and 55–56. 60. Bailey, ‘Reconceiving Surrogacy’, 716. 61. Ibid. 62. Martha Nussmbaum, Sex and Social Justice (Oxford and New York: Oxford University Press, 1999), 151. 63. Serene Khader, Personal Communication. 64. Pande ‘Commercial Surrogacy in India’, 971. 65. Naila Kabeer ‘Between Affiliation and Autonomy: Navigating Pathways of Women’s Empowerment and Gender Justice in Rural Bangladesh’, Development and Change, 42 (2011): 499. 66. Jeffrey Kirby, ‘Transnational Gestational Surrogacy: Does it Have to be Exploitative?’ The American Journal of Bioethics 14 (2014): 24–32. 67. Vida Panitch, ‘Transnational Surrogacy and the Justice Condition of Nonexploitation’, The American Journal of Bioethics 14 (2014): 47. 68. Ibid. 69. Casey Humbyrd, ‘Fair Trade International Surrogacy’.

Chapter 8

‘Women’s Work’, the Ethics of Care, and Women’s Human Rights Lynda Lange

Alison Jaggar has recently argued that women’s cheap domestic and care work underwrites the entire global economy. Whereas national economies in the past and present have relied covertly on women’s unpaid domestic work and care work, Jaggar argues that the global economy now relies overtly on the low paid domestic and care work of women, and that this reveals global systematic differences between the lives of men and women whose circumstances are otherwise similar.1 The powerful association of women with work related to household tasks and care of family members is the oldest issue of ‘second wave’ feminism. Before concerns about global justice became part of feminist thinking, the solutions proposed were greater access to fields of employment from which women were barred, more public responsibility by governments, especially for care of children, and sharing of domestic work by men. These things have happened to a certain extent. However, the long-term intractability of this issue by means of mainstream political philosophy and economics, with their separations between public and private, and between the economy of money-generating activities versus the many activities that sustain us as human beings but are not counted by economics, has generated whole fields of study that challenge these putatively basic categories. Chief among these are the ethics of care in philosophy, and feminist economics, both of which are touched on in this chapter. The ethics of care, in particular, maintains that caring is a unique type of activity with its own moral imperatives different from considerations of rights and justice. I take issue with this, but also note problems in the call for recognizing and imputing value to women’s unpaid work in feminist economics. I suggest that the less radical response of enhancing women’s human rights, including labour rights as workers, is the most desirable and feasible response to systematic differences in the situations of 157

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women and men that are due to the gender division of labour. In making this argument I propose an unusual comparison between care work and sex work, which I explain. By rights, I do not mean only formal civil rights, but a range of positive claims to social resources and social reforms that can increase women’s range of uncoerced choice. Inevitably, this will have to be part of a broad response to global poverty, which can seem overwhelming in scope, but I argue that this approach suggests feasible actions in present circumstances that would lessen women’s vulnerabilities without impinging on their agency. THE PROBLEM It is a long established feminist position that women’s cheap and unpaid labour is essential to the functioning of every economy, because it produces and reproduces the people of each generation along with the things that people need on a daily basis to function, such as meals and clean clothes. Society needs workers, as well as future caregivers, and the arrangements wherein women could reliably be expected to take primary responsibility for this work, either on its own or in conjunction with paid work outside the home, greatly lessen the costs to the formal economy of getting it done. As we are generally aware, women have been greatly disadvantaged by this: it accords them many opportunity costs (especially leisure and participation in public life), loss of economic participation (especially personal income as opposed to the ‘livelihood’ of housewives), and relative subjection to the will of male economic providers, depending on the surrounding culture. National economies continue to rely covertly on women’s unpaid domestic work and care work: The Economist of 11 June 2016 reports that American women still do 62% of unpaid work in the household, and South Korean women do 83%. All this was brought to light by feminist theory decades ago, and readily deemed by most ‘second wave’ feminist thought to be a form of exploitation or oppression of women. Nonetheless, the complex of issues involved has yet to be resolved. For one thing, it is unclear who exactly is doing the exploiting or benefitting from it. Is it the patriarchal structure of marriage that sustains this, wherein men can, to one degree or another, avoid sharing this work? Is it the corporate world that evades these invisible costs, or is it governments that evade providing enough services to relieve women’s burdens of work, such as adequate childcare services or home care for the sick or elderly? Or is it society at large, citizens and taxpayers, who do not wish to support significantly greater services? For another thing, as I argue below, the work involved for women very often cannot be neatly classified as voluntary or coerced, work or personal activity, except when definitely a paid job. Yet even that exacts emotional engagement in care work.



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Economic globalization of the last three or four decades raises further questions about the lines of exploitation. Globalization has spurred unprecedented entry into wage work by women from poor, less developed countries, including labour migration that is primarily for labour-intensive manufacturing, domestic work, and sex work. As women in wealthy countries have entered the work force in greater and greater numbers, whether they take up the struggle for men to share the housework and care work or not, they have become simply much less available for their traditional activities. Domestic work (‘the maid trade’) is now an enormous global industry that is founded on the gender division of labour described above. The relatively greater advances towards equality of women in wealthy developed countries (which we ordinarily commend) rely on the availability of cheap domestic and care work. Virtually all of this cheap care work is provided by women who have migrated from poor countries for work, legally or illegally. No one disputes that the impetus for their migration is the poverty and disadvantage in the women’s countries of origin, whether or not they think that this work is exploited. Transnational trade in domestic and care workers, and the equally enormous transnational sex trade, now result in remittances that are a significant part of the GNP of some countries.2 Weir strikingly describes this as a global ‘off-loading’ of care, noting that the differences of privilege are exacerbated by the fact that this process often leaves a ‘care deficit’ in sending countries.3 We have no reason to think that this trend is reversing, at the same time as women’s care work in the family remains a very important issue for equality for most women. Live-in caregivers in wealthy countries are in every sense as much ‘working women’ as the women who employ them, that is, they have also moved away from traditional expectations for their domestic work in the family to seek work with personal financial remuneration. What might make their status as ‘working women’ hard to see is that they have stayed in the same enclave of domestic and care work that is still worldwide the most predominant expectation for women. However, it is not just live-in caregivers who migrate. Although it may not often be thought of in this way, much institutional development of the welfare state in the Northern/Western countries in the second half of the twentieth century provides care that was formerly supplied by women family members. This care is now partly supplied by nurses in public hospitals, and staff in elder care residences, residences for care of the disabled, day care centres, and ‘nannies’. Care institutions all require many non-professional support workers and this work is very often done by migrant or immigrant women who will accept low pay. That these programmes are still often considered insufficient in the wealthy countries only attests to the great social investment that is involved in care of all kinds, however that investment may be distributed between the private sphere of traditional women’s work and

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public programmes with paid care workers. The amount of labour migration by women, the size of the domestic work and sex industries and the amounts of money involved, in combination with the substitution in the wealthy countries of ‘women’s work’ with cheap migrant labour, makes the reliance on women’s unpaid or low paid labour overt. Credible feminist theory requires analysis of differences between groups of women. Some groups of women have enormous privilege in comparison with other groups of women. The result is that the binary of men and women is not the sole, or maybe not even the most significant, angle of exploitation in the gender division of labour. However, the emphasis on ‘difference’ in feminist theory, as Jaggar has observed in several articles, has obscured recognition of disparities between women and men that are globally systematic. In the field of global justice there is a strong argument that people in the wealthy countries are morally obligated to try to ameliorate severe global poverty and inequality.4 If we agree with this, women of the wealthy countries share in this obligation. We may be comfortable condemning the corporations that gain millions or billions from the existing global economic order but resist giving up even a small percentage of their profits. However, it is a real quandary when advances towards a morally desirable goal such as gender equality rely on the same economic factors. Feminist theory itself has insisted that questions of justice and rights, coercion and autonomy, and so on, apply to personal and domestic life as well as public life. It is this that gives this problem its particular edge for feminist thought. It touches us more than, say, the availability of cheap textiles, attributable to the same cause. THE GLOBAL PERSPECTIVE Three important feminist works form a series that offers structural analysis of the gender difference in life activity and its consequences for women, framing the issue in global context. After describing this series, I turn to the specific question of care work in the ethics of care and feminist economics. The first work is Susan Okin’s analysis of ‘the gendered cycle of vulnerability’, focused on the pattern of marriage in which the husband is the ‘breadwinner’ and the wife is the unpaid caretaker of the household. Okin argued that this gender-structured marriage tended to enhance the power of husbands in the private sphere and render women unprepared to support themselves outside of marriage. If women did work outside the home, this structure of marriage meant that they faced the sex typing of jobs, usually with low pay: ‘A cycle of power relations and decisions pervades both family and workplace, each reinforcing the inequalities between the sexes that already exist within the other’.5 Okin maintained that this systematic vulnerability was



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an injustice to women. Critics noted that the male breadwinner model of marriage which is Okin’s focus is far from universal, since poor women in wealthy countries and around the world must work and often cannot rely on husbands being able to find work that will support a family. Iris Young countered that Okin’s basic argument could be applied around the world if the patriarchal pattern of marriage that Okin treated as fundamental was reinterpreted.6 Young argued that the gendered cycle of vulnerability rests fundamentally not on marriage itself, but on the gendered division of labour. This division is characteristic of the pattern of marriage Okin analysed, but much broader, since it operates in both households and workplaces, regardless of actual marital status. It operates also to the detriment of single women, and women in extended families. Young states that the issue around the world is actually not equality or inequality in liberal terms. The gendered cycle of vulnerability operates in countries where women and men are legally or officially equal, and in countries where women’s equality is not recognized. The interaction of gender relations in the family with gendered norms in the workplace reinforces women’s vulnerability in both spheres. As more and more women enter waged work apart from the household, their global association with domestic and care work results in their concentration in low-paid, low-status, work derivative of ‘housework’ or family care. This continually produces and reproduces their lower status. Indeed, women around the world often seek work that they can do at home, so that they can continue to perform the domestic and care work expected of them. This enables them to earn income, but can greatly increase their burden of work. In very poor situations, girls may be pulled out of school to assist their mothers, thus further reproducing the gender division of labour as well as women’s relative poverty. Young notes that the focused hiring of women in some of the world’s most labour-intensive export industries further buttresses this gendered global division of labour. Employers and developing states have been pressured by international financial institutions applying neoliberal ideas of free trade to hire workers who can be induced to accept the lowest wages, that is, women.7 Jaggar extends and applies Young’s analysis to illuminate transnational or global gendered cycles of vulnerability that have developed during the period of economic globalization. According to Jaggar, and many others, economic globalization has actually increased women’s burden of domestic work because of the pressure put on developing economies by global economic institutions to reduce their expenditures on social services. In various places, these reductions have included everything from social security, to food subsidies such as school meal programmes for children, to health care, to basic infrastructure such as sanitation and electricity. This neoliberal ‘structural adjustment’ especially impacts women because it is they who try

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to compensate with their own unpaid work, or they who must adapt. She writes: ‘Although the cuts in social welfare provisions are not explicitly directed against women, they are predicated on the assumption that women’s unpaid labour will compensate for them, and they increase women’s gendered vulnerability’.8 Is it necessary to insist that women’s vulnerability in these respects is not due to the ineluctable natural differences between the sexes, even though in a global context this may be the predominant view?9 Feminist philosophy has dismissed that view, partly on grounds of existing diversity even within the global pattern, but more importantly because to accept it would be to accept a view that certain people (women) are born to a certain kind of work, a view close to feudalism or slavery.10 Most pertinent of all, we insist that social norms cannot be inferred from biological differences. Three features of traditional liberal political theory make it unsuitable for analysing the global gendered division of labour: the public-private distinction, the concept of rights as protections against state actors, and the issue of consent. The gender division of labour means that abuses of women in domestic/care work and sex work occur almost entirely in private, generally escaping identification as violations of rights, per se. Liberal notions of non-coercion focus on individual motives, which can mask background injustices of poverty and lack of opportunity. This sense of non-coercion is compatible with the approach to justice of neoliberal globalization, especially with respect to abstract rights to ‘non-interference’. Very low wages and bad working conditions can be said to be morally acceptable because ‘people will take the jobs’. Consent is at the heart of liberal notions of justice and rights, and it can be argued regarding both migrant care work and sex work that women who do this can be understood to be doing it because they want to. This is a question even in research on trafficking of women for sex work. Although ‘trafficking’ as such must involve some coercion, it can turn out that some women either know or suspect that sex work is what will happen, but take advantage of the opportunity for illegal migration, when legal migration with a chance to work is not a possibility. Christien van den Anker, whose work I turn to in the last section, writes, ‘The main common factor for women ending up in exploitative situations is their need to take risks in their strategies to survive’.11 In regard to legal migration for care work, such as Canada’s Live-In Caregiver programme, even though the pay is extremely low and it is virtually unheard of that a Canadian woman would want the job, it is possible to argue from the perspective of formal rights that the situations of these care workers are morally acceptable, since jobs are actively sought which can reasonably be described as offering benefits to poor women. Their children, including their female children, can benefit by, among other things, staying in school longer.



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Women can have an enhanced sense of agency and freedom by making this choice, and may have been enabled to leave abusive or other very bad situations. Even justice-theorizing economist Amartya Sen shares this view.12 This is to say nothing about the social construction of marriage and children throughout the Northern/Western world as a matter of free choice, in the context of the cycle of vulnerability Okin and others have identified. As I shall argue below, without meaningful social and economic rights and protections, women in many countries face highly constrained contexts of choice.13 THEORETICAL APPROACHES TO THE PROBLEM OF ‘WOMEN’S WORK’ Much of the difficulty of resolving the question of gendered work is due to the indeterminacy of the type of work that is done, and whether or not it is work like other work. For example, the ethics of care argues that, unlike, for example, agricultural work, care activity is a unique form of activity on which can be based ethics and politics that offer an alternative to the thinking that has hitherto made this activity invisible in theory, and insufficiently recognized in practice. If we discard the notion that women’s work of caring is natural or inevitable, then what is it? I think it can be said, without fear of contradiction, that it is at the core of the gender division of labour, far more so than general domestic labour, which can usually readily be recognized as work, whether it is paid or unpaid. It can also be said that it is at the core of forms of exploitation particular to women. I suggest that care work shares this position with sex work, which is also overwhelmingly associated with women, and also at the core of abuses or exploitations particular to women, and also continues to generate debate about whether it is work like other work, or something we should strive to eradicate. Brysk writes that ‘policies aimed against trafficking of women for sex work often aim to stop commercial sex rather than the violence, exploitation, and other harms associated with it and with other forms of labour and migration’.14 I hasten to add that I argue for the comparison of care work and sex work, not in general, but only in the particular respects I set out above. This comparison does not require denying the many cultural, moral, and affective motivations there can be for doing care work. Although it is not central to her main argument, Jaggar also compares women’s domestic/care work and sex work in two senses. One is the extent of the transnational trade and women’s migration in both domains. The other is that both are founded on ‘asymmetric constructions of femininity and masculinity’, from which are derived both the gendered division of labour and the sexual stereotypes that inform the sex trade. She points out that these

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stereotypes are now truly globalized by the internet, and through advertising, entertainment, and pornography. In fact, it is not uncommon for care work and sex work to appear in the same discussion. For example, Rachel Silvey writes that ‘internationally, women migrants are disproportionately located in many of the lowest paid, least secure, and least protected employment sectors, including domestic work, child care, elder care, and sex work’.15 Next, I look at the treatments of care work in the ethics of care and in feminist economics and find them unpromising as avenues to address the fundamental issue of the gender division of labour and women’s disempowerment because of it. The Ethics of Care Proponents of an ethics of care see it as a response to the limitations of political theory, framing it either in opposition to rights discourse, or as a supplement that is of a different order. The ubiquity and necessity of care work is always invoked as an argument in support of the claim that this work should be first recognized and then valued much more highly than it actually is. In various ways all care theorists set out the unquestionable truth that even the most healthy and ostensibly independent of us would not be functioning as we are, or indeed living at all, without the care that has been given to us as infants and children, as persons who are sick, or as elderly persons or disabled persons unable to do what adults are ordinarily expected to do for themselves. It is also unquestionably true that care work is undervalued and overwhelmingly done by women. In view of the seeming inadequacy of the language of justice and rights described in the previous section, the ethics of care has sought to enrich or replace the language of justice so as to define the harms that the language of justice does not seem to identify. For example, Eva Kittay identifies the harm to mother–child relationships when the mother migrates a great distance away for work, as the chief moral harm, given that the migration seems to be done willingly.16 This focus is due to her relational view of the self, wherein harm to relationships is the greatest harm. However, although the care worker can be seen on one level to be doing this willingly, the poverty and limitations of her background can also be seen as a form of coercion. Meyers argues that in countries with a large deficit of decent work, poverty is a form of coercion that can justify economic migration, even if illegal.17 However, this is something the language of justice can in principle deal with. Kittay herself writes that ‘it seems as if the most caring thing those of us who reside in these receiving nations ought to do may be to fight for more just global distributive policies’.18 What is most important, in my view, is that displacement of questions of morality or justice from interactions between individuals to systemic injustices is necessary to deal with the global gender division of labour.



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It appears that the politics of the ethics of care, which advocates for more and better care to better meet human need, and in statements like that of Kittay above, suffers from pervasive conflation of ‘hands on care activity’, and ‘caring’ in an affective or moral sense. For example, my caring concern for homeless children in India and advocacy for more care for them, however sincere, may or may not require much time or energy from me, but my care for small children ‘in my care’ definitely will take time and energy which I am not at liberty to minimize very much. For clarity, here is my own definition of ‘reproductive care’ in the parent-child relationship: It is ‘the time and effort expended giving physical care, emotional nurturance, and active socialization to a dependent human, from the point of birth to the point of personal independence’. This definition is meant to call attention to the materiality or physicality of care when it is ‘hands on’. Is care work like other work? Clearly it can be. According to the economists’ ‘third person criterion’, care is work if it could be performed by someone else. By contrast, I cannot hire someone to do my exercising or praying or studying for a test, so these are personal (not work in the relevant sense). The trouble with caring, and even hands-on caring, is that it is ambiguous between these two. While someone else can very well work at taking care of my small child, my actual presence adds something personal, for both myself and the child, that someone else cannot provide. The ethics of care has been criticized on the ground that it may tend to ‘essentialize’ women’s propensity to care, thus valorizing historically feminine traits for women. Setting this aside for the moment, in my view it could be seen as either essentialist or reifying in a completely different sense that was suggested to me by reading feminist economics. This is the sense in which ‘care’ and ‘care work’ are treated as having a value that is determinable and given in the relationship (even when not recognized). Held, Kittay, and Miller hold the view that relationships, especially caring relationships, are a primary moral value. ‘Relationships’ in this view seem to be a kind of non-extraneous reality that in themselves deserve moral attention, in addition to the persons in the relationships. But ‘care’ and ‘relationship’ vary enormously. A mother may be working in a wealthy household in another country for very low wages, giving care, yet the presence in the household she has left behind of women who take up the caring she cannot do, does not replace the ‘units of care’, if there were such a thing, that she cannot provide. The time of those who remain in the sending countries is worth even less than that of the poorly paid migrant worker. In very poor households, anyone who can make any income will be urged to do so, so it can easily be imagined that care falls on those who absolutely cannot do anything that creates cash income. By contrast, the provision of care can be corporate enterprise. It is labour intensive, which

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helps explain why it is women who are hired to work at it, and it is difficult to improve productivity (not that it has not been tried). Privileged mothers hire disadvantaged caregivers, without withdrawing their own ‘caring’ for the child. In short, there is fantastic variation in the perceived value of care, and its economic value ranges from profitable enterprise, to substantial privilege, to values approaching zero.19 The attempt to define care by relationships faces many complex difficulties. The critique of the language of rights in the ethics of care often appears to presume the narrow language of formal civil and political rights, the kind of rights that a neoliberal economy is happy to support. If we expand the list of rights to include social and economic rights, the argument against rights as a criterion is much less persuasive. It is by now a very well-known critique of universalism and individualism in ethics and political theory that they have privileged and normalized culturally masculine or Northern/Western ideals of self-sufficiency and autonomy, and implicitly promote self-centred behaviour without concern for community. Yet if one expands the goal of rights to include social and economic rights, it becomes apparent that this need not be the case. The existence of positive claims on a society might well enrich a sense of community or nationhood. In the last analysis, however, what seems most striking to me about the ethics of care is that it does not seem to have as a primary goal the relieving of women’s onerous burdens of domestic work, much less the lightening of the gender division of labour in either paid or unpaid work. Held, in a chapter called ‘Care and Justice in the Global Context’, sets out particular caring relationships, such as families and parent-childcare, as both the ‘school’ for care, which she maintains all of us have experienced as morally informative, and also maintains that these relationships should be seen as an ethical model for both national and global politics.20 It can be difficult in Held to discern a real difference between the ethics of care and the ethics of an expanded notion of social and economic rights. She writes that ‘the priority given to civil and political rights over economic and social rights […] in much liberal theorizing about democratization has been especially unfortunate for women’, a point with which I am in complete agreement. Held maintains that an ethics of care is morally prior to fulfilment of rights, that is, that rights will be better fulfilled if founded on caring, at the same time as she admits, or even insists, that her approach can involve privileging existing relations of care, for example, families or particular communities, where expectations for care are at odds with respect for the rights of all individuals in the family. However, expectations for care largely comprise the gender relations in the family that enter into the gendered cycle of vulnerability, so that to set aside rights in their favour would be to favour the status quo for women.



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Robinson makes a very strong statement of the view that the ethics of care should replace the ethic of rights or justice.21 She takes issue with the philosophical individualism that underlies rights, regarding it as a universalism that glosses over differences among people, and posits them as ‘isolated individuals, rather than members of households, families, communities, and societies’. She criticizes Thomas Pogge’s argument that there is a global economic order that benefits a minority of wealthy countries and in effect perpetuates extreme poverty for millions of people on the ground that it fails to reveal many structural relations of global inequality that are traceable to care work.22 Like others, she emphasizes the underprovisioning of care globally. Robinson emphasizes the importance of actual, concrete families and communities, stating that ‘caring values and caring relations can only make sense in the context of the real lives of those engaged in them’. Consonant with this, she praises ‘diversifying movements’ which are local self-help movements that of course act in response to particular local conditions. I cannot concur with Robinson that it is a virtue of these movements that they do not try to ‘persuade capitalist institutions to meet the needs of working people’, nor do they call for ‘the redistribution of wealth and power’. In the beginning of her article Robinson explains that it is economic globalization itself that now makes it inadequate to confine questions of justice within state boundaries, and seemingly does not dispute Pogge’s claim that such a broad global hierarchy actually exists. If it does exist, it surely places severe limits on what can be accomplished locally in poor countries. As such, it deserves to be a primary object of criticism, even if it does not in itself delineate all structural inequalities. In the same vein as Robinson, Sarah Clark Miller proposes an ethics of care as a global ethic, stressing the duty of care to try to attend to the fundamental needs of all persons.23 She includes in this the duty to respect ‘local understandings of care’, because it is better to try to enhance local capacity to meet local needs than to enter with aid that may diminish people’s sense of agency. Unfortunately, local understandings of care will virtually always involve women’s unpaid work and the gender division of labour, along with a local sense of women’s obligations. In sum, the global application of the ethics of care seems to have more to do with international relations or development aid than the improvement to global systematic inequalities in women’s situations. Feminist Economics Like the ethics of care in philosophy, feminist economics challenges the most fundamental categories of its field. It does this in a way that is very analogous to the intent of the ethics of care, that is, by drawing attention

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to the contributions made by what women do that do not figure in the analyses and debates in the field. Domestic and care work are ‘invisible’ in economic theory because they are largely accomplished without any market exchange, and economics only theorizes about exchanges of money in the market. Thus housework, cooking, as well as childcare and subsistence agriculture (mostly done by women in developing countries) are technically ‘not productive’. In ‘Everything Needs Care’, Sabine O’Hara writes ‘the real economic process is quite different from that portrayed in standard economic theory’.24 This is shortly followed in O’Hara by a brief account of the ethics of care, adding to the sense that the two fields are highly comparable. Marilyn Waring and other feminist economists provide the history of some projects, primarily in the Nordic countries, of counting women’s unpaid work as part of the economy, but this lost all influence with the creation in 1953 of UNSNA (UN System of National Accounts) which required countries to count only market transactions as part of GNP. O’Hara begins her piece with a statement that fully supports Jaggar’s claim that women’s cheap domestic and care work underwrites the entire global economy. She writes: Forerunners in [feminist economics] like Marilyn Waring, Maria Mies, and Hazel Henderson, have long pointed to the need to consider the underlying fabric of economic activity and those who provide and sustain it. The scope of these activities includes reproductive services, care-taking services, and supportive services that often take on gendered and cultural biases rather than being provided in a flexible and skills-based manner. (O’Hara, 37, my emphasis)

Like the ethics of care, feminist economics emphasizes the enormous and socially necessary contribution that care makes to all societies and complements work in the ethics of care by spelling out in the scholarly terms of economic theory how significant care is. And as with the ethics of care, the actual inadequacy of existing systems of care is given central importance in the literature. The problem with these arguments in both fields is that the ubiquity and necessity of anything is never sufficient to bring about recognition and a higher valuation of it; there is often a disconnect between practical need and ‘demand’. For example, although we all without exception need food, agricultural workers are among the most abused and exploited in the world, at the same time as millions go hungry. However, in feminist economics there is regular reference to ‘justice’ and ‘fairness’, which supplies the suppressed premise in this argument in feminist economics itself, pointing to the need for social and economic rights. The ethics of care in philosophy, to the extent that it sets aside the language of justice, seems to be in a weaker position here.



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Feminist economics has said little about the practical implications of the ‘recognition’ or ‘validation’ of domestic work, apart from the need for publicly subsidized childcare. An extensive study of the extent of women’s unpaid work in Finland yielded no uptake from Finnish economists, or academic studies such as sociology or women’s studies.25 There was no interest from home economics, which had traditionally been one of the advocates of the economic value of unpaid work, which had developed a new holistic approach focused on health, cultural diversity and moral aspects of housekeeping. An additional concern is that there seems to be an inherently conservative element in feminist economics, inasmuch as household production is reflective of household cash income, since ‘unpaid work alone does not make meals or other services’.26 Calling for recognition and revaluation of ‘women’s work’, perhaps with increased public supports, will arguably not bring about structural change so long as the necessary thing is being accomplished under the existing systematization wherein it can be presumed that it will mainly be women who do it. I turn to some work on the global sex industry that argues that this industry, and the transnational trafficking that is endemic to it, are traceable to the same causes that bring about women’s labour migration in general, as well as trafficking for forced labour in other industries such as agriculture and labour-intensive manufacturing. This suggests to me that enhancing women’s human rights which does not depend on an ethical evaluation of the kind of work typically done by women is the best approach to reducing women’s vulnerabilities. WOMEN’S HUMAN RIGHTS It is argued by van den Anker and Brysk that moral questions about sex work, and questions of whether or not it is work like other work, are not as important as advancing the agenda for the women’s rights debate. In their view, endemic poverty coupled with the impact of neoliberal economic policies are the root causes of women’s labour migration, labour exploitation, and trafficking for coerced labour. In situations where it is difficult for men to find employment, women always have care and sex to offer, and there is always demand, especially by means of migration. The literatures on trafficking of women for sex work and trafficking for other kinds of coerced work have been taken to be two separate fields. Anker declares that when these two fields of research are put together, the misleading standoff between ‘liberals and moralists’ (over sex work) can and should be overcome, the better to see that the structural factors or root causes are

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basically the same.27 When we are thinking about the ostensibly willing migration of care workers to a country like Canada, it can be forgotten that, globally speaking, domestic work and care work (including nursing) are also objects of trafficked or forced labour. The value and/or meaning of women’s activity in care and sex remain contestable. This does not need to be resolved in order to see that women as individuals are often abused or exploited in these activities, due to their lack of options and poverty. Without naming it as such, both Brysk and van den Anker observe the gendered cycle of vulnerability. Brysk states that the worst harms done to women are usually ‘private’ and that the basic problem is women’s relative lack of power; in the context of poverty and the structural pressures created by neoliberal globalization, abuse of women labour migrants also results from ‘preexisting domestic practices of commodification of female reproductive labour, such as prostitution, forced marriage and domestic service, and patriarchal control of women’s movement, education and employment – enforced by gender violence’.28 She calls for analysis of the pressure on decisionmaking within male-dominated families concerning what women and girls will do. Anker also states that gender discrimination in households is one of the root causes of women’s search for migration options. In contrast to the focus of ethics of care on preserving relationships, Brysk notes that women are not always safe either in their communities or their families, at the same time as the migration they may choose as an escape route also leaves them vulnerable to violence and abuse. A major factor is lack of public affirmation of women’s equality and rights in sending countries, although we may be reminded here of Young’s observation that the gender division of labour operates even where women are officially equal to men. Neither author cites cultural practices as a basic factor, at least not in and of themselves, but rather specifies particular problems such as lack of education, early or forced marriage, and informalization of female-typed labour (offering few or no labour protections) in both sending and receiving countries. They thus avoid blaming non-Western cultures, or blaming the victims as ignorant of their own best interests. Like Diana Meyers, they advocate that the same sort of help should be accorded to both legal and illegal migrants. Brysk states emphatically that ‘empowering women is more effective than rescuing them’.29 She seems to have in mind labour rights, and the strengthening of labour organizations for all migrant workers.30 Both authors stress access to justice, for both sex workers and other kinds of workers: there should be access to expanded mechanisms of legal and financial accountability for labour abuse of migrants. Anker notes that the Council of Europe in 2005 adopted a convention with an ‘impressive array of international standard setting in the area of human rights, the rights of migrant workers and



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labour rights’.31 At the global level, the United Nations and the International Labour Organization address these issues. Brysk notes that the ‘maid trade’ is the main migration route beyond sex work for many young women from sending regions. Although the gender gap in power is greatest in sending countries, the private sphere – including care work and sex work – is the most unequal workplace in developed countries. After public attention was brought to the extent of abuses, in 2010/11 Canada’s federal Live-In Caregiver Programme improved protections for live-in caregivers, at least on paper, although it still has significant restrictions on workers as well.32 The Philippine Women’s Centre of Ontario has characterized the struggles of live-in care workers as overworked and underpaid workers under modern-day slavery. This was after the reforms of the programme.33 Protection and access to justice for all migrant workers can be enhanced at regional, national, and global levels through existing organizations. However, both authors stress that lessening women’s vulnerability requires changes such as ‘increases in women’s incomes, education, and reproductive freedom’ (Brysk) and ‘political participation, social entitlements, and reproductive rights’ (Anker). The latter type of change would have to be effective locally to make a difference. In these particular papers, the question of who might achieve these kinds of changes is not directly addressed. It can be a goal of development aid, which is the import of UN Sustainability Development Goal 5, ‘Achieve gender equality and empower all women and girls’. Those of us in wealthy receiving countries can support the goals of organizations of migrant workers in our own countries. The live-in caregiver and agricultural stream of temporary foreign workers in Canada both have their own organizations, with many similar aims, such as better access to ‘permanent resident’ status. Better pay is an obvious improvement for migrant or immigrant care workers both in the private sphere and in care institutions, which is something that would require a degree of public support or advocacy in developed countries such as Canada. There are also ways of supporting local organizations working for women’s rights around the globe. Brysk maintains that all forms of labour are linked to sexual abuse in conditions of gender inequity, which seems to be an unfortunate global truth in spite of differences among groups of women. She also writes that all forms of labour migration are potentially exploitative. The latter point brings us back to the issue of the global poverty that is the impetus for so much migration, and the question of what our obligations are with that. Anker is not so focused on labour rights, but shares with Brysk the view that the only real improvement in the exploitation of women’s migrant labour will come from improvement in the rights of all women, regardless of their sphere of work. Anker steps away from debates over universality and whether

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women’s rights are ‘special rights’, taking the position that all human rights are interdependent and the optimistic view that women’s rights are now widely seen as an integral part of human rights.34 The new Sustainable Development Goals give some credence to that view. WOMEN’S RIGHTS AND THE GENDERED CYCLE OF VULNERABILITY The last item in my argument is to explain how enhancing women’s human rights is an important way of impinging specifically on the gendered cycle of vulnerability, and that enhanced rights do so more reliably than attempting to revalue domestic and care work in radical ways. If we take the gendered cycle of vulnerability seriously, the constant systematic interaction between these two spheres could be not only the negative reinforcement of women’s vulnerabilities but also positive effects from one sphere to the other. The model of negative feedback presumes a constancy in facts and attitudes about women at a given place and time. My thought is that the introduction of a new factor, such as increased empowerment of women through ‘new’ rights (whether newly acquired or newly recognized and enforced), could have a ripple effect on the cycle. For example, more thoroughly enforced equal rights to education for girls and boys would change the perception of girls in the household. It would do this partly by making girls less available for private domestic and care work, a reality that indicates the necessity of local support for this goal. At the same time, it would help girls to be more independent later in seeking employment, and in making choices in marriage, comprising a full loop of the cycle of vulnerability. Confinement to the household of women goes hand in hand with women’s inability to gain both economic and political participation. Freedom of movement out of the household sphere is a basic civil right that affects women’s degree of power in the public sphere. The freedom to work for pay, and keep one’s own pay, clearly increases women’s relative status in the household. Of course, access to health care that includes contraception and abortion is also an empowerment of women that is private, but has enormous implications for their position in the public sphere. There is a well-intended anti-colonial aspect to the criticism of universal rights in Robinson and other care ethicists. Unfortunately, outside of feminist theory, anti-colonial non-acceptance of universal individual rights usually centres precisely on the social structures (especially families) that produce both care and gender inequality. Relationships to family and other groups just are the structure of ‘women’s work’. Relationships to family are the historical source of the political and ethical bracketing within the male-dominated



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family that has made women’s work invisible in political and economic theory. As a result, changing the nature of their relationships is the challenge women face in overcoming the disadvantageous gendered division of labour. Human beings constantly create and recreate the meaning of both care and sex, and in these meanings we find both the bounds and possibilities of gender. The ethics of care attempts to change the meaning of care by giving care per se a greater value than it has had, and binding it to relationships that in my view are ultimately the problem rather than the solution. Women need a range of individual rights as persons to increase their range of uncoerced choice of what they will do and what meaning it has for them. In my view, effective individual rights for women, far from being inimical to caring and community, are actually prerequisite to any systematization of caring to which we want to accord ethical acceptance. In conclusion, conventional political theory and economic theory have both ignored women’s domestic and care work, and as a result failed to analyse the global systemic structure of women’s disadvantages relative to men. In Transnational Cycles, Jaggar states that her analysis does not require commitment to any specific normative theory about exploitation, rights, capabilities, domination, oppression, etc., with regard to the effects of the transnational gendered cycle of vulnerability.35 What is critically important is knowledge of this global cycle, that is, that it exists and how it works. It is true that with this knowledge various normative approaches can be imagined that could have an ethically acceptable effect, and it is probable that more than one approach is needed. Indeed, this chapter suggests that we need to strive to lessen global poverty, protect all migrant workers from abuse, and enhance the rights of individual women. Some of us are privileged to feel that we have freely chosen to give care to certain others, and it would be perverse to say that giving care is exploitative in itself, even in light of knowledge of the gendered division of labour. While there is no such thing as totally free choice, it is very reasonable to investigate the multiple kinds of constraint and coercion that currently result in women’s performing most of the world’s unpaid and low-paid care work. Investigation should target private and familial, as well as public, wrongs, making the case for the kind of rights, both civil and socio-economic, that leave women less vulnerable to private abuse. The sacrifices of voluntary migration for work that is low paid and low status should be seen for what they are, a choice with some benefits but constrained by lack of options. In receiving countries, this work can be made less onerous. Investigation should continue to look at the background constraints of poverty and lack of opportunity, displacing the analysis from personal interactions to structural and institutional factors. Results will inevitably be matters of better or worse, rather than a clear concept of exploitation.

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NOTES 1. Alison M. Jaggar, ‘Transnational Cycles of Gendered Vulnerability: A Prologue to a Theory of Global Gender Justice’, in Gender and Global Justice, ed. Alison M. Jaggar (Cambridge, UK: Polity Press 2014), 29. 2. Ibid., 37, ff. 2, reports that the sex trade is estimated to have a turnover of $5–7,000 billion, greater than the combined military budget for the whole world; from Paola Monzini, Sex, Traffic: Prostitution, Crime, and Exploitation (London: Zed Books, 2005). 3. Alison Weir, ‘The Global Universal Caregiver’, Constellations 12 (2005): 313. 4. Elizabeth Ashford, ‘Severe Poverty as a Systemic Human Rights Violation’, in Cosmopolitanism Versus Non-Cosmopolitanism, ed. Gillian Brock (Oxford University Press, 2013); Gillian Brock, ‘Global Poverty, Decent Work, and Remedial Responsibilities: What the Developed World Owes to the Developed World and Why’, 119–45, and Alison Jaggar, ‘Are My Hands Clean? Responsibilities for Global Gender Disparities’, 170–94, both in Poverty, Agency, and Human Rights, edited by Diana Tietjens Meyers (New York: Oxford University Press, 2014); Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity, 2008). 5. Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), 4. 6. Young, Iris Marion, ‘The Gendered Cycle of Vulnerability in the Less Developed World’, in Debra Satz and Ron Reich, eds. Toward a Humanist Justice: The Political Philosophy of Susan Moller Okin (Oxford and New York: Oxford University Press, 2009), 4. 7. The World Bank, International Monetary Fund, and World Trade Organization, as well as the United Nations itself, are the institutions that mainly represent the global economic order established after WWII. 8. Jaggar, ‘Transnational Cycles’,? 9. I take my cue from Jaggar, who did find it necessary to this point. 10. It is striking how commonly the allusion to ‘slavery’ is made in writing about this problem. Feminist economist Marilyn Waring uses it freely. International Labour Organization (ILO) notes that abuses of domestic and care work are often in ‘slavelike’ conditions. It is even used a lot by Canadian organizations of live-in caregivers who are filling positions under a government programme for temporary workers. 11. Christien van den Anker, ‘Trafficking and Women’s Rights: Beyond the Sex Industry to ‘Other’ Industries’, Journal of Global Ethics 2, no. 2 (2006): 177. 12. Some experts on global poverty argue that the chance to migrate for jobs is a valuable opportunity for poor persons to better their situations, and hence argue for easier labour migration. See for example The Global Poverty Consensus Report (Academics Stand Against Poverty, 2015). 13. See Monique Deveaux, ‘Normative Liberal Theory and the Bifurcation of Human Rights’, Ethics and Global Politics 2, no. 3 (2009). 14. Brysk, Alison, ‘Sex as Slavery? Understanding Private Wrongs’, Human Rights Review 12 (2011): 260. 15. Rachel Silvey, ‘Transnational Rights and Wrongs: Moral Geographies of Gender and Migration’, Philosophical Topics 37 (2009): 75.



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16. Eva Feder Kittay, ‘The Global Heart Transplant: The Moral Quandary of Transnational Caregivers’, Southern Journal of Philosophy 46 (2008). 17. Diana Tietjens Meyers, ‘Rethinking Coercion for a World of Poverty and Transnational Migration’, D.T. Meyers ed. Poverty, Agency, and Human Rights (Oxford University Press, 2014). 18. Kittay, ‘Global Heart’, 33. 19. See Lynda Lange, ‘Globalization and the Conceptual Effects of Boundaries Between Western Political Philosophy and Economic Theory’, Social Philosophy Today 25 (2009). 20. Virginia Held, The Ethics of Care: Personal, Political, and Global (New York: Oxford, 2006). 21. Fiona Robinson, ‘Care, Gender, and Global Social Justice: Rethinking “Ethical Globalization”’, Journal of Global Ethics 2, no. 1 (2006), 5–25. 22. Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity, 2008). 23. Miller, Sarah Clark, ‘A Feminist Account of Global Responsibility’, Social Theory and Practice 37 (2011). 24. Sabine O’Hara, ‘Everything Needs Care: Toward a Context-Based Economy’, in Counting on Marilyn Waring, ed. by M. Bjornholt and A. McKay, 40 (Bradford, ON: Demeter Press, 2014). 25. Johanna Varjonen and Leena M Kirjavainen, ‘Women’s Unpaid Work Was Counted But …’, in Counting on Marilyn Waring, eds. Bjornholt and McKay (Bradford: Demeter Press, 2014). 26. Ibid., 81. 27. van den Anker writes that some want to regard sex work as comparable to any other type of work and some argue that prostitution is immoral and a form of oppression of women in itself, in van den Anker, ‘Trafficking’, 178. 28. Brysk, ‘Sex as’, 267. 29. Ibid., 265. 30. Now that neoliberal views are beginning to lose some of their lustre, even for some former proponents, an increase in labour rights is at least not unimaginable. 31. van den Anker, ‘Trafficking’, 166. 32. Seasonal agricultural workers are another stream of Canada’s Temporary Foreign Worker Programme, and women are also in this stream. 33. www.magkaisacentre.org 34. van den Anker, ‘Trafficking …’, 179. 35. In ‘Saving Amina’, 2005, Jaggar argues that a rights approach to women’s situation is best, and that concepts of ‘capabilities’ do not add any advantages. In ‘Are My Hands Clean?’, Jaggar returns to the arguments in favour of a rights approach.

Part III

RETHINKING THE BOUNDARIES AND CONTEXTS OF EXPLOITATION

Chapter 9

Exploitation and the Global Demands of Beauty Heather Widdows

This chapter will consider whether exploitation is a useful framework in which to understand the increasing pressures to comply with globally more dominant and demanding beauty norms. At first glance beauty is not an obvious topic when one considers exploitation, especially when set alongside more standard global justice concerns such as global surrogacy, body part sales, economic deprivation, and social exclusion. Beauty pressures fall broadly and while they may add to and combine with other pressures, such as economic deprivation, they also apply across the spectrum and to those who are not obviously lacking in choices and options. Those with a range of options are not standardly considered to be vulnerable to exploitation, but as the demands of beauty extend, the question of whether or not exploitation is occurring in the beauty context merits philosophical attention. As individuals we do not choose our beauty ideals; arguably we choose the extent to which we conform to them, but the extent to which we can do this is limited by the dominance of the ideal. While we are able to choose within the ideal what to embrace – we can pick whether we wish to freeze our faces, lift our buttocks, or suck the fat from our thighs – we cannot readily pick a different ideal. That conforming is required, especially as the demands rise and more is necessary to attain minimal standards of beauty, is morally troubling. Despite the discourses of choice and pleasure which surround beauty practices, beauty norms are increasingly harder to refuse and resist, and nonconformity is costly. This chapter will explore the extent to which theories of exploitation can help account for the morally troubling features of the demands of beauty. In particular, it will consider the extent to which transactional and structural accounts of exploitation are useful in this regard. It will ask whether either of these accounts explains the requirement to conform to beauty ideals and the 179

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limited and constrained nature of choice in the beauty context. The chapter is divided into three parts; the first will map the increasing demands of beauty, the second will consider transactional exploitation, and the third systematic exploitation. The chapter will conclude that while at first glance exploitation looks to be a promising philosophical framework to explain the demands of beauty – as vulnerabilities are being created in order to be exploited – ultimately it is unsatisfactory. THE RISING DEMANDS OF BEAUTY In this section I briefly track the increasing demands of beauty: first, that the beauty ideal is more dominant now than it has ever been in that it applies to more types of women and for more of their life span; second, that what is required to meet minimal standards of beauty is more demanding; third, that the ideal is narrower and increasingly global. As it becomes more dominant and demanding beauty matters more, and as such the beauty ideal becomes harder to resist and reject, and engaging in beauty practices and procedures becomes required rather than optional. If beauty practices are required and to not engage is impossible, then the extent to which exploitation is occurring, or that beauty choices are exploited choices, becomes pertinent. To define the dominant beauty ideal, I highlight five key features thereof: thin or slim, smooth and hairless (fast becoming more important across races and for both sexes), golden- or bronze-skinned (which usually means tanned white skin and lightened black skin), firm and buff (‘strong is the new sexy’). Some curves are acceptable but only if they are not wobbly or lumpy. So large backsides are good, but only below a skinny waist and above shapely legs (and bum lifts and implants is a growing trend, with the American Society for Plastic Surgery reporting buttock augmentation, lifts and implants to be among the fastest growing procedures).1 The fifth, and most important, is youth: to be beautiful you must look young, you must erase your wrinkles and eradicate sagging, ageing, and pigmented skin. The beauty ideal is becoming more dominant as it applies to more types of women. The ideal applies to all women in the public sphere, whether or not they are in the beauty business or connected businesses where appearance is an integral part of their role. For example, politicians are judged with regard to their looks and judgements about their character and ability to do their prospective role is read directly from their looks (consider discussions about Hillary Clinton’s electability which refer to her changing wardrobes and hairstyles).2 The ideal also applies to private individuals with websites devoted to fashion at the school gates (making drop off and pick up a point where appearance matters), to social media profiles being ‘liked’ or not (a key source



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of self-esteem especially for the young). In such ways the beauty ideal is an increasingly important ideal for all women and across professions and lifestyles. Irrespective of success in other areas, women are judged with regard to the extent to which they conform to the dominant beauty ideal.3 As well as applying to more types of women, it applies for more of their life span. It begins as young as three. Nearly half of girls aged 3–6 are anxious about how they look and a third would like to change their weight, hair colour, or another aspect of their physical appearance. In one study, girls aged 3–5 were asked to make judgements about three silhouettes of different sizes.4 These girls exhibited strong preferences for thinness expressed in terms of who they want as playmates and best friends. They also attached qualities to the silhouettes, some positive (nice, smart, has friends, neat, cute, and quiet), some negative (mean, stupid, has no friends, sloppy, ugly, and loud). The demands not only start younger, but continue longer. In a recent survey of women over 50, only 12% reported being happy with their body size, with 77% saying that shape played a primary role in their selfevaluation.5 Here technology is crucial – and analogies with reproductive technology are pertinent – pressures which used to end or at least relax at the menopause now continue. In addition to being more dominant – applying to more women and for longer – the beauty ideal is more demanding when compared to previous beauty ideals.6 In short, what is required to meet minimal standards for all women is rising and what is considered normal is increasingly hard to attain. This is illustrated if one looks at the increase of routine and minimal practices, such as those involved in maintaining hair colour and styles, skin tone and texture, and the constant requirements of body hair removal. The removal of body hair, to use just one example, like so many beauty norms, is evident across cultures and increasingly applies to men as well as women. The changes to norms of body hair are dramatic and have happened over a relatively short period of time. These norms are significant in terms of showing increase of minimal demands as well as pointing to the shared dominance of such norms. Non-compliance is policed and failing to remove body hair is not just regarded as an aesthetic failure but implies moral failure.7 It is now the norm to remove most visible body hair. In public – at the beach, or the pool, or on a night out – ‘de-fluffing’ is regarded as routine, like washing or teeth-cleaning. But hair removal has some serious health risks.8 As hairless becomes the only acceptable norm, the ideal becomes more powerful and also more difficult to resist. Hairy armpits are now effectively a political statement rather than a fashion choice, and body hair is increasingly regarded as dirty, which has moral as well as physical connotations associated with disgust and shame.9 Furthermore, beauty ideals are converging and there is an emerging homogenizing global beauty norm. The trend to thinness is undoubtedly

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global. For instance, African men now find attractive ‘younger, thinner women with a lighter, yellower skin colour and a more homogenous skin tone’.10 Likewise, the trend for smooth and hairless is global and applies across racial and ethnic groups and golden-skin tone is desirable globally and requires the use of risky and harmful products to attain it: tanning booths have long documented serious consequences and skin-lightening cream, which is full of toxins, is considered a growing public health risk in parts of Africa, Asia and Latin America.11 Evidence for an emerging global norm can also be found in surgery trends. Breast enhancement remains the most frequently performed surgery, something which is not surprising given that most women (across ethnicities) require implants to be both thin and large breasted.12 Some surgeries apply only to certain ethnic types, such as the facial surgery which is on the rise across Asia and is in some instances extensive. For instance, a popular surgery is the double eye lift (which is estimated to be used by a third to a half of women in South Korea), and this is often accompanied by facial surgery to enhance cheek bones and make the face less flat.13 Some suggest that this is a trend towards a Western norm of beauty. For instance, that the increasing African preference for thinness and the spread of eating disorders among African college students ‘might indicate a shift to a new African body ideal closely aligned to Western ideals’.14 However, I argue that the emerging ideal is a global mean and demanding of all women of all races. It may be more demanding of some races than others, but no race is good enough without help. White women are just as unable to attain the beauty ideal without intervention as Asian and Black woman are. Large lips are not natural for most white women and require fillers and lifts, and large breasts (often) and large buttocks (nearly always) require intervention for white women. Asian women require intervention in faces (eyes, lips and face shape), and (nearly always) for pert bums and breasts. Black women (stereotypically) have the bums required, but (often) require surgery for large breasts and require skinlightening. And nearly everyone requires work to be (or to stay) thin, firm and young. These are of course stereotypes and caricatures, but nonetheless revealing of the nature of the emerging norm. The homogenizing tendency narrows what is acceptable and enhances the dominance and ubiquity of the ideal, and the trend towards a relatively narrow global norm is evident. To attain this global norm requires technological assistance. A big booty with a small waist, or large breasts over visible ribs require technological help as does maintaining plump lips and smooth and unpigmented skin. As technological fixes are increasingly accessible and normalized, the expectation that more, perhaps most, women will use them also grows. The converging nature of beauty norms into a global norm means that there are fewer competing norms and so fewer and less convincing narratives of resistance.15



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TRANSACTIONAL EXPLOITATION AND THE DEMANDS OF BEAUTY If the beauty ideal is more dominant and demanding, then claims that women are freely choosing to engage are problematic, raising questions about the nature of the requirement and the extent to which conforming can be regarded as exploitation. In this section, I ask whether beauty practices and procedures are exploitative in the sense that the transactional contract is in some sense flawed. Are those who engage in beauty practices and procedures fully informed and consenting? Has choice or consent been undermined in such a way that exploitation can be said to have occurred?16 The features of informed consent differ slightly in different jurisdictions, institutions and practices. However, broadly speaking, there are three main features of consent. First, the consenting person must be given full information and have an accurate understanding of the risks and benefits; second, she must have the capacity to consent (here the focus is on vulnerabilities such as age of maturity or cognitive ability); and third, she must be free from coercion and inducement. So when it comes to cosmetic surgery and, if we extend the notion to mean choosing to engage in all sorts of beauty practices, then a standard transactional view would hold that as long as these conditions are met there is nothing exploitative going on. In the beauty context it should first be noted that extending informed consent to all beauty practices is somewhat artificial. Strictly informed consent is only required when it comes to invasive procedures, such as cosmetic surgery, and non-surgical but invasive procedures which require a medical practitioner to administer them. Very many beauty procedures carried out by third parties do not require the explicit giving (and recording) of informed consent, although safety procedures may be standard good practice.17 Further, many beauty practices do not involve third parties at all, but rather are done at home by ourselves. In such contexts, to focus on consent is a little odd, especially given that many, perhaps most, beauty practices are done routinely, from habit. Standardly routine practices – such as hair removal, hair dye, and the application of lotions and potions – are undertaken with little or no reflection; we just do them.18 Nonetheless, and despite recognizing that engaging in many beauty practices and procedures does not involve a moment of explicit choice, let alone a formal consent process, considering informed consent provides a way of assessing whether there are contractual failures making such practices exploitative. Moreover, for cosmetic surgery and some non-surgical procedures, attaining informed consent is required and it is generally accepted by policy-makers, regulators, and practitioners that consent protects individuals and ensures that people are treated ethically and non-exploitatively.

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The first condition of consent is to be fully informed of the risks and benefits. For the most part this condition is met in that patients presenting for cosmetic surgery are given full information. This is also true for some third-party practices. For example, invasive non-surgical treatments standardly require explicit consent, and hairdressers and beauticians tend to do skin tests to ensure clients do not have allergic reactions to hair dyes and other chemicals, and offer information about the processes and side effects. As already noted, being fully informed is a difficult criterion to apply when it comes to what is done at home by ourselves. Very few of us check chemicals in creams and potions, though very broadly we know some things are risky (like sunbeds and skin-lightening cream). Therefore, in some broad sense, I will assume either that those engaged in beauty practices are fairly well informed or that if they are not it is not because the information has been deliberately withheld or that they have been deliberately misinformed. This is not to deny that there are instances where this does occur and a person is sold a product or procedure without realizing its risks or side effects. Indeed the PIP (Poly Implants Prothese) scandal offers a real-world example where women were misinformed and mislead. In this instance, potentially toxic implants made from silicone intended for industrial, rather than medical, purposes were fraudulently sold.19 However, it is reasonable to assume that such deliberate misinformation and deception is not standard and that when it does happen it is unambiguously exploitative. The more interesting case is where full information of the risks is provided and consent is sought, or when full information is widely available. Assuming that full information is given, the question is whether or not this is enough to understand and assess the risks and benefits. I suggest that in the beauty context risks are systematically underestimated while benefits are overestimated. The power of the ideal, its very dominance and demandingness, makes claims of understanding problematic. The beauty ideal creates such strong expectations that procedures and practices will have transformative results that the risks of procedures and practices are often minimized. Moreover, while there are constant reminders that surgery can be botched or fillers done badly (the fear of trout pouts is ubiquitous in the discourse surrounding such practices), the primary message is that these processes are good to engage in, a way of taking care of yourself, valuing yourself and, assuming you go about it the right way, getting the results you want. The end point is primary (either dramatically in the case of surgery or routinely as you maintain your youthful unwrinkled face by applying potions and lotions) and the focus is not on the process.20 This focus on the end point, and the increasing dominance of the beauty ideal, makes compliance ever more important. There is significant pressure to engage, pressure which makes it hard to effectively weigh the risks and



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benefits. Take one example of cosmetic surgery – that of breast implants. While breast implants are routine surgery in that this is a common operation, it is still surgery, and one from which there are no physical health benefits. Further, even successful breast implants, where there is not excessive scaring, hardening or other complications, must be repeated every 8–15 years (depending on the implant type and its acceptance into the particular woman’s body). But even though it is serious surgery, breast implants are given to women as gifts, or chosen by women as gifts to themselves, and seen as investments to increase their life chances (whether they are in the beauty or glamour industries or not). Weighing the power of the beauty ideal against individual health costs is not easy and social pressures are difficult to factor into individual decision-making. In a health context, the patient weighs the physical risks of the operation or treatment against the physical benefits of improved health. In a beauty context, the patient weighs physical risks against less tangible benefits. The very power of the increasingly dominant ideal explains why the health risks are not regarded in the same way as they would be for an operation in another context. That risks and benefits are weighed differently in the beauty context raises questions regarding the extent to which consent can be relied on to ensure ethical practice. These worries about weighing risks and benefits are exacerbated by worries about other conditions of informed consent, namely those of capacity and of inducement and coercion. Capacity to consent is standardly regarded as compromised if the consenting person is vulnerable in some way. There are some obvious categories of vulnerable groups in a beauty context which parallel vulnerable groups in standard medical contexts, such as the young.21 It would not be controversial to view young girls seeking labiaplasty before becoming sexually active as vulnerable. However, in beauty, who is vulnerable extends far beyond traditional groups and the increasing dominance and demandingness of the beauty ideal is likely to make more women vulnerable and increase the extent of their vulnerability.22 For example, concerns about body image are often tied up with, and triggered by, stress factors and life changes (such as divorce, unemployment or bereavement). Accordingly, in a beauty context those who are vulnerable may not be those standardly considered vulnerable in a medical context. Some would suggest that women who are neither young nor old – between 30 and 50 – are increasingly vulnerable.23 This is a group in which capacity is not commonly questioned in a medical context. Vulnerability, understood as insecurity or low self-esteem, is being created in order to be exploited in the beauty context. We need to be convinced that bingo wings, visible body hair or protruding labia are problems if we are to buy the right products or engage in correct beauty regimes to address them. As such, exploitation would seem to be an obvious paradigm. However, and again, while there are real concerns, consent is not clearly

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undermined. For, while vulnerability is present, it is not the kind of vulnerability that we usually regard as undermining consent. There may be some women who are so vulnerable that surgeons will regard their consent as invalid (for instance, if they have wildly unrealistic expectations). But the type of vulnerability apparent in beauty is a mass vulnerability which we have to be prepared to say that it applies to most, if not all, individuals. Given this, exploitation runs the risk of being a meaningless category in this context. Either all are vulnerable, which means such practices can never be consented to by anyone and all engagement is thereby exploitative, or such vulnerability cannot be enough to fundamentally undermine consent. The final criterion of informed consent I will consider is the absence of coercion and inducement. If it is not possible to reveal body hair without getting funny looks, or without being considered, or thinking of oneself as dirty or abnormal, then non-conformity is costly and women feel they must conform. There are lots of similar examples of ways in which women feel that they must conform; have paler skin, bigger breasts, wider eyes or less wrinkles to look normal, acceptable or better.24 However, being under pressure is not the same as being coerced or induced. Women are not usually coerced or induced into having surgery, into removing body hair or into continual dieting. It is possible that they can be – for instance, the husband who buys breasts for their wives might be inducing or coercing – but this is not the norm. In instances where women are forced by some identifiable other, coercion or inducement may well have taken place, and in such situations consent is obviously compromised. However, on a liberal transactional model, in which standards for inducement or coercion are high, engagement in beauty practices is not obviously coercive as standardly understood. In sum then, while each of the conditions of consent is somewhat problematic when it comes to beauty products and practices, taken together it is not clear that they are problematic enough to undermine consent. Indeed, if we only look at the individual’s consent then likely retorts are: ‘I know the risks and benefits, and I judge it worth it’; ‘yes I’m vulnerable (I feel old, fat, unlovely, etc.), but hey we’re all vulnerable and this isn’t a particularly worrying type of vulnerability’; and ‘I want, want, want this and I want it for me!’ If we look only at each separate individual transaction, we cannot conclude that beauty practices and procedures are exploitative according to a transactional exploitation framework. SYSTEMATIC EXPLOITATION AND THE DEMANDS OF BEAUTY While beauty practices are not obviously transactionally exploitative in that the contract is not wholly undermined by issues of consent or coercion, we



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should consider whether consent is adequate to ensure non-exploitation. This is especially the case as the demands of beauty are likely to continue to increase in the future and become even more demanding as current trends indicate. The emerging beauty ideal is narrower, demands more, begins very young and continues over much of the life span, and is globally dominant. Given this, beauty norms become less about taste and choice and increasingly about patterns, structures and norms. While we should not criticize individual women for their choices – especially choices which make sense within the ideal – this does not mean we should not worry about the increased dominance and demandingness of the beauty ideal. The increasing demands are huge and what is required to meet minimal standards of normal is ever narrower. Higher minimum standards increase what is required of all and so limit and constrain choice. As such, while there is more choice, in that there are more and more practices and products to choose from, there is less choice, in terms of choosing not to value beauty or this type of beauty. Accordingly, exploitation in this context may be less about individual choices and transactions and more about background conditions, patterns and structures of oppression. Structural accounts of exploitation focus not on the contract or on whether individuals have the information they need to make a choice but on whether the conditions in which choices are made render them necessarily exploited. Exploitation occurs when unfair advantage is taken of something like vulnerability or need or powerlessness, or by abusing power in a way which fails to respect something of value (like personhood or equality). In this section, I will consider whether a structural account of exploitation can help account for the ethically worrying features of the increasing demands of an ever narrowing beauty ideal. A structural account focuses on the institutions and social norms and expectations which create the structures within which choices are (inevitably) made. For structural exploitation to occur, the structures need to be such that some individuals or groups are vulnerable because of their position within the structures and cannot but be exploited in their choices. The argument I will focus on is whether choices are so limited when it comes to beauty that they are effectively desperate choices. In a desperate choice model, a person can be exploited by force of circumstance, even if they benefit. The desperate choice argument focuses on the context in which choice happens.25 It denies that more choices equate to more autonomy.26 Some choices matter, some do not, and arguably some are so bad we should take them off the list. In instances when the range of choices is so narrow, the concept of what is freely chosen is deeply problematic. Desperate choices are such wherein the chooser feels they had no choice. In such scenarios, the exploitee chooses the least bad option from a range of undesirable options. For although, strictly speaking, choice remains if there are any options, if none

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are desirable they should not be considered freely chosen (or equivalent to other choices). In addition, there must not be other obvious options to attain the benefit which the desperate choice promises. The example of an Indian widow who choses surrogacy because she is badly in need of money to pay for schooling, and has no other options that would yield sufficient income, is a paradigmatic instance of a desperate choice scenario.27 In scenarios like this, choosing alone is not sufficient to ensure that the chooser is not exploited. In desperate choice scenarios, individuals lack options and are under pressure to pursue one undesirable option or another.28 In the language of exploitation they are needy in some way which renders them, by forces beyond their control, vulnerable to being exploited. That choice is limited in the beauty context has already been determined; for example, that engaging in some routine beauty practices is effectively required to meet minimal standards. Choice is also limited in terms of what can be chosen. Clare Chambers highlights the constraints of patriarchy, arguing that the beauty choices which are made always conform to the norms of patriarchy. Thus she argues that choosing to have breast implants regardless of the desires of actual men is not the same as choosing to have them immune from patriarchal norms. … Practices are cultural: they do not submit to the meanings that an individual wants them to have, either for herself or others. We can see this by considering the extreme oddity of a woman who did want to have breast implants in a society in which large breasts carried no meaning, one in which women were not objectified and sexualised in a way in which large breasts were not considered more attractive by society as a whole. Why on earth would anyone want to have surgery to insert heavy and dangerous alien objects into her body if there were not social meaning to, or social payoff from the practice? A woman who did want to have breast implants in such a society would be like someone who wanted to have cosmetic knee implants.29

I use this example to highlight the limits of choice in the beauty context. However, while there are clearly economic and cultural pressures to conform to the beauty ideal, the desperate choice model does not obviously apply. Neither of the two conditions of desperate choice is met: beauty choices are not the least bad option (or even one undesirable choice among others) and nor are they the only way to achieve the end in question. Certainly, a woman who buys skin-lightening cream before food or medicine might be regarded as being in a desperate choice scenario. She may have been forced by her circumstance to regard skin-lightening as the least bad option to attaining some good or to improve her situation. Likewise, a woman who saves money, forgoing other goods, for an operation she believes is necessary for success (such as the Asian eye lift in South Korea or breast implants in the glamour industry) could also be in a similar situation. It is



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possible to construct desperate choice scenarios, and some women indeed find themselves in such situations. However, they are only desperate choice scenarios if these women regarded the options as undesirable, felt they had no other choice, and/or had no preferable alternatives for achieving the same end. To suggest that all women making choices between beauty goods and other goods are in desperate choice scenarios is implausible. Some may be, but very many will not. A woman might resent the pressure to conform and regard the use of skin-lightening cream as a bad cultural practice, but one she has to engage with in order to attain the goods which beauty brings (goods of relationships, employment, and so on).30 But, the demands of beauty, while significant, are often not perceived as demands at all. Some women certainly report feeling significant pressure to conform and wish they didn’t have to.31 But, equally, and perhaps more commonly, women embrace the norm and desire to conform to the demands of beauty. A woman may wish to conform even if there were other ways to attain the goods which she believes will follow, and embrace engagement in beauty practices with enthusiasm. Given this, the desperate choice model seems particularly unsuited to assessing beauty choices. Beauty practices are not usually imposed by identifiable others, and women do not feel they have no choice, in the way that desperate choice is normally construed. Rather, they want to buy the product, engage in the practice, or undergo the procedure. Often women save money and forgo other goods because they really want and desire the goods they believe will come from beauty, and for the sake of beauty itself. If we accept, as argued in the last section, that women are not misinformed or intentionally deceived, then this is not an exploitative choice in a standard way. This does not mean that the background conditions are not such as to constrain choice or to make choices desirable which would not be attractive in a different context, but they are not unambiguously exploitative.32 MORALLY CONCERNING, BUT NOT CLEARLY EXPLOITATIVE The increasing demands of beauty have features which look exploitative on both the transactional and the systemic models of exploitation. However, neither account is ultimately satisfactory in accounting for the demands of beauty. In addition to the reasons for this already discussed, in this final section I highlight a further concern: that the exploiters and exploited cannot be clearly differentiated in the beauty context. Accordingly, similar to the discussion of vulnerability, to claim exploitation risks rendering the concept meaningless. The demands of beauty are increasing, and choice is accordingly reduced as the pressure to comply increases, but if this is true across the board then it is not exploitation of one group or person by another group

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or person, but increasing pressure on all by all.33 While this is morally troubling, it makes claims of exploitation of one person or group by another less convincing. In traditional arguments about beauty practices being exploitative, it is argued that men are the direct beneficiaries of beauty ideals. Shelia Jeffreys argues along these lines: Beauty practices can reasonably be understood to be for the benefit of men. Though women in the west sometimes say that they choose to engage in beauty practices for their own sake, or for other women and not for men, men benefit in several ways. They gain the advantage of having their superior sex class status marked out, and the satisfaction of being reminded of their superior status every time they look at a woman. They also gain the advantage of being sexually stimulated by ‘beautiful’ women. These advantages can be summed up in the understanding that women are expected to both ‘complement’ and ‘compliment’ men.34

This clear division between the exploiter and the exploitee is harder to maintain given the dramatic increase in the demands being made of men, and men are increasingly suffering from body insecurity and low body esteem.35 While the demands of male beauty are minimal when compared to female beauty, they are increasing, and particularly for younger men. Men too are under pressure to conform to body ideals which are not possible without significant work. Among certain groups of men there is pressure to bulk up the chest, shoulders and arms, and increasingly visible and well defined muscle is required for men to attain what at least some would consider to be minimum standards of beauty (via body work, steroids, or surgical intervention). Even hairlessness is becoming more common among men.36 So while there are still huge gender differences between what is required of women and men (and even if men did feel beauty demands to a similar extent these would likely manifest with different meanings), the inequality here too might be lessening.37 It is no longer the case, as Bartky put it so memorably, that ‘soap and water, a shave and routine attention to hygiene may be enough for him; for her they are not’.38 Exploitation arguments have less power in instances where there is less inequality and in instances where there are no clear and distinct beneficiaries. In conclusion, while exploitation arguments help to clarify certain morally troubling features of the beauty norm, they do not provide a satisfactory analysis thereof. Exploitation accounts fail to account for what is morally troubling about three-year-olds attaching moral qualities to silhouettes of different sizes or the rise in forty-year-olds feeling fat and failing. Even if it were the case that the demands of beauty fell equally on all, there would still be troubling features about the rising demands of beauty, especially if current trends continue and the demands of beauty continue to rise into the future. Accordingly, if in the beauty context all are potentially exploited and



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the exploiter and beneficiary can be the same, the concept of exploitation – however revised – is seemingly misplaced. Thus, while some of the elements of what is wrong in beauty align with the wrongs traditional exploitation critiques aim to reveal, such as taking advantage of vulnerability, exploitation does not significantly help us to understand and address these wrongs. NOTES 1. In 2014, 11,505 buttock augmentation with fat grafting operations were performed in the United States and 1863 buttock implants; so rare were these in 2000 there are no comparator statistics. In 2014, there were 3505 buttock lifts compared to 1356 in 2000, a rise of 158%. ‘2014 Plastic Surgery Statistics Report’, American Society of Plastic Surgeons, accessed 20 July, 2016, http://www.plasticsurgery.org/ Documents/news-resources/statistics/2014-statistics/plastic-surgery-statsitics-fullreport.pdf 2. ‘Shoes and Hair-dos: A Quick Reflection’ Beauty Demands Blog, accessed 20 July, 2016, http://beautydemands.blogspot.co.uk/2016/07/shoes-and-hair-dos-quickreflection.html 3. The first key argument I make in the forthcoming monograph, Perfect Me!, is that the dominant beauty ideal is functioning as an ethical ideal. Increasing demands of beauty are more troubling as beauty values are increasingly ethical values, and thus values against which individuals judge their own and others’ worth, and according to which life goals and daily habits are structured. 4. Jennifer Harringer, ‘Age Differences in Body Size Stereotyping in a Sample of Preschool Girls’, Eating Disorders 23, no. 2 (2015): 177–90. 5. Cristin D. Runfola et al., ‘Characteristics of Women with Body Size Satisfaction at Midlife: Results of the Gender and Body Image Study’, Journal of Women and Aging 25, no. 4 (2013): 297. 6. The claim is not that there have not been more demanding beauty ideals – foot-binding or corset-wearing are more demanding – but there have not been such demanding ideals which apply to all women across cultures. 7. Some argue that part of the hairless trend (and perhaps labiaplasty) is part of an aesthetic which emphasizes not only youth but extreme youth as a way of infantilizing women. G. Zwang ‘Vulvar Reconstruction. The Exploitation of an Ignorance’. Sexologies 20, no. 2 (2011): 81–87. 8. Body hair removal has no proven health benefits, and risks increase when hair is removed from more sensitive body parts, e.g. ingrown hairs that can lead to abscess and infection. Mark G. Kirchho, and Sheila Au. ‘Brazilian Waxing and Human Papillomavirus: A Case of Acquired Epidermodysplasia Verruciformis’. Canadian Medical Association Journal 187, no. 2 (2015): 126–28. 9. Disgust is a concept which has a long history of signalling the transition of borders and often related to bodies and particular women’s bodies. 10. Vinet Coetzee et al., ‘African Perceptions of Female Attractiveness’. PloS one 7, no. 10 (2012): e48116.

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11. ‘Mercury in Skin Lightening Products’, WHO, accessed 20 July, 2016, http:// www.who.int/ipcs/assessment/public_health/mercury_flyer.pdf 12. Statistics for plastic surgery are notoriously difficult to authenticate especially globally and thus should only ever be treated minimally. 13. Patricia Max, ‘About Face: Why is South Korea the World’s Plastic-surgery Capital?’ The New Yorker, 23 March, 2015. 14. Coetzee et al., ‘African Perceptions of Female Attractiveness’, e48116. 15. Some argue that the claim that there is a single global norm emerging is challenged by subcultures, for instance, by the body-modification movements or current moves to make plus-size models more visible. However, while these challenge some aspects of the norm, I am less sure that they amount to full alternative norms, rather than being derivative of the existing norm. 16. Elsewhere I have addressed choice and consent arguments, to show, against much of the contemporary assumptions, particularly in bioethics, that choice is sufficient to ensure ethical practice. Heather Widdows, The Connected Self: The Ethics and Governance of the Genetic Individual (Cambridge: Cambridge University Press, 2013) and Heather Widdows ‘Rejecting the Choice Paradigm: Rethinking the Ethical Framework in Prostitution and Egg Sale Debates’, in Gender, Agency and Coercion ed. Anne Phillips, Sumi Madhok and Kalpana Wilson (London: Palgrave, 2013), 157–80. 17. For example, skin tests for hair dye, or details of the likely pain which will attach to a procedure such as hot-waxing. 18. Routine and maintenance are terms worth interrogating. Routine is often demanding and maintenance suggests necessity for health or bodily functioning. 19. Melanie Latham ‘“If it Ain’t Broke, Don’t Fix It?”: Scandals, “Risk”, and Cosmetic Surgery in the UK and France’. Medical Law Review 22, no. 3 (2014): 384–408. 20. Arguably this is made more likely due to the dominance of the transformation narrative, for instance, as enforced by before and after photos. 21. That groups should not be regarded as vulnerable is argued strongly in a recent Nuffield Council on Bioethics report. ‘Children and Clinical Research: Ethical Issues’, Nuffield Council on Bioethics, accessed 20 July, 2016. http://www.plasticsurgery.org/Documents/news-resources/statistics/2014-statistics/plastic-surgery-statsitics-full-report.pdf 22. In Perfect Me! I argue that vulnerability expands not only because the ideal becomes more dominant, but also as it becomes increasingly an ethical ideal and value framework, making non-conformity a moral failure. 23. As suggested by the rise of women in their 30s and 40s developing eating disorders, Cynthia Bulik, Midlife Eating Disorders (New York: Walker and Company, 2013). 24. In Perfect Me! I spend time considering motivations for engagement in beauty practices and procedures and in particular whether ‘to be normal’ is, ethically speaking, a different motivation from improvement or seeking to be perfect. I argue that these motivations are more similar than they first appear and serve similar purposes in offering an acceptable reason for accessing surgery or having it paid for by insurance or health system. 25. Widdows ‘Rejecting the Choice Paradigm’, 157–80. 26. The view that more choice equates with more autonomy is a fairly standard liberal view. Thomas Hurka puts this view well when he argues that removing even the worst



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options, because they are intrinsically bad, reduces autonomy. He states that to remove bad choices is ‘limited coercion – forbidding the worst rather than requiring the best – still violates classical liberalism, and still (somewhat) reduces autonomy’. Thomas Hurka ‘Why Value Autonomy?’ Social Theory and Practice 13, no. 3 (1987): 363. For discussion of this and similar claims, see also Widdows ‘Rejecting the Choice Paradigm’, 157–80. 27. Monique Deveaux, draft paper. It is important to note that Deveaux does not use the terminology of desperate choice in presenting this example. 28. Another alternative is to use Iris Marion Young’s account of structural justice which I applied to beauty at a recent conference. Heather Widdows, ‘Structural Injustice and the Global Demands of Beauty’ (paper presented at Conference on ‘Global Justice and Global Health Ethics. Exploring the Influence of Iris Marion Young’, Munich, July, 2016). 29. Clare Chambers, Sex, Culture and Justice (Pennsylvania: Pennsylvania State University Press, 2008), 40. 30. In Perfect Me! I argue that the goods of the beauty ideal do not necessarily follow from compliance with the beauty ideal. Although there is some empirical evidence which suggests that those who are attractive are more successful, it is not as much as is assumed. However, whether or not the goods are delivered matters less than the striving for those goods. 31. Some feminist interviewees reported that they would shave their legs if going to a public event (like a wedding), not because they wanted to (and in fact resented it), but just because it was easier than to not comply with the norm. Joyce Heckman, ‘This is What a Feminist Looks Like: Analysis of Feminist Appearance Negotiations’ (paper presented at AHRC Beauty Demands Network workshop, University of Warwick, March, 2015). 32. In Perfect Me! I consider the somewhat parallel arguments of false consciousness and adaptive preference and argue that beauty choices are neither of these. 33. It does not mean that there are no other accounts which may be possible. For instance, arguments from structural injustice could be useful for situations where no individuals are acting to exploit. However, even in such accounts the relative position is important and significant work is done by deprivation, making such accounts difficult to fit with beauty. 34. Sheila Jeffreys, Beauty and Misogyny: Harmful Cultural Practices in the West (London: Routledge, 2005), 32. 35. The UK national eating disorder statistics suggests between a quarter and a third of those with eating disorders may be young men. ‘Research on Males with Eating Disorders’ National Eating Disorder Association (NEDA) accessed 20 July 2016, https://www.nationaleatingdisorders.org/statistics-males-and-eating-disorders. 36. The ‘sack, back and crack’ is one of the fastest growing treatments. See ‘30–35% Real Men get Waxed’, The Economist 23 July, 2003. Accessed 20 July 2016, http://www.economist.com/node/1900122 37. The claim is not that men are under the same pressure as women. They are not, and there is nothing approaching a global norm for men. But, men are under more pressure than in the past. 38. Sandra Lee Bartky, Femininity and Domination: Studies in the Phenomenology of Oppression (New York: Routledge, 1990), 71.

Chapter 10

Kidney Sales How Far Do Sellers Exercise Reasoned Freedom? Cases from Bangladesh M. Shaiful Islam and Des Gasper

The advance of biotechnology facilitates extraction of ‘fresh’ organs like kidneys from living people, and their transplantation to sick people. The transplant trade has expanded the options for life-saving treatment but it violates many traditional understandings regarding appropriate market exchange. The kidney trade is the largest example, despite being the subject of heated public debate and having no legal basis across most of the world. It has been both challenged1 and defended2 on ethical, medical, social, legal, and economic grounds. While the controversy continues, the gap between policies and illegal practices widens. The trade is expanding in Asia as well as in wartorn MENA (Middle East and North Africa) areas.3 Kidney sale is perhaps still under-theorized in some respects. In all discussions, the sellers should sit at the centre, for only the poor, destitute or socially disadvantaged sell, whereas only the well-off and socially advantaged buy. Discussions have concentrated on (1) goals of the sellers, (2) varying benefits and harms they can experience, and (3) illegal informal arrangements that facilitate the decision to sell an organ. But there is confusing evidence on consequences, and limited connection between those discussions and the normative assessment of how far are selling decisions the desperation behaviour of people who possess too little real choice. This chapter explores kidney sellers’ perspectives and the process of decision-making in some villages of Bangladesh. We examine the organ sellers’ degree of freedom in relation to what they value to achieve, identify its limits, and ask how those lead them to the choice of organ selling. Selling decisions are made in a context where some people lack adequate material and social resources to secure a livelihood, face a never-ending quest for means to manage and transform their lives, and are enmeshed in constraining relationships within social and economic power systems. These conditions have contributed to 195

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the institutionalization of kidney selling, a form of bodily self-exploitation, as a now routine practice among the poorest groups in some areas. Consistent with most other findings, we find in these locations that while kidney sale is based on hope of resources to confront the precariousness of livelihoods, it is frequently experienced as a nightmare of life-long disaster that consequently remains often mentally buried and/or untold. We begin by situating our study within the existing debate and outlining our methodology. We then examine concepts of exploitation, human freedom and capability gaps, in relation to sellers’ decisions. Subsequently, the heart of the chapter presents and analyses the interviews. Finally, we discuss possible implications for the ethical appraisal of kidney sales. FRAMING THE DEBATE – THE ‘WHY’ AND ‘HOW’ OF SELLING Why people sell their body parts is a fundamental question in the controversy.4 The goals the would-be sellers seek can influence assessment of whether selling is harmful or beneficial. A related question is: What living standard did they enjoy, what precariousness of livelihood did they face, before deciding to sell an organ? These aspects may enter arguments on either side of the controversy. The main motive found has been for financial gain in situations of poverty and/or debt peonage (including to microcredit organizations) and of obligations to feed and support family members.5 In contrast, the published research says less on process aspects, how the decision to sell is formed.6 Work here seems hitherto mostly limited to identifying illegal and coercive informal institutions and the ways they influence decision processes of poor would-be organ sellers. For example, in Bangladesh, an informal network of affluent aspirant recipients and of hospitals, doctors, medical companies, media and brokers operates to provide market signals to possible sellers.7 Similarly, in the Philippines, a network of hospital owners, doctors, civil servants in various government agencies, and beneficiaries of transplant tourism operates illegally.8 ‘Traders’ provide inadequate or false motivating information about the impacts of selling on the would-be sellers’ health and finances. There are also documented cases of some organized coerced transplants.9 However, debate rages between proponents and opponents of the trade regarding whether the deviant practices are due only to a remediable absence of regulation,10 or are instead the predictable consequences of highly unequal and exploitative social structures.11 The literature thus focuses on two sets of factors to explain sales. One is the sellers’ anticipation of financial gains, in circumstances of poverty and aspiration. The second concerns institutional arrangements which encourage



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and facilitate people to sell, and their operation in relation to individuals who live in severe poverty. The actual gains (or losses) and actual details of the transaction process are referred to in judgements on whether or not there is exploitation, and of what type and degree, for example, if (1) the seller is benefited, but gains much less than the other parties involved and much less than he/she expected and contracted for, or (2) the seller is not benefited or is even harmed. We suggest though that for considering the why and how of selling decisions, some additional informational categories are needed. Analysis of consequences for sellers remains inconclusive in its own terms, given considerable empirical evidence on both sides of the argument regarding whether goals are fulfilled or not fulfilled by selling organs. Furthermore, Cohen12 reflects on why even though the ambitions of most of the sellers in some studies (to buy a market stall, to provide a dowry, etc.) went unfulfilled, this fails to translate into any prohibition of the sale. Could not, for example, reliable information be spread out among the would-be sellers, so that inadequate or false ‘information’ would not survive long? Cohen argues that ‘we do not have a good sense of why [many] sellers seem to be making this mistake in their estimation of how kidney sale will change their welfare’.13 We must consider how informal institutions that lure people to sell emerge and endure, in the breeding spaces set by structural inequality in particular contexts. While the informal institutional arrangements that emerge in an unregulated space might, in principle, be subject to regulatory reform, in a space of high structural inequality they persist permanently. We refer here to strongly unequal distribution of land, savings, human capital and social capital; such that some groups lack security of employment and income, cannot save to invest, cannot access cheap loans or government schemes, and cannot afford to keep themselves or their children long in school or in training. However, institutional arrangements alone, that supply inadequate or false motivating information to the rather desperate would-be sellers, do not necessarily entrap them to sell; the sellers do not merely passively consume proffered ‘information’. Similarly, whereas structural inequality is widespread, indeed typical, in Bangladesh, kidney sales and associated illegal arrangements are prevalent only in a few adjacent villages or among a relatively few people in certain classes. How the sellers are valued in the exchange, and how this influences their decision formation, also seems mostly absent in existing consequentialist and institutionalist categories and discussions.14 Yet ‘certain kinds of exchanges not only distribute things, but also distribute power and shape the kind of people we become’.15 An exchange becomes ‘noxious’ and ethically flawed if it fails to respect the equal value of persons engaged in it. In some exchanges, one’s own preferences, goals and ends may be subordinated to another person’s wealth and power and established higher status. Fear that this happens

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in the organ trade arises since, as we noted, only poor and socially disadvantaged people sell organs, and only the well-off and socially advantaged buy. So, the study of the organ trade requires additional categories and types of information regarding why and in which ways people decide to sell their body parts. The needed categories include the effective degrees of knowledge and freedom that potential sellers have, the value assigned to persons engaged in the exchange, and the unintended as well as intended consequences of such decisions in particular circumstances. THE STUDY: WHAT SORT OF FREEDOM DO SELLERS HAVE IN THEIR DECISION FORMATION? Against this background, we investigate how decisions to sell a part of one’s body are formed. As both a descriptive category and a priority value, we use the concept of human freedom offered in Sen’s capability approach – whether people are actually able to do and to be what they (have reason to) value to do and to be. We attempt to describe and explain the realities the would-be organ sellers face in achieving what they value to achieve, that lead them to the choice of organ selling: (1) What are the capability gaps they face before selling their kidneys? (2) In which ways, why and to what extent are the capability gaps connected to the decision to sell one’s living organ? We thus seek to go beyond the use of notional examples such as sometimes constructed by philosophers, and also beyond the examination of real cases without attention to the full context, including interpersonal relations and institutional and political landscape.16 The study was conducted by the first author in Kalai, a rural sub-district in northwestern Bangladesh, where he worked in the local government during 2013–2015. The area is heavily agricultural and a surplus food-producing zone. According to various newspaper reports and popular perception in the country, it is the only concentrated kidney sellers’ zone in Bangladesh outside Dhaka. According to the local administration, and corroborated by this investigation, the number of kidney sellers has already exceeded 6–7% of the population in four adjacent villages, surpassing the estimates given by the local and international media. As of 2015, many more people were in the queue to sell organs. The study attempted to find respondents among, first, would-be organ sellers, but experienced difficulty to do so, though a few were interviewed. People tended to hide their intentions and were unsure about whether they would really sell an organ. Substantial differences were found between declared intentions and actual occurrence of selling organs. The study also interviewed previous organ sellers who were eager to share information. They



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showed comprehensive awareness of what were their expectations from the sale, their actual gains, sufferings and trade-offs, and a willingness to evaluate their experience, including the difference between their pre-sale and post-sale condition, and the causes thereof. Here we concentrate on the cases of seven actual organ sellers, though against the background of other interviews and conversations, and use these cases to view the continuum from pre-sale to decision-making through to post-sale conditions.17 Respondents were selected through snowball sampling, while seeking a representation of different gender, age, and occupational groups. A very difficult task though was to identify a female kidney seller willing to be interviewed. Even though many names were mentioned, including two women in one family who had sold kidneys, they were unwilling even to be introduced. One woman seller, here called Khaleda, was willing to talk. Her case does not allow generalizations about women sellers, but gives an indication of women’s capability gaps and of the risks of being driven to become an organ seller. Similarly, while our study as a whole is small, it allows identification of some important aspects that ethical theorizing and policy debate must attend to. The main interviews were done by a well-briefed local research assistant,18 and were preceded and followed up in other conversations involving the first author. No blunt questions were asked about why people sell their kidneys, or what set of beings and doings the would-be sellers value most. Rather the discussions with organ sellers were conducted as a mix of semi-structured and open-ended interviews, to put them at ease, to map out their life context and capabilities, and then to gradually explore their decision-making story. We use pseudonyms for the respondents. Attempts were also made to triangulate data: where deemed necessary, local school teachers, elected representatives, and representatives of different public agencies were interviewed in a semi-structured manner to verify the data given by the sellers. As further indication of care in use of the data collected, we mention at the outset one case that has a special status. ‘Aftabul’, his elder brother, sister-in-law, father, and his former wife each sold a kidney. The sales had not revived the family fortunes. Aftabul was ready to talk only if paid. He had become drug-addicted, and earned money by interviews with journalists, national and international, since the family had become a media target. However, his reports seemed to us unreliable and biased towards what he considered journalists wanted, so they are not used further in what follows. THE ANALYSIS OF EXPLOITATION When can we say a kidney seller becomes exploited? Interestingly, exploitation literature, while focused on interaction between individuals that results in

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exploitation of one party, seems more occupied with the exploiters’ side. For Wertheimer, for instance, (1) ‘A exploits B when A takes unfair advantage of B’19; (2) ‘A engages in harmful exploitation when A gains by an action or transaction that is harmful to B’; and also (3) ‘A engages in mutually advantageous exploitation when … A gains unfairly or excessively by an action or transaction that is beneficial to B’.20 Or similarly in other authors, ‘if you take advantage of a person and harm that person, show lack of respect for that person, or treat that person unjustly, then you have exploited that person’21; and, exploitation is ‘wrongful behaviour’ of a person that violates ‘the moral norm’ of ‘protecting the vulnerable’.22 In these treatments, the focus seems more on the exploiters, who could take unfair advantage, inflict harm, disrespect, be unjust, and not protect. Analysis of exploitees and their actual and attainable beings and doings appears secondary. Although current explanations are helpful, they often fail to emphasize structural analysis or the agency of poor, marginalized people and possible exploitees.23 Exploitation cannot be reduced to only ‘a function of the way in which A treats B or the effects of A’s treatment of B on B’.24 Our argument is that exploitation can be understood better if we consider also the agency of possible exploitees, placing it in context, and exploring how norms, rules and structures influence agents’ actual beings and doings and their attainable alternative beings and doings. We do not reject the evaluative question whether A’s treatment towards B happens in a harmful, degrading or disrespectful manner. But we suggest that great emphasis should be given to: (i) whether B lacks command of necessary basic beings and doings; and (ii) whether B’s decision to sell something like a kidney or ova comes from such a lack. The transaction itself could occur in a way disrespectful or degrading towards B; however, that B will be disrespected or disgraced by A is not a necessary condition to treat a phenomenon as exploitation. So, we focus here not on the actions of possible exploiters, but on the degree of agency of exploitees and their capacity/incapacity to negotiate within existing structures. In doing so, we will draw from Sen, to look not only at potential exploitees’ actual beings and doings but also at their attainable alternative beings and doings; and also from Dasgupta, for a concept of bodily self-exploitation. This reflects a structural approach to understanding exploitation, combined with an emphasis on sellers’ agency and what has moulded and constrained it. Bodily self-exploitation arises when a person has insufficient resources to maintain his/her household’s basic beings and doings, and resorts and/or is forced to use his/her body for acquisition of goods, through excess bodily labour and/or the sale/rent of their own body parts. It arises when (s)he is incapable of transforming the surrounding socioeconomic structures into an enabling form, indeed where the struggle to conquer constraints can even reinforce their unbearable pattern. So his/her sets



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of attainable beings and doings become thin, precarious, and perhaps continuously downgraded, leading to a decision that his/her body is the only asset through which to survive or to transform this. To be clear, the resulting selfexploitation is typically the result and expression of exploitation by others. USING SEN’S CAPABILITY APPROACH TO CONSIDER CAPABILITY GAPS AND ORGAN SALE DECISIONS Sen’s approach focuses on individuals’ capabilities: their freedom to achieve what they have reason to value achieving. The approach sees capabilities and their formation as conditional on multidimensional relationships of structure and agency, and it attends systematically to how social circumstances influence the lives of the individuals. Using this approach and other relevant literatures, we sketch a conceptual framework focused on capability gaps and their relation to acts of selling one’s kidney. Sen’s concept of human freedom relies on two other concepts: functionings and capabilities. i. Valuable functionings: Functionings refers to multiple diverse aspects of life that people value (or have reason to value) to do or to be. Functionings can be material, such as being nourished, or immaterial, such as participating in political decisions. They can be self-regarding, valued in terms of benefit to oneself, or other-regarding, aimed to benefit others. Valued functionings, persons’ reasoned choices, can reasonably vary between persons. ii. Capability refers to a person’s or group’s freedom to achieve valuable functionings. ‘It represents the various combinations of functionings (beings and doings) that the person can achieve … reflecting the person’s freedom to lead one type of life or another … [and] to choose from possible livings’.25 Sen uses the term agency in regard to ‘someone who acts and brings about change, and whose achievements can be judged in terms of her own values and objectives’.26 We will use the term with the following attributes,27 to examine the process and consequences of kidney sales decisions: a. Self-determination. Agency in Sen’s sense requires that an individual personally decides to perform the act in question: self-determination of behaviour. b. Reason-orientation and deliberation. The approach presents ‘persons as reasoning agents with the right to make choices’.28 For Sen, freedom exists

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‘when a person acts on purpose and for a purpose, goal, or reason’. Sen maintains that agency involves ‘not merely freedom and power to act, but also freedom and power to question and reassess the prevailing norms and values’.29 An agent’s decision should not be based on whim or impulse, but on reasons and goals. c. Action and its impact. Agency requires action. Someone may get what he or she intends, for instance, the elimination of famine, without any deliberate action; but then he or she is not an agent in this case. An agent’s action, moreover, must bring some impact. The more it makes a difference in the world, the more fully does the agent exercise agency. For Sen thus, agency is embodied in capability. Over time, Sen has elaborated a ‘two-way relation between (1) social arrangements [such as economic, social and political opportunities] to expand individual freedoms and (2) the use of individual freedoms … to make the social arrangements more appropriate and effective’.30 Human agency, and lack thereof, can help explain capabilities and their gaps.31 Agency is conditioned rather than fully determined by social structure. Agency in turn can help to reproduce or transform social structure. An individual’s capability gaps can be understood as arising where an agent does not (a) identify a set of valuable functionings by using wellreasoned valuation, and/or (b) possess achievability of functionings from the chosen sets, and where the agency-structure relationships seriously constrain exercise of human agency. We use this conception of capability gaps to examine the decision process of a would-be organ seller, as shown in the following diagram. A person may suffer deficiencies while exercising agency and in navigating social structure and the agency-structure interrelations. The left-hand side of the diagram shows the inputs, meaning any resources of material or non-material type, used to create one’s capability set. The diagram places these inputs inside the relationship matrix of agency-structure,

Figure 10.1  Capability set: valued functionings and their achievability.



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unlike in the widely used but unidirectional Robeyns diagram32 where they are outside the matrix. Agency creates social resources, like social capital, and more material resources, by bringing change into existing structures or by other purposeful action; and structures facilitate or impede agency. The priority focus in the approach is not resource inputs but the creation of capabilities, namely, achievable valued-functioning sets. As suggested in the middle of the diagram, we identify the capability gaps by considering how far the would-be sellers are able to choose valued functionings which are prioritized, coercion-free and well-reasoned, and able to undertake actions that achieve those valued functionings. The right-hand side of the diagram indicates the linkage between sets of capabilities, agency, structure, and exercise of agency or actual actions. It leads to the questions: In what ways could the sets of valued functionings, and the conditions for their practical achievability, lead prospective sellers to the decision to sell their own body parts? How far and in what ways are their valuations, reasoning, agency and its exercise socially moulded? INADEQUATE INPUT RESOURCES VIS-À-VIS VALUED FUNCTIONINGS The functionings that respondents valued most covered a wide variety of doings and beings that were perceived as achievable by selling one’s own kidney, ranging from repaying debt, through income-generating investment, to securing relational ties. Their priority lists are influenced by their capacity to exercise reasoned judgement to identify target functionings, by the socioeconomic structures and interrelationships, and by social values and beliefs and how these are affected by social equality/inequality. Of these valued functionings, repaying debt to microcredit NGOs and informal moneylenders was very prominent. As Khaleda, a 34-year-old part-time housemaid and part-time tailor, put it: ‘I was indebted to [several microcredit NGOs and informal moneylenders] for about 70,000 taka, and I wanted to get rid of the loan burden’. Karim, another kidney seller, is a father of three school-going children, in his late 30s. He has worked as a seasonal agricultural labourer and part-time van driver for the last two decades. Being indebted for around 80,000 taka to six microcredit NGOs and many informal moneylenders, he decided to sell a kidney: ‘I was afraid for the future of my kids and wife. I didn’t want to let them fall into the cycle of loans and to be indebted for my loans’. He continued, ‘The peace in my family was ruined due to the pressure of NGOs. They threatened us always with rough talk and they could seize all the belongings in my family. Even it happened that I ran away from my house, keeping me and my family hungry for around

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two days, due to fear of Grameen Bank’. The agents of microcredit NGOs can be no less harsh to the poor in Kalai than are their Shylock-like informal moneylender counterparts. Together they inject a sense of urgent priority to repaying debt, and unitedly drive the borrowers to quest for anything yet to be capitalized in order to repay. Investing for future income generation is another valued ‘doing’ that motivates would-be sellers. Milon, a 37-year-old rickshaw puller, sold his kidney three years back, aiming to invest in a CNG vehicle (a three-wheeler driven by compressed natural gas) for greater and more secure earning. This is a popular route to modest earning in Bangladesh. According to Milon, ‘The [kidney] receiver asked me what I can do for you. I asked for a CNG vehicle … With a CNG vehicle, I can pay for my family’s feeding and expenses’. Another seller, Jahangir, similarly wanted to sell a kidney to buy such a vehicle: ‘I was driving CNG on rent. If I have one, this will ensure the livelihood of my family’. A third highly valued set of functionings, associated with repayment of debts and intended income generation, thus was financial security and guaranteed welfare for family members. Khaleda announced, ‘I don’t have even a single bit of remorse ever for selling my organ. Do you know why? [silently weeping]. Because I love my family, my husband, and my two kids’. For Mohammad Titu, 33, a farmer and occasional rickshaw puller, who sold his kidney to a rich businessman, his most valued target ‘be-ing’ was a permanent solution of his family’s day-to-day insecurity of livelihood. He put it bluntly: ‘This is not a one-stop trade. And I don’t want one either’. He explained, ‘I took monetary help several times. He [the businessman] sends me money regularly by bikash [electronic transfer] … and I spend the money for feeding and regular chores’. The fourth important valued functioning that the study identified was an extension of the third: having a secure relational tie with rich and powerful people, a tie that gives a possibility of financial insurance. For Titu, ‘I donated, did not sell. I donated to my friend, who though he is rich has built a generous friendship with me for around seven years’. He continued: ‘[Even before the sale] I sit with billionaire, eat with him, talk with him, he did so many things for my family. No one of my family and kin (some of whom have the ability, though most have no ability) do anything for me ever’. He said further: ‘However, even if I have money, even more than the receiver, I would give him kidneys, because he is such a nice person’. He fumbled when faced with the harder question whether he would still have donated a kidney if the potential receiver were poor. Another important functioning is securing dignified status for women in the household, as seen in Khaleda’s case. ‘I was indebted hugely and my husband knew it. But when public and NGOs hugely pressurized me to repay



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the debt, my husband declared that he did not know anything about the loan. He distanced himself from this and even was thinking to divorce me. I then became determined to repay the loan by myself and would come back to this family (songsar) with dignity’. The last set of valued functionings that were emphasized concerned building a home and laying the basis for children’s success by putting them through school. As expressed by Khaleda, ‘If you don’t have a house how you can think of a minimum good life? I struggled hard to send my two kids to school. But when they went to higher classes, I struggled even harder to continue their educational expenses’. She continued: ‘My father-in-law had two decimels of land.33 The house had three rooms for four families. My father-in-law, we, my family, sister-in-law and brother-in-law were living together there before selling kidneys. We cannot rear up a goat or some hens. My husband is of good mind. He suggested me not to sell organ. I told him that your father did not do anything for you. But you can’t do the same with your children. … A good house and good education for them’. She went on: ‘We could not afford the marriage of my daughter if we were in our earlier financial situation. Here a marriage of a daughter costs around at least two lakhs (200,000 taka). So my daughter is committed not to get married, and adamant to continue education. I am also thinking to spend the money for my daughter’s education instead of spending the money for marriage’. For achieving their goals, the material and immaterial resource stocks of prospective sellers are far behind what is required. They all belong to the lower rungs of the society in terms of human capacity, profession, and material wealth. Milon and Khaleda had no educational qualification or formal skills, and possessed only unskilled physical labour to sell. Only Jahangir among our cases had completed secondary education, or had a driving license. They all worked in low-grade informal professions: rickshaw pulling, driving a CNG vehicle, working as a housemaid. Moreover, they are far behind in terms of land ownership. Milon’s father did not have any land either to cultivate or to extend the house for the families of Milon and his brother. Only his mother has 33 decimels of agricultural land, which is equally distributed between Milon and his brother, and this is next to nothing to feed a family for the whole year. The same is the case for Jahangir and Khaleda. We saw that Khaleda had lived in her father-in-law’s house with two further families, a tiny muddy three-room house built on only two decimels of land. So, all our cases of sellers lacked strong agency and an agency-enabling structure. All had a widening gap between their available material and nonmaterial input resources and their valued functionings, a gap so large as almost to suggest the irrelevance of thinking in terms of those functionings and to instead adapt their preferences, however modest, drastically downwards. The questions arise: How did their notions of valued functionings

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emerge and persist?; and why and how did they come to the idea, and then the decision, of selling an organ? The following sections explore kidney sellers’ valuation of functionings and insufficient possession of the means to achieve them. Exploring the structural inequalities in rural Kalai and especially the tales of the sellers revealed four key areas: (a) informality of work, (b) relational social capital, (c) the rural finance system, and (d) the growing social acceptance of kidney sale. The agency-structure relationships constrain the would-be organ sellers in valuing appropriate sets of functionings and in their ability to achieve, and force them to try to mobilize resources. INFORMALITY AND UNCERTAINTY OF LIVELIHOOD One important structural feature is the informality and uncertainty of livelihoods. The respondents were (and are) mired in inadequate earning, at high risk of being unemployed, and largely without skills transferable to serious income-generating or human capacity-developing ventures. Milon, for example, said, ‘I tried my luck in all available ways, particularly considering the future of my daughters; I was rickshaw puller in three cities, Dhaka, Moulvibazar and Sylhet, also tried some part-time businesses of selling spices and clothes. Yet still I could not afford to give them adequate food and think of their education’. He continued: ‘I even started working as domestic worker in others’ houses. But no change, the education of my two daughters has been stopped several times. I also could not accumulate some money from my earnings to buy a van so that my earning could be increased’. Informal employment like rickshaw pulling or domestic work, and micro-business like street hawking, is not adequate even to ensure decent food, let alone for education or training or income-increasing investments like purchase of a van. Respondents had tried their luck by shifting occupation frequently. Besides selling spices and clothes in the street, and pulling rickshaws in several districts across Bangladesh, Milon tried farming on another’s land. Jahangir, once a van driver in Kalai transporting people and agricultural products, became a CNG driver. Khaleda tried tailoring for villagers and worked as a maid in Dhaka, but shifting occupation did not lead to clearly increased earning levels. Moreover, they could at any moment become unemployed. Milon, while a street hawker of spices and clothes, found that ‘during some strike days of [i.e. led by the] opposition party, I could not run the business. But how to feed my family members in that time? I spent my capital and even became indebted to feed them’. Karim said: ‘[With microcredit I] purchased a van. However, immediately after purchasing it, my income fell due to very heavy



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rainy season. … I could not immediately find any work on the land of others, since all landowners had hired labour. So I sold the van, to spend the money for feeding the family’. Skills of the would-be organ sellers that have value in the market are few. For Khaleda, ‘I sewed clothes for others before selling my organ, but did not make that much money, since I did not have any training on sewing and could sew only few types of basic clothes’. She ‘could not afford any training due to money shortage, my illiteracy, and most of all I could not spend any day for training since every day was our struggle for that day’s livelihood’. She then started as a housemaid in Dhaka city. Jahangir was driving a CNG in Kalai: ‘I was driving CNG on rent. After paying rent money, I have inadequate amount remaining for my family’s livelihood’. Yet: ‘How could I buy [a CNG]? I could not accumulate 5,000/- taka ever from my earning’. In sum, all the respondents are involved in selling their labour in the informal economy. They compete in the lower skill-reaches of this economy, since they are mostly illiterate and unskilled. As a result, their earnings are poor and unreliable. Although they work hard, they always confront uncertainty in ensuring even a subsistence livelihood, let alone in fulfilling their other ambitions. The work is also very precarious, as in rickshaw pulling in Dhaka or driving a CNG vehicle where one could sometimes be attacked by criminals or harassed by law enforcers; and when they are unable to get to work due to the frequent strikes or to illness, they do not earn on that day. The informal economy provides the would-be organ sellers with much exposure to desirable functionings, but little ability to achieve them. DECAYED RELATIONAL RESOURCES AND THE LONGING FOR A PATRON According to the respondents, another key structural feature concerns their relations with other persons, including with kin and with rural power-holders. It is commonly expected that relational ties in rural communities are beneficial for individuals during a livelihood crisis.34 Relational ties are popularly called social capital.35 Potentially they could ensure an individual or family’s livelihood when it is threatened by hardship, due, for example, to agricultural hazards or governance malfunctioning. However, the stocks of relational capitals in Kalai, both between close kin and with neighbourhood residents, are inadequate to support each other during any crisis. Jahangir reported: ‘All in the neighborhood are my relatives, many of whom are rich, political leaders or elected representatives. We have good relations with all. But support? No, in village, none supports others’. He continued, ‘I didn’t get (or hope for) any help from my community during

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periodic financial suffering before selling my kidney; I only get shaming now for having sold’. Khaleda’s experience was similar: ‘Before selling my kidney, when my family was very vulnerable, I begged for some money to my rich cousin, [pleaded] also an employment for [my] husband to our Union Chairman, but nobody offered anything, not even a drop of sympathy’. Karim reported, ‘The Chairman of Upazila Parishad [the subdistrict council] is my kin, gave me only hope but did not provide anything’. Relations among even very close kin also in some cases cannot be relied on when an individual faces shocks and crisis, as when Khaleda was being forced to repay her debts to numbers of local NGOs and moneylenders and her husband stepped back. In Aftabul’s family, his elder brother provided him a financial loan, but with interest. The respondents perceived a specific type of relation as valuable, easily convertible into resources at times of livelihood shocks, but not accessible for them: ties to a local political patron. In Khaleda’s case: ‘I tried earlier several times to get rice [from the Vulnerable Group Feeding-VGF programme] and card [for entitlement under the Vulnerable Group Development-VGD programme] from the Union Parishad [locality council], but did not get anything. These all are for their supporters, not for common poor like us’. Karim echoed this: ‘Before selling kidney, I along with my wife went several times to member and chairman of Union Parishad for support (VGF rice and VGD card). They said they don’t have any support to give me. Even after selling my kidney, I went to them, but they refused. I told them, I am disabled [partial paralysis of the legs], but they told me that I am fit and I don’t need any support. I know that they only give support to their party men and others in exchange for political support and bribe’. This type of politics in disbursing governmental welfare support is common at local level in Bangladesh and elsewhere: support is disbursed primarily on the basis of a recipient’s political affiliation, to maintain and increase the base of the ruling party.36 If a prospective recipient does not belong to either the ruling or main opposition party, she or he will not receive any support through cash/food/work/land distribution programmes. Further, the expectation by members of the bottom-of-the-ladder group, that they will not get entry into the rural political settlement and its network of power sharing and resource distribution, conditions their exercise of agency. Their perception plus the actual entry-barrier mean they exert insufficient pressure, via either the informal political networks or the official channels like the office of the PIO (Project Implementation Officer, undertaking relief and rehabilitation programmes in the subdistrict) or the Union Chairman’s office, to access opportunities such as work in the 40-days employment programme. With decayed traditional relational ties and the emergence of unwelcoming new relations of rural political settlement, the poor’s livelihoods are insecure.



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The more the potential sellers face relational resources gaps, and exclusion from the political settlement, the more they see a need for a personal patron to help them in times of crisis. The longing for and attachment to a rich patron was visible in several emotional post-sale statements. Milon fondly named as a great man his patron in Moulvibazar, who provided him lodging and food, trained him how to pull a rickshaw, and gave him one. Habibul when a rickshaw puller in Dhaka city developed a friendship with a RAB (Rapid Action Battalion; a Bangladesh Police elite unit) official. ‘Driving rickshaw I became familiar with a RAB official. He asked me for a person from Kalai who could donate organ. Then I offered him my kidney. I told him it is his wish how much money could he offer’. ‘I have seen my friend as very gentle, generous and nice behaving person’, so ‘I didn’t sell organ for financial reasons’. ‘The man did not pressurize me to sell. He frequently asked me to reconsider. The man promised me that if something happened to me, he will look after my two kids and family’. Titu, another rickshaw puller in Dhaka city, in his mid-30s and with a child of seven, developed friendship relations with Khokon, a big businessman who imports and sells cars. He sold his kidney to Khokon, but declined to see this as a sale, calling it instead a donation to his best friend. ‘I did not sell the kidney, since I was driving as rickshaw puller for many years and came to know that he is a good man. He suddenly informed that his two kidneys have been damaged. I gave full consent in donating kidney’. ‘The friend did many things for me. He helped me much continuously. … He is simple and I am also simple’. Karim reported similarly, ‘Even after [the recipient’s] death, her husband (a tax advocate) gives me more money regularly. Otherwise, how can I feed my family? Even he gave me a job in his office, with 8–10,000 taka per month. I gave it up. Then the husband set me up in a local store’. He feels his security is assured through the husband: ‘My dulavai (the husband) assured me frequently that he will be responsible for any life hazards and future of my kids’. ‘He is a famous tax lawyer and he introduced me to everyone that I am his brother-in-law. He didn’t … hesitate to introduce me as his kin, even though I am illiterate and poor, and don’t know manners. I was in fever once in his house; he took care of me through the whole night’. He continued: ‘The lady recipient, Lipi, who died, deposited [a great amount] for me in bank account. This was discovered after her death. But I valued the relation with the recipient’s husband, my dulavai [literally, brother-in-law]. I gave back the money to Lipi’s son, so that the relation still remains solid with dulavai’.37 Decaying relational ties with neighbours and kin do not stop people from seeking supportive relations. Stories of good relations with rich patrons are abundant and popular. A would-be organ seller needs a patron, who should be rich and eager to provide support in any applicable form, whether by

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providing cash, setting up a business, giving a job or bearing the educational expenses of the seller’s children. The patron is to be the seller’s social security, his substitute for personal agency. ABUNDANT CREDIT FLOW AND THE EVENTUAL RECKONING The third important structural feature, identified by all the kidney sellers, was the finance system providing abundant credit flow in rural Kalai. All the respondents had taken huge credits and become heavily indebted to microcredit NGOs and informal rural moneylenders (mohajon). Where employment and own resources prove inadequate to achieve valued functionings, and social relations whether from kin or government provide little or no support, abundant credit fills the vacuum. According to Khaleda: ‘Till now, I did not receive any support from the government for any purpose’ and ‘I borrowed huge, since my family did not have house or any land to build house. Did not have anything required for a family’. Karim, who also took huge loans, said: ‘There are at least hundred NGOs in our locality, and informal mohajons are however many, many’. NGOs and local mohajon moneylenders offer finance in easily accessible ways. Various governmental agencies also sell finance, but more conservatively and only to those who could reliably be expected to repay the loan. Jahangir recalled: ‘I went to Krishi Bank hearing that they provide cheap loan. The bank manager asked for many papers, like agricultural land title documents; and political dalal (dealmaker) asked me for money; I came back as I had none’. A local banker remarked: ‘How can I give credits to people who are not trustworthy to repay, and who are very poor? If the loan is not repaid, this will bring my discredit as the local head of the bank’. For Karim: ‘NGO or mohajon loans are easier, since they don’t require any papers or any bribe’. Let us follow his loans saga further: ‘I took loan around 2,800/- from Grameen and purchased a van. However, immediately after purchasing van, my income fall down due to heavy rainy season. So I sold the van, spent the money for feeding the family. Then the rainy season was over, and I took loan from BRAC, and purchased the van again. However, I did not repay the debt for either of the two. This cycle [of taking loans to purchase a van] continued. Sometimes I repaid the debt by taking loans from other NGOs and other neighborhood and kin mohajon’. A local leader of the ruling party explained: ‘The mohajons are increasing here. For instance, in dull season, the rice millers invest their money, taken in the form of cheap credit from the bank, in informal moneylending with huge interest rate’. The principal of a famous local religious institution observed that: ‘You will find many,



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hundreds, thousands people of mainly lower income category, here, all over the sub-district, for whom taking credits from mohajon is the norm, even if it goes beyond their powers of repayment’. According to all the information from the sellers, there are around 20 registered and non-registered NGOs that operate micro-credit, and numerous informal moneylenders in the three villages in this study. The local mohajon or moneylenders come from neighbours, kin, and various occupational groups, from school and college teachers, local representatives, rural politicians, farmers and businessmen, and from both men and women. The headmaster of the only nearby high school said ‘Who doesn’t do this business? Everyone does it, from primary school teachers to elected ward members, from college teachers to rice processors, almost everyone who has cash money. Even the ones who borrowed from government agencies at cheap rate also invest that money here at higher interest rate’. Responding to the huge demand for easy flow of credit, providing loans is a profitable and popular business. Not poverty reduction but profit becomes the driving force for most of the NGO micro-credit business. According to the kidney sellers, the NGOs know that borrowers are poor and, in most cases, do not invest loans in incomegenerating activities. They do not bother about or monitor where the credit is invested, and only seek repayments. Karim shared that ‘No NGO ever monitors whether I spend the loan money for the said purpose. The NGO official only examined the passbook and checked whether I paid the installment regularly. And nothing else did they monitor. Both NGOs and mohajon know that credit taken from one source usually goes to the other source to repay the debt or to fulfill immediate household needs’. In response to why NGOs give microcredit, he added ‘This is their business’. In Khaleda’s view, ‘Getting loan from mohajon is much easier, though repaying is very difficult, since they charge highest interest rate. I continued repaying mohajon for around 2 years for loan and its interest. My paid interest for mohajon quickly equaled to the same amount as the credit. However, I repaid the mohajon loan by taking credit from NGOs’.38 The potential organ sellers embraced easy access to credit in their neverending quest for means to achieve necessary and valued functionings. For example, Khaleda took loans from six NGOs including Grameen Bank, BRAC, GUK, Palli Daridra, ASA, and Buro Bangladesh, to a total of 45,000/- taka. She also took loans from four mohajon, to a total of more than the NGO loans. As we saw, she invested the money to purchase land for a house, ‘since my family did not have house or any land to build house. … This is eight decimel land and I purchased this with 80 thousand taka all collected by loans’. Karim started taking loans twenty years back. Before he sold his kidney, he was indebted to at least six NGOs and eight mohajon. After the sale, he could

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repay 50,000/- taka due as interest to a single NGO, Grameen Bank. He could not acquire any valuable resources or do any valuable investment. He still has only 1.5 decimel of land, inherited from his father. There is a huge credit market in rural Kalai but little entry by public agencies who provide cheap credits. Access to NGO and mohajon credit is much easier, but these credits are costly, especially the latter. The credit receivers seek freedom to achieve valued functionings, but all fall into a cycle of debt: taking credit from one in order to repay to others. Some resort then even to organ sale, as in Khaleda’s apparently successful case of buying a piece of land to build a house. In contrast, Karim struggled to fulfil even basic dayto-day beings and doings, and had not acquired significant assets even after his kidney sale. ESTABLISHING ACCEPTANCE OF KIDNEY SALE As we have seen, under the given social structures many in the poorest groups in a sub-district like Kalai exist in a ceaseless desperate quest to achieve their necessary and valued functionings. Yet kidney sale is not prevalent in all such districts. The final key structural element then is the institutionalization of selling organs, offering an apparently easy salvation route for people like rickshaw pullers in Dhaka city and the heavily indebted in Kalai. Titu explained that In my society/village, I knew before my selling that many sold their kidneys. I hated it and preferred begging instead. ... But I was slowly thinking about it, and at the same time about my friend’s suffering from his damaged kidney. ... I was then considering that many have sold kidneys in my locality, so if I sell what is the problem? ... Since Kalai people are famous for being bad (as the sellers of kidneys), and since I find myself as one other Kalaian, taking decision to sell my organ was easy; and yes it’s not good, if I were man of other areas I could not sell organs. [He would not have courage] to give organs even for a generous friend, as was in my case.

Similar remarks were made by the other sellers. Khaleda had found that organ sale is popular among the housemaids of Dhaka city. Milon thought that selling a kidney was popular among Dhaka city rickshaw pullers, ‘But now, after five years since I sold kidneys, all the people are highly interested to sell organs if they are highly paid. At least 300–400 people came to me to help plan their kidney selling and manage a better price for their kidney’. Habibul admitted that ‘I don’t know the function of kidney well; but since I have seen that many people gave kidneys in Kalai, that’s why I decided to sell kidney’. The same was echoed by Jahangir: ‘I know that giving kidney is not



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good at all. But I was thinking that many of my fellow people in Kalai sold kidneys, and they are quite ok’. How does the process work to convince people to sell their own organ, something that has been socially taboo? Certain kidney sellers seem to become advocates or exemplars after selling their kidneys. In contrast, others, especially sellers with a negative experience, remain quiet. Responding to a question whether he felt an obligation to advise prospective sellers, Titu said, ‘I understand my own goods and bads, so how can I tell other would-be sellers whether this will be right or wrong for them?’ While at other points he extolled the virtues of his kind friend/patron/buyer, he eventually revealed ‘I did a great mistake and there is no way to undo this, however I don’t need to share my experience and wrongdoing with others in the society’. He felt that doing so would further decrease his dignity in the society. Likewise Jahangir: ‘Even though my workload and mental pressure is much higher than before, I cannot share this with others. Now if I come to my house with a kg of rice and a fish on the basis of my earning, it seems to me that people still perceive that I purchased this by selling kidney. And if I share my pains with them, this will not bring any good for us, instead my family’s dignity if anything of it still remains will be destroyed. ... At least if I know when my physical suffering will be unbearable, I can purchase a bottle of poison’, Jahangir shouted, and continued: ‘Why shall I alert others? I don’t get any hope [from that] of any help from my community other than shaming me. They will intensify my shaming if I tell them the truth’. He declared, ‘My suffering is such that if I would die, this is better. However, I don’t tell this to people. Because no one will have any single drop of sympathy for me’. The rise of resort to kidney sale seems partly based on the spread of positive stories combined with the ex-post coping mechanism of individual sellers that means negative evaluations are not shared. After the kidney sale, those sellers keep to themselves, not exposing themselves to further ridicule and indignity by publicizing their sufferings after the sale. This study’s sample is too small to essay generalizations. It is conceivable that other contented donors did not bother to seek to come forward to tell their story in the way that Khaleda and Karim did; one expects though that others too would have sought to justify their choice. The findings here about the self-silencing of bad news, as by Titu and Jahangir (and perhaps Aftabul), match the main pattern in Moniruzzaman’s larger study.39 From his set of 33 cases in Dhaka, Moniruzzaman concluded that ‘the poor sellers, most of whom do not understand the function of the kidney … are tempted to “donate” because of the buyers’ fraudulent claim that kidney “donation” is a safe, lucrative, and noble act’.40 Many sellers subsequently did not receive the full amounts that had been promised to them. Regarding outcomes, ‘[Moniruzzaman’s] and other existing studies document that kidney sellers’ health deteriorated, their

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economic conditions worsened, and their social standing declined in a serious manner after they sold their kidneys. Moreover, Bangladeshi kidney sellers reveal that selling a kidney has profound psychological and psychosocial impacts on them, especially in relation to their selfhood’.41 Many sellers also become physically weaker and require expensive medicines, hence some become brokers for future sales. Kidney selling has become established in the context that we discussed. First, there is a decay of traditional relational ties and the emergence of a rural political settlement which excludes many of the poor. These trends bring a growing sense of individualization of responsibilities, with the poor left to hunt around for livelihood. Second, for many of them the informal economy does not provide any hopeful space for this quest. It provides subsistence at best, but with much insecurity and uncertainty. In this situation, third, the large credit flows from non-government and informal sources are embraced. But the local finance system enables no more than survival in, not escape from, that quest for security.42 Even though obtaining credits appears an expression and booster of the agency of the questers, they fall into a cycle of indebtedness: taking from one source in order to repay others. This fall even erodes the priority of securing a basic need like housing; credit repayments become the first priority. In this setting, some people resort to selling body parts. Organ sellers whose post-sale experience has been bad don’t consider the well-being of prospective new sellers. They have become absorbed in their own woes; other-regarding functionings wither. Currently the choice to sell organs is not made across all of Kalai, but overwhelmingly in some adjacent villages; however, the choice is spreading. A cycle of socialization appears underway, making the environment more conducive for other people with insecure livelihoods to decide to sell organs. Cases of suffering and regret seem to be kept underground; only stories of financial gains and good health are spread. CONCLUSION: DESPERATION RESORTS TO BODILY SELF-EXPLOITATION We have looked at a locality in Bangladesh where many poor people do not have effective freedom to achieve necessary and valued functionings and where positive stories of organ-sale cases now circulate. Their capability gaps motivate some of these people to sell their own kidney. That many people with certain occupational, income, and social characteristics lack the effective freedom to choose well-reasoned and valuable functionings, and to achieve the functionings they value most, was supported by our review of primary and secondary material.



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One of their priority functionings is to repay debts to microcredit NGOs and informal moneylenders. Even though the creditors know that borrowers mostly do not invest the credit in income generation, and the loans will be spent for daily needs, they readily provide the loans to eager takers. The borrowers are soon forced to prioritize repaying debt over other elements of their welfare. A second valued doing, investing for future income generation, remains in most cases in Kalai limited to the option of buying a CNG vehicle. This requires less training and ensures steady earning, but through a relatively huge investment. Borrowers do not opt for other investments which could also bring steady earning and require less money but which would require serious training. They cannot afford the money or time for such training, and they lack the prerequisite education. They also do not access any of the current skill-enhancing or entrepreneurship-building training offered by the state. Their prioritization of valued functionings is limited by their current capacities, and by lack of public policy suited to help them. A third highly valued functioning is a secure relation with a rich patron. Many kidney sellers seek guaranteed welfare by a patron-client relationship with an organ recipient. Their lack of resources and poor skills-set prevent them from entering even middle economic tiers. While the informal economy has at least the capacity to incorporate people with low skills-sets, some people give credence to stories that a secure relation with a rich person is the best way to ensure their welfare. This belief is attractive given their poor skills, lack of economic resources, and the structural barriers they would face to enhance skills and accumulate resources. Whether it has sufficient general validity can be doubted; for a mechanism of reporting good and not reporting bad experiences seems to be at work. Another valued functioning, seen in Khaleda’s case, is to counteract extreme gendered inequality in the household. There is a gendered division among microcredit borrowers: women are the majority of credit recipients, normally spend the money for immediate household needs, and/or give it to the husband. In contrast, Khaleda courageously invested the credit money to purchase house land, without any direction from her husband. And there is a gendered division of importance, such that Khaleda was still no more than a disposable woman in times of financial stress. These types of gendered inequality frame women’s lives, and constrain what they can achieve. The attainability of the last of the priority desired functionings (sets) that we characterized – building a home and sending children to school – is similarly constrained by social structures, personal agency and their interrelations. Building a home requires a minimum of a few decimels of land, which most potential kidney sellers do not possess hereditarily and cannot purchase through earning in the informal economy. Moreover, under the

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current political order, they cannot get lands or a home through governmental schemes; their perception is that they will not get entry into the networks of political patronage. This limits their attempts to access government-provided opportunities for land allocation, skill training, cheap credits, equipment like a power tiller, or the 40-days employment programme. Where they do have access to state-provided services is for free education for girls up to higher secondary level and free primary education for boys up to the eighth grade. Yet Khaleda and others considered that this free education is underclass education.43 Many parents of even a low income level attempt to send their children to costly private tutors. The functionings that the potential organ sellers prioritize indicate in many ways their weakness of agency. Poor people’s agency and the societal structures condition each other in ways that limit their capacity in choosing what to reasonably value and how to achieve it. The ambitions that are formed are stereotyped, in moulds already seen in the people of the same group, say to become a CNG vehicle driver/owner. In terms of reasoned choice, poor people typically lack the ‘freedom and power to question and reassess the prevailing norms and values’ spoken of by Drèze and Sen.44 The agency attributes they show are determination and reasoning in making their limited choice, heavily constrained by the social structures. Individuals’ agency here does not remedy social arrangements, to make those more effective and appropriate, but instead facilitates their constraining role. This reflects people’s lack of resources, education and training, their low perception of their own status, and other weak agency attributes. Agency of the poor is expressed in (a) shifting between occupations, (b) looking for a patron, and (c) taking relatively huge credits from both microcredit NGOs and mohajon. These forms of agency show struggles to reconstruct and gain from structural arrangements, but also reveal the actors’ vulnerability and compliance within the social order. They do not make the social structure ‘enabling’ or ensure achievability of the valued functionings. For example, the attempts towards achieving basic welfare through taking credits, such as for gaining housing, add a ‘Trojan Horse’ priority functioning of repaying debts and even push it towards first place. It can displace or downgrade other reasoning over appropriate functionings, and eventually make the debtors desperate to regain control. Against this background, kidney selling spreads when real-life information of suffering and problematic actual financial achievement remains unseen, and only storytelling of fortunes is abundant. Some of the kidney sellers abandon concern for others, and hide information of their actual sufferings and financial history. They shrink into preoccupation with their own woes. Socialization in favour of kidney sales grows. In this ‘market’ the would-be buyers are affluent, and have the freedom and confidence to participate in the



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illegal kidney trade and to arrange transplantation. The would-be sellers enter with very weak capabilities. The exchange is ethically flawed: ‘noxious’. Different people are in effect valued differently. The resort to bodily self-exploitation is consistent with the pattern analysed by C.T. Kurien and Partha Dasgupta for many poor people, especially in South Asia.45 Dasgupta’s work shows how market equilibrium wages for rural labour often do not cover the subsistence needs of the worker and his/her dependents. The workers survive but only by declining to a body weight and activity level which are consistent with their low level of consumption. Their malnutrition brings higher rates of sickness and shorter life expectancy. Their children grow up with sub-normal physical and mental capacities. In the worst cases, the workers eventually lose the strength to do the manual work required of them, so are no longer hired and must resort to scavenging or begging. Since the research that was synthesized by Kurien and Dasgupta, a new resort has become available: to sell a body part. In many cases, even this bodily self-exploitation through kidney sale (or quasi-sale within a patronclient relationship) does not lead to fulfilment of livelihood needs, for even the medium-run. It represents, in the terms used by Sample or Deveaux,46 a new venue of exploitation, by others who take advantage of the sellers’ hopes and necessities. Nevertheless, it feeds an ongoing cycle of recruitment of desperate aspirants. To comprehend how exploitation by a kidney purchaser occurs, one must investigate a seller’s decision to engage in bodily self-exploitation. This is what we have tried to do. A person with few capabilities and restricted agency, in a setting of unbearable structural constraints, is unsuited to choose to transact his/her body parts with another person who possesses sufficient freedom and powerful agency. In the transaction, the seller exploits himself/ herself bodily, and, in the cases we examined, becomes exploited by the recipient/purchaser. The two aspects of exploitation are simultaneous and connected.

NOTES 1. Monir Moniruzzaman, ‘“Living Cadavers” in Bangladesh: Bioviolence in the Human Organ Bazaar’, Medical Anthropology Quarterly 26 (2012); Roger Lee Mendoza, ‘Price Deflation and the Underground Organ Economy in the Philippines’, Journal of Public Health 33 (2011); Tsuyoshi Awaya, et al., ‘Failure of Informed Consent in Compensated Non-Related Kidney Donation in the Philippines’, Asian Bioethics Review 1 (2009); Debra A. Budiani-Saberi and Francis L. Delmonico, ‘Organ Trafficking and Transplant Tourism: A Commentary on the Global Realities’, American Journal of Transplantation 8 (2008); Paul Garwood, ‘Dilemma Over

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Live-donor Transplantation’, Bulletin of the World Health Organization 85 (2007); Nancy Scheper-Hughes, ‘Organs Trafficking: the Real, the Unreal and the Uncanny’, Annals of Transplantation 11, no. 3 (2006); Nancy Scheper-Hughes, ‘The Global Traffic in Human Organs’, Current Anthropology 41, no. 2 (2000). 2. Benjamin E. Hippen and J.S. Taylor, ‘In Defense of Transplantation: A Reply to Nancy Scheper-Hughes’, American Journal of Transplantation 7 (2007); J.S. Taylor, ‘A “Queen of Hearts” Trial of Organ Markets: Why Scheper-Hughes’s Objections to Markets in Human Organs Fail’, Journal of Medical Ethics 33, no. 4 (2007). 3. Alex Jingwei He, ‘Transplantation Tourism in Asia: Snapshot, Consequences and the Imperative for Policy Changes’, in Handbook on Medical Tourism and Patient Mobility, ed. by Neil Lunt, Daniel Horsfall and Johanna Hanefeld (Cheltenham, UK and Northampton, USA: Edward Elgar Publishing, 2015). 4. Hagai Boas, ‘Where Do Human Organs Come From? Trends of Generalized and Restricted Altruism in Organ Donations’, Social Science and Medicine 73 (2011); Taylor, ‘A “Queen of Hearts” Trial’; Stephen Wilkinson, Bodies For Sale: Ethics and Exploitation in The Human Body Trade (New York and London: Routledge, 2003). 5. Allison Tong, et al., ‘The Experiences of Commercial Kidney Donors: Thematic Synthesis of Qualitative Research’, Transplant International 25, no. 11 (2012). 6. I. Glenn Cohen, ‘A Fuller Picture of Organ Markets’, American Journal of Bioethics 14 (2014); Nancy S. Jecker, ‘Selling Ourselves: The Ethics of Paid Living Kidney Donation’, The American Journal of Bioethics 14 (2014); Julian Koplin, ‘Assessing the Likely Harms to Kidney Vendors in Regulated Organ Markets’, The American Journal of Bioethics 14 (2014). 7. Moniruzzaman, ‘“Living Cadavers” in Bangladesh’. 8. Mendoza, ‘Price Deflation’. 9. Scheper-Hughes, ‘The Global Traffic in Human Organs’. 10. Taylor, ‘A “Queen of Hearts” Trial of Organ Markets’; Wilkinson, Bodies For Sale. 11. Moniruzzaman, ‘“Living Cadavers” in Bangladesh’; Nancy Scheper-Hughes, ‘Organs Trafficking’. 12. Cohen, ‘A Fuller Picture of Organ Markets’. 13. Ibid., 20. 14. Jecker, ‘Selling Ourselves’. 15. Deborah Satz, Why Some Things Should Not Be for Sale: The Moral Limits of Markets (Oxford University Press, 2010), 181. 16. Des Gasper, ‘Anecdotes, Situations, Histories – Reflections on the Use of Cases in Thinking about Ethics and Development Practice’, Development and Change 31, no. 5 (2000). 17. These seven interviewees gave recorded permission for recording and use of their interview. 18. Mr. Abu Zaeed Aziz, a M.A. graduate of Jahangirnagar University, independent filmmaker, social worker and activist, and a skilled and experienced interviewer. 19. Alan Wertheimer, Exploitation (Princeton, N.J.: Princeton University Press, 1996), 10. 20. Ibid., 207.



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21. David B. Resnik, ‘Exploitation in Biomedical Research’, Theoretical Medicine and Bioethics 24 (2003), 235. 22. Robert E. Goodin, Reasons for Welfare: The Political Theory of the Welfare State (Princeton, N.J.: Princeton University Press, 1988), 147. 23. See also the ten examples of exploitation given in Ruth J. Sample, Exploitation: What It Is and Why It’s Wrong (Lanham, Md: Rowman & Littlefield, 2003), 8–9. 24. Alan Wertheimer, review of ‘Ruth J. Sample, Exploitation: What It Is and Why It’s Wrong (2003)’ Utilitas 19, no. 2 (2007), 259. 25. Amartya Sen, Inequality Reexamined (New York: Russell Sage Foundation; and Cambridge, MA: Harvard University Press, 1992), 40. 26. Amartya Sen, Development as Freedom, 1st edition, 6th print. (New York: Knopf, 1999), 18–19. 27. David Crocker and Ingrid Robeyns, ‘Capability and Agency’, in Amartya Sen, ed. Christopher W. Morris (Cambridge: Cambridge University Press, 2009), 80–82. 28. Des Gasper. ‘What is the capability approach?’ Journal of Socio-Economics 36 (2007), 336–7. 29. Jean Drèze and Amartya. K. Sen, India: Development and Participation (Oxford: Oxford University Press, 2002), 258. 30. Sen, Development as Freedom, 31. 31. Nuno Martins, ‘Sustainability Economics, Ontology and the Capability Approach’, Ecological Economics 72 (2011); Ilse Oosterlaken, ‘Inserting Technology in the Relational Ontology of Sen’s Capability Approach’, Journal of Human Development and Capabilities 12, no. 3 (2011); Matthew Longshore Smith and Carolina Seward, ‘The Relational Ontology of Amartya Sen’s Capability Approach: Incorporating Social and Individual Causes’, Journal of Human Development and Capabilities 10, no. 2 (2009). 32. Ingrid Robeyns, ‘The Capability Approach: a Theoretical Survey’, Journal of Human Development 6, no. 1 (2005), 98. 33. A decimel is 1/100 of an acre. 34. Naomi Hossain, ‘Accounts of Crisis: Poor People’s Experiences of the Food, Fuel and Financial Crises in Five Countries: Report on a Pilot Study in Bangladesh, Indonesia, Jamaica, Kenya and Zambia, January–March 2009’, Social Science Research Network (2009). doi:10.2139/ssrn.1879126. 35. Robert D. Putnam, Bowling Alone: the Collapse and Revival of American Community, 1st Touchstone edition (New York, NY: Simon & Schuster, 2001). 36. Mushtaq Khan, ‘State Failure in Weak States: A Critique of New Institutionalist Explanations’, in New Institutional Economics and Third World Development, ed. by John Harriss, Janet Hunter, and Colin Lewis (London: Routledge, 1995); Hassan Mirza and Wilson Prichard, ‘The Political Economy of Tax Reform in Bangladesh: Political Settlements, Informal Institutions and the Negotiation of Reform’, Social Science Research Network (2013), doi:10.2139/ssrn.2436434; Douglas C. North, et al., eds., In the Shadow Of Violence: Politics, Economics, and the Problem of Development (Cambridge: Cambridge University Press, 2013).

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37. The amount cited was taka 475,000/-. At official exchange rates, this is around US$ 6000, but has a local purchasing power that is perhaps three times greater than in North America. 38. In many cases, to get credit repayment, NGOs seek help from the local mohajon; these typically keep local goons or are themselves capable of exerting muscle to ensure repayments. 39. Moniruzzaman, ‘“Living Cadavers” in Bangladesh’. 40. Ibid., 82. 41. Ibid., 79. 42. Geof D. Wood, ‘Desperately Seeking Security’, Journal of International Development 13, no. 5 (2001). 43. Naomi Hossain, ‘School Exclusion as Social Exclusion: The Basic Education Policy Origins of Adverse Incorporation and Social Exclusion in Bangladesh’, Social Science Research Network (2009b), doi:10.2139/ssrn.1524809. 44. Drèze and Sen, India, 258. 45. C.T. Kurien, Rethinking Economics: Reflections Based on a Study of the Indian Economy (New Delhi and Thousand Oaks, CA: Sage Publications, 1996); Partha Dasgupta, An Inquiry into Well-being and Destitution (Oxford: Clarendon Press, 1993). 46. Ruth J. Sample, Exploitation; Monique Deveaux, ‘Exploitation, Structural Injustice, and the Cross-Border Trade in Human Ova’, Journal of Global Ethics 12, no. 1 (2016).

Chapter 11

What Is Wrong with Price Gouging in the Drug Market? Ruth J. Sample

Valeant Pharmaceuticals International is a pharmaceutical firm that spends very little of its resources on developing new drugs. Instead, it buys up the rights to older drugs and makes them more profitable by raising the price. The (now former) CEO of Valeant, Michael Pearson, argued that these drugs are underpriced in the sense that people and insurance companies are willing to pay much more for them but instead currently pay less than what the market will bear. They are willing to pay more because these drugs are said to have more benefits than other drugs that address the same conditions. In 2015, Valeant raised the price of its diabetes drug Glumetza by 800%. A month’s supply of the drug cost $519.92 in May, 2015. As of August, 2015, it cost $4,643.1 This is part of Valeant’s overall strategy: eschewing research and development, and extracting profits from drugs without a generic alternative. The pharmaceutical giant also raised the price of a drug to treat a rare condition called Wilson’s disease (a genetic inability to adequately eliminate copper from the body). After acquiring two drugs used to treat Wilson’s disease with no generic alternative (largely due to a backlog in the FDA approval queue), the price of each skyrocketed. Valeant’s Syprine, for example, is available in other countries for $1 per pill or less, but in the United States, it now costs $300,000 per year.2 In fact, the practice of raising drug prices just as the drug loses or is about to lose its patent protection is common in the United States. Earlier this year, Turing Pharmaceuticals abruptly increased the price of a drug to $750 per tablet from $13.50, in a move that Turing’s CEO, Martin Shkreli, called ‘altruistic’. Both Valeant and Turing were accused of price gouging.3 Price gouging occurs when a seller takes advantage of an emergency situation in order to charge more for something than the market would normally 221

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bear. In an emergency a new market price is created; but the new market price is sometimes said to be unfair or exploitative. The term ‘price gouging’ itself seems to be ethically thick: it is in nearly every case used as a term of moral disapproval. But is it always wrong? Is price gouging a form of exploitation? And is there anything particularly wrong with price gouging in the pharmaceutical market? I think there is something wrong with price gouging, but I do not think it can be adequately explained by the major non-deontological accounts of exploitation. In what follows, I explain why the standard market account of exploitation defended by Alan Wertheimer, as well as the consequentialist accounts of Robert Goodin and Richard Arneson, cannot explain why it is wrong, when it is wrong.

IS PRICE GOUGING PAYING AN ABNORMALLY HIGH MARKET PRICE? In his landmark book Exploitation, Alan Wertheimer explored the idea of wrongful exploitation. He pointed out that the charge of wrongful exploitation is often made without reference to any definition of wrongful exploitation or any account of what features exploitative interactions must have. There seems to be no clear, publicly recognized principle that allows us to determine which interactions are exploitative and which are not. However, certain examples seem to serve as paradigms for discussing the concept of exploitation and serve to guide us in our search for a principle. Price gouging is one of those examples. Wertheimer begins his exploration by sketching a real-life case of the ‘greedy snowstorm rescuer’.4 He then uses this case (among others) to develop a moralized notion of exploitation. He asks us to consider the following: A fair-minded but not overly altruistic entrepreneur roams the highways in a snowstorm and offers to rescue stranded motorists for an eminently fair price. He takes advantage of the rescuees’ plight in order to supplement his income. True, his rescuees typically feel that they have ‘no choice’ but to accept his help at the proposed price. Still, he hardly exploits their plight in a pejorative sense. No unfairness in the terms of the transaction, no exploitation.5

So taking advantage of their vulnerable situation is not, by itself, sufficient to establish that wrongful exploitation has occurred. The worry here is about the actual price at which the transaction occurs. If the price is too high, the rescuer would be guilty of price gouging: charging a price that is higher than it normally would be, and that is over and above what the rescuer would need



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in order to cover any additional costs incurred in the context of the transaction. So, for example, if the driver needed to purchase snow tires in order to conduct business during snowstorms, that cost might be legitimately built into the cost of a rescue. But a price that is higher than what is necessary to accommodate that raises the question of exploitation. In Wertheimer’s account, the terms of the transaction must be unfair in order for the transaction to be exploitative. Wertheimer argues that exploitation is properly defined as a kind of unfair advantage in which a person A either harms another person B, or gains ‘unfairly or excessively’ in the course of a transaction with B. Furthermore, the interaction need not be one in which the person seeking advantage worsens the situation of the person being exploited: in the case of the greedy snowstorm rescuer, the rescuees benefit from the assistance, and prefer paying the high price to not being rescued. In either type of exploitation – harmful or mutually beneficial – the harm or benefit is defined relative to some baseline.6 Wertheimer considers this a case of non-coerced interaction, because both parties prefer to interact, no one is being threatened with unjust harm, and the interaction is mutually beneficial. But how can the transaction be unfair at all if it is freely agreed to by both parties and both prefer it to not interacting at all? How can it be wrong to act in a way that improves the situation of your interactor? This, I think, is the fundamental paradox of the charge of mutually beneficial exploitation, of which price gouging is an illustrative case. If the transaction worsened the situation of either one of the parties, then presumably neither of them would freely agree to it. The person paying for the rescue prefers doing so to not interacting at all, and the person offering the services is (allegedly) not obligated to provide it at all. The case is thus voluntary, so coercion is not the right moral complaint, and neither is harm. So what else could be wrong with the transaction? The answer to this will point us towards an answer to the question of price gouging. Wertheimer (correctly, in my view) regards mutually beneficial interactions such as the one described above as potentially exploitative. His answer to the question has to do with how far the transaction price deviates from a baseline that Wertheimer suggests is fair: the hypothetical market price. The hypothetical market price – ‘the price that would be generated by a competitive market – does provide a plausible conception of a fair transaction for at least a range of cases’. The competitive market must be free of ‘fraud, monopoly, or coercion’.7 But as such, if the rescue occurs at the hypothetical market price, it is not an exploitative transaction. We can specify the terms of the transaction in a way that would make it exploitative, however. Suppose, for example, the snowstorm rescuer would charge $10. But knowing that the motorist is probably willing and able to pay substantially more, and knowing that it may be a while before another truck

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comes along, the rescuer offers to rescue the stranded motorists for $210. The motorist pays the $210.8 As Wertheimer notes, the rescuer would be willing to do the job for the usual charge of $10 and no less, and $210 is as high as the stranded motorists are willing to pay. This is their ‘reservation price’. So what is the fair, non-exploitative price for this transaction? Somewhere in between; but the space is large. Wertheimer rejects solutions proposed by rational bargaining theory because those theories do not ensure fairness, but only the maximization of individual self-interest. For example, he thinks that David Gauthier’s account of constrained maximization might provide a solution.9 The concept of minimax relative concession says that a rational person cannot expect someone to make a concession if he would not be willing to make a similar concession – if he could not regard the other person’s concession as one that he would be willing to make himself as a rational agent. If A, our snowstorm rescuer, would gain 10 utiles if he received $210 and 5 utiles if he received $150, then his relative concession is 0.5 at $150; if B would gain 10 utiles if he paid $10 and 5 utiles if he paid $150, then his relative concession is also 0.5 at $150.10

In Gauthier’s view of morality as constrained maximization, morality can only be justified as a cooperative system of constraints that improves the overall outcomes of those who are party to the agreement. Constrained maximization does not recognize fairness itself as a reason for constraining one’s actions. Similarly, the ‘Nash solution’ suggests that a rational solution would be to maximize the product of the individual utilities.11 If we supposed that, for example, A would get 4 utiles and B would receive 8 utiles at $100 for a product of 32, but that at any other price the product of the utilities would be lower, then $100 is the rational solution. (Imagine declining utilities for A as the price drops below $210, and rising utilities for B.) In this case, $100 would be the ideally rational price because it maximizes the product of the utilities of each party. Gauthier and Nash reach different results, but in any case, neither is focused on the fairness of the result. Gauthier rejects compromises that are ‘strictly redistributive’ in their effects, and the notion of fairness does not arise at all in the Nash solution. Other theories of rational bargaining might offer an answer to the question of rationality, but Wertheimer is interested in an answer to the question of fairness. So he concludes that rational bargaining theory does not answer the question of what constitutes a fair division of the gains of the transaction.12 Similarly, equality of benefit will not do. Dividing the benefits of a transaction could serve as a ‘focal point’ in Schelling’s sense – that is, a natural point of division that would be acceptable to both parties.13 But Wertheimer



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argues that an equal distribution of the benefits of interaction is the wrong criterion. First, the benefits from a transaction are often ‘incommensurable’, in the sense that the benefit gained by each party might be radically different. In this case, one party gains money, and the other party gains rescue from an unpleasant and possibly dangerous situation. It is hard to compare these gains, whether we look at the subjective aspects or the objective aspects of the gains. But second, it seems that there are just too many transactions where the gains are unequal and yet morally unproblematic. In the case of a lifesaving medical treatment that costs $2,000, for example, it is hard to see how the provider is getting equal benefit to the person whose life has been saved, and yet the unequal benefit is not a cause for concern.14 What about desert? Perhaps the problem in the more fully specified case is that the snowstorm rescuer doesn’t deserve to gain so much from the bad luck of the stranded motorists, and so a price of $210 would be unfair. This is certainly behind many criticisms of economic systems as exploitative: workers generate ‘surplus value’ that is captured by the capitalist; benefit is not awarded to those in proportion to their contribution. However, as Wertheimer points out, it is not obvious that each person ought to be rewarded in proportion to her contribution, especially since one deserves the natural talents that allow for the production of some valuable object or service. It is also not obvious how to measure each person’s contribution, even if desert were the correct criterion of fairness. So while distributing the surplus of the transaction in accordance with one’s contribution is an intelligible principle, Wertheimer does not think it can serve as a ‘stable basis for fair transactions upon which parties could reasonably concur’.15 According to Wertheimer, we are looking for a principle that could serve as a public criterion of wrongful exploitation; even if desert is a plausible criterion, it could not serve as a public principle.16 Finally, Wertheimer arrives at the idea of a hypothetical market price. If two parties cannot arrive at a price that both agree is fair, they could consult an independent expert to assign a fair value to the transaction. As Wertheimer notes, if one friend A wants to sell a house to another B, they would employ an appraiser so that the transaction occurs at the fair market value of the property.17 In this case, the friends are motivated not solely by self-interest but also by a sense of fairness. Neither wants to ‘gouge’ the other. The fair market value is the value of the home in a competitive market. So the hypothetical market price is based on the idea of a competitive market. But what makes a market competitive? Textbook basic assumptions include, at a minimum, that it is not a monopoly: there are a large number of both buyers and sellers. There must be enough buyers and sellers so that no individual can significantly influence the price. In addition, the goods and services being exchanged are assumed to be nearly identical and hence

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interchangeable.18 In some models all are assumed to have complete information, and are assumed to be rational in the sense that each seeks to maximize her own self-interest. There are a number of other assumptions that economists build into the ideal of a perfectly competitive market, such as welldefended property rights, an absence of externalities, zero transaction costs, no barriers to entry or exit, and homogeneous products and services (i.e., objects of trade that are fungible). In a perfectly competitive market, everyone is a ‘price-taker’: no one has the power to set prices. In such a market, there is no actual bargaining at all.19 How realistic is the idealization of a perfectly competitive market? There may be a few markets in which many of these conditions are met or approximated. Commodities such as wheat, coffee, and tea are sometimes used as examples of such approximations. However, the cases we are considering are not such examples. By definition, price gouging involves one party having the ability to set a price. In the case of the greedy snowstorm rescuer, the rescuer could demand any amount up to $210, and the stranded motorists would pay it, although they would prefer to pay less. The rescuer will take as little as $10, but would prefer more. So in this case, the scenario of a perfectly competitive market is explicitly ruled out, because the transactors are not pricetakers. This raises the question of why we should use a perfectly competitive market as the basis for determining the hypothetical fair market price. One reason why economists appeal to the assumption of perfectly competitive markets is for the purposes of prediction. Assuming that these idealized features allow us to make predictions about what will happen in markets over time.20 But prediction is not the point of invoking this ideal here: we are interested in the acting-guiding significance of competitive markets. Perhaps more salient is the prescriptive aspect of the model of the competitive market. There are two approaches here: the libertarian one based on individual property rights, and the other based on claims about maximizing utility. Some libertarians argue that perfectly competitive markets are desirable because, most importantly, they do not constrain individual property rights but maximally defend them. These rights are presumed to be just antecedent to any transaction, and indefeasible to other moral claims such as claims of need or distributive fairness.21 In such markets, property rights are defended and individuals are free to transact with any property they legitimately hold. This view assumes, problematically and without adequate justification, that individual property rights are well-defined and justified from the outset. Such a libertarian, rights-based defence of competitive markets is incompatible with any norm against price gouging, since any constraint on the price a seller demands would be an unjustifiable constraint on individual property rights. It might be ‘indecent’, in this view, to demand $210 for a tow, but it would not be morally wrong in a way that would be enforceable.



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A different, consequentialist approach holds that perfectly competitive markets are desirable because they generate a consumer surplus and maximize economic welfare. The consumer surplus is generated when a consumer pays less than she is prepared or willing to pay. Economic welfare can be thought of as the total benefit to society from an economic transaction or set of conditions. In addition, many economists extol the benefits of competitive markets with respect to motivation, productivity, and moral character.22 The claim that competitive markets tend to produce these effects are of course empirical claims, but they contain a normative assumption, viz., that we ought to arrange our economy so that we generate the best total consequences. In this view, a perfectly competitive market, or one that approximates the ideal as much as possible, creates both a consumer surplus and maximizes economic welfare. However, this normative assumption is not pegged to any particular distribution of surplus or welfare. Since the hypothetical market price defended by Wertheimer is focused on the distribution of the surplus of a mutually beneficial transaction, it is puzzling how the desirability of a competitive market could be the basis for assessing cases of putative exploitation. The general consequentialist claim is that competitive markets are good for people. In cases where price gouging is alleged, the transactions are said to be mutually beneficial, preferred by all parties to a situation of no interaction, and yet exploitative. So it would seem that competitive markets could be good for people and still wrongfully exploitative. Doesn’t the perfectly competitive market seem like an unlikely foundation on which to build an account of wrongful exploitation? Nonetheless, we can at least see the basis of using the idea of a perfectly competitive market as a normative constraint, at least insofar as the market is ultimately justified on consequentialist grounds along the lines that neoclassic economists have suggested. If we think of economic transactions as occurring within the context of a set of parameters tending to maximize utility, and a competitive market is a set of such parameters, then the competitive market is a model for economic interaction that tends to maximize utility. In this way, we can think of welfare-enhancing competitive markets as ‘moral minimums’: any defensible economic system must, at a minimum, raise the overall utility of the members of that system. If ethical norms such as anti-exploitation norms are really constraints within those parameters, then we start with a competitive market and constrain our actions within it. The hypothetical market price adds a constraint of fairness on interactions within such markets, requiring more than the moral minimum. As I pointed out above, in perfectly competitive markets, there is no bargaining. Perfect information and unlimited buyers and sellers create a situation where there is one price for the same fungible item, and anyone who

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wants the item pays that price: they are price-takers. But in our model case of the greedy snowstorm rescuer, there is a large gap between the reservation price of the rescuer and the reservation price of the stranded motorists. Our model case requires that we construct a competitive market by imagining numerous rescuers and stranded motorists, each of whom knows the facts about the numbers of buyers and sellers and the prices at which they are willing to transact. Wertheimer compares this case to the famous case in English law of The Port Caledonia and The Anna (1903), where a tugboat Anna took advantage of its monopoly position to charge the Port Caledonia 1,000 pounds to be rescued. The courts decided that the tugboat was entitled to only 200 pounds. As in that case, there was a bargaining range. A reasonable rescuer would have offered 200, even if he could afford to rescue the boat for free. The rescuer’s rationale would be: True, I could have rescued you for less. But I don’t think that you can complain that I have treated you unfairly when I charged you the same price that you would have had to pay if numerous rescuers had been competing for the privilege of rescuing you. After all, a competitive market price reflects the cost of providing you the good or service. No one would get into the rescue business, as I have, if they were unable to cover their costs.23

Constructing a counterfactual price ‘does seem to provide an external reference point for direct personal dealings that allows all parties to feel that they are not taking advantage of any special vulnerabilities of the other’. Wertheimer is careful to qualify this, continuing, ‘It is not equivalent to the presence of robustly just background conditions’. For at least a range of cases, the hypothetical market price, Wertheimer argues, is a principle that ‘no suitably motivated party “could reasonably reject”’.24 On this account, denoting a transaction as non-exploitative does not underwrite the justice or injustice of the background situation, the total consequences of the transaction, or the justice of the situation the transactors find themselves in. It allows them to reach a bargain that both will reasonably consider fair, within the context of an economic system that is presumed to make everyone better off. However, this approach has difficulties in terms of its feasibility, and in terms of how it ought to be specified. It may not be possible to posit a competitive market in cases where the item subject to exchange is extremely rare or unique. If, for example, I possess and wish to sell the only known example of an ancient Aleutian oil lamp carved in the shape of a seal’s head, there may be no adequate comparators. A reference point for a hypothetical market price here does not exist. So Wertheimer’s solution may not be feasible as a solution to all bargaining situations. Another problem is the kinds of idealization that should be included. Should all parties have full information? Would it be



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acceptable, for example, for a person buying real estate to hide from the seller the likelihood that a valuable resource is hidden on the property? Wertheimer is ‘unsure’ of such cases, pointing out that two friends would probably feel that they have been treated unfairly if such information were not shared, but among strangers there may be a different feeling. In our paradigmatic case of the greedy snowstorm rescuer, should he tell the stranded motorists that a heat wave is on its way that will melt the snow in a short while? Is he obligated to tell the stranded motorists that other rescuers will be roaming the highways soon? It is possible that there are two standards, one for friends or intimates and another for strangers, but the notion of fairness seems to be a concept that applies to interactions among both. It might seem unnecessary to settle the question of what precisely the fair hypothetical market price is, but Wertheimer points out that it is extremely useful to have a clear, public principle for how to reach a price that is considered fair. First, it saves time and effort – much like Schelling’s ‘focal point’ of a 50/50 split. But it also tends to make our social interactions more stable and fluid. Wertheimer claims this is why people leave tips in restaurants they will never visit again and why ‘people prefer going without a beer on a hot day to being “ripped off”’.25 We need everyday heuristics for what is fair, and those heuristics need to be simple, clear, and public. Wertheimer’s solution is certainly compelling with respect to assessing price gouging. If you think that competitive markets represent a situation in which transactions tend towards Pareto-efficiency (if not optimality), then it seems reasonable to claim that the competitive market is moving in the direction of goodness, all other things being equal. In emergency situations, however, the features of perfect market competition are not fully realized and the presumptive value of the market can no longer be assumed. Hence a public criterion of fairness must be established and promulgated to move the situation further in the direction of welfare. A hypothetical market price might not be determinate in all cases, but when it is, it could be the basis of a public principle of non-exploitation. I am still not persuaded by this account as an overall conception of exploitation, however. It is probably most plausible in the cases under consideration, i.e., cases of price gouging, for in many such cases we can extrapolate from information we already have to a hypothetical market price. We could at least guess what the price of a rescue would be if we knew what most of the eligible rescuers in the area would charge for a rescue under these conditions, and if we knew what most stranded motorists would be willing to pay. But even so, it is hard to see what assumption we should make about the number of providers (among other things), and thus hard to determine what such providers would typically charge. Many people would be willing to rescue the stranded motorist for free. Some people might not be able to pay

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for a rescue, or could only afford a price lower than the greedy snowstorm rescuer’s reservation price. The fact that a very wealthy person, for example, would be willing to pay $210 would distort the hypothetical market price if everyone else would only be willing to pay, say, $100. I am not convinced that this method would give us a very clear result – or any result at all. In any case, Wertheimer’s solution seems to implicitly rest on the claim that perfectly competitive markets are, ceteris paribus, morally good. And the primary sense in which such markets are good is that they maximize utility overall. We may assume, reasonably, that more utility is better than less, keeping all other things equal. However, we still do not know how that utility is distributed. No one claims that competitive markets tend towards a fair distribution, only that they increase total utility. Exploitation claims are concerned with the fairness of a transaction, not simply its Pareto-efficiency. And the utility-maximizing nature of competitive markets – especially those we might encounter in reality – has itself not been established. Even if competitive markets overall can serve as a moral ideal (and not merely an ideal for self-interested, amoral agents), there is no reason to think that competitive market prices ought to regulate our own individual behaviour in specific cases. Economists assume that in perfectly competitive markets, individuals are rational agents who always prefer to pay less for what they buy, and to command a higher price for what they sell. Why assume all agents are motivated by self-interest alone? Presumably this assumption allows us to better predict the prices at which a particular market will clear. And perhaps it offers a more stable basis on which to make predictions about what people are willing to pay for a good or service. But even so, there are some markets (such as labour markets) where this assumption seems contravened. For example, some employers pay workers at a higher rate than the market-clearing rate – the so-called efficiency rate. Dan Price, CEO of credit card-processing firm Gravity, became famous for raising the wages of all employees to a minimum of $70,000 per year.26 He said that he chose to do so after reading a paper by Daniel Kahneman and Angus Deaton in which the authors argued that incomes increased beyond $75,000 did not improve the sense of well-being of workers (although it did improve their ‘self-evaluation’).27 So this is the opposite of price gouging: paying people more than the market-clearing rate. Efficiency wages are not new. Henry Ford famously doubled the pay of his workers to an efficiency wage of about $5 per day in 1914. There are a number of explanations for this. Dan Price himself cited worker morale and well-being, but also speculated that it might improve productivity. Economists have argued that paying efficiency wages reduces worker turnover, ‘shirking’, and illness while improving productivity, loyalty, profits, and the quality of the workforce for the firm.28 But the question of whether it is



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rational in a self-interested sense for firms to offer efficiency wages is distinct from the question about whether it is moral for firms to do so. And our concern with exploitation is a moral one: Is there something particularly moral about paying a price that approximates the competitive market price, in cases where such a price could be constructed? Suppose one could successfully make the case that a system of competitive markets (at least over a certain domain of goods and services) is morally ideal relative to other methods of allocating those goods and services. To show this would be to show that the morally best economic arrangement would be one in which every individual seeks to maximize his or her own self-interest in economic transactions. Would it follow that every individual agent ought to act in a completely self-interested manner, as a matter of morality? Some people seem to think so. In addition to being generally criticized by conservative pundits, Price was also criticized by other business owners for bidding up the market. One business owner in the Seattle area said that it made running his own business more difficult, because the minimum wage in Seattle is $11 per hour and is set to rise to $15 per hour in the next five years. The increase in salaries at Gravity put upward pressure on wages on all nearby businesses.29 The claim here has to be that each employer has an obligation to set wages at a non-efficiency level – the competitive market price. But what could be the argument for this claim? The justification for a system of competitive markets is that it is the best overall system in terms of raising total utility. Why should an employer refrain from paying more for labour than is necessary? It is true that efficiency wages will attract more workers to the firm, siphoning off more desirable job candidates from nearby businesses. Note that this is true regardless of the motivation of Dan Price. Whether Price raises wages for self-interested reasons (less turnover, better morale, a more highly skilled workforce, etc.) or moral reasons (improving the well-being of his employees, reducing inequality), the effect on surrounding employers is the same. If other employers cannot legitimately complain when competition for the most desirable workers drives up wages, then how can they legitimately complain when ethical concerns do the same thing? Other than the (misguided) idea that employers have an obligation to demonstrate class-loyalty by refusing to bid up the labour market, I cannot see any wrongdoing here. Price’s ‘crime’ seems to be that he refused to turn a useful assumption for making predictions about markets into an ethical principle. The opposite situation, in which an employer offers a wage below the market rate, does raise ethical concerns. Developed economies, at least, do not even try to have a perfectly competitive market in labour, because developed economies have minimum wage laws. So offering a wage below that minimum might actually be above the perfectly competitive market rate,

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if the labour supply is high enough to suppress the market rate for labour. The problem with offering a sub-minimum wage is not that it violates the ideal of a perfectly competitive market, but that it creates an environment in which workers cannot earn what we would consider an adequate or ‘living’ wage. (Indeed, Price himself thought that a $15 minimum wage was not adequate.) Again, in this case the competitive market price for labour does not do any normative work here. At best, then, the idea of a perfectly competitive market, including all of the assumptions contained in it, can serve as a useful assumption for modelling a certain kind of economy. It is possible that a system of such markets produces the greatest amount of overall utility, but because it is not a model of a fair distribution of that utility, it cannot really serve as a baseline for claims about exploitative transactions. I am not claiming that perfectly competitive markets would in fact maximize overall utility; and I am not claiming that maximizing utility is the ultimate standard of an economic system. But if one could persuasively make the argument that competitive markets really do produce the greatest total utility, it still would not provide the basis for a norm of fairness by which to regulate individual transactions within those markets. PRICE GOUGING AND CONSEQUENCES Wertheimer’s hypothetical market solution is inadequate because it is based on the idea that a perfectly competitive market has normative significance. I have suggested that even if a system of competitive markets has normative significance, it will not tell us about the moral value of individual transactions within that system, particularly if they do not conform to the assumption of perfect competition. The normative significance of a free market system is typically justified either on rights-based libertarian grounds or on consequentialist grounds. The rights-based libertarian justification is that competitive markets protect individual rights – in particular, individual rights over private property. The normative significance of competitive markets in this context is simply that individual property rights ought to be respected and enforced.30 As I suggested above, this justification cannot underwrite criticisms of price gouging. The more widespread consequentialist defence of competitive markets is not so powerless in this regard. Perhaps exploitative transactions are those that tend to create worse consequences overall, and so these sub-optimal consequences could be the basis of an anti-exploitative norm. This would be a thorough-going utilitarian approach, both at the level of the background economic system and at the level of individual transactions within it. The idea here is that competitive markets are pro-utility, and anti-exploitation norms are rules that enhance utility.



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Robert Goodin argued that our norm against exploitation is grounded in consequentialism, because ultimately all of our obligations are grounded in consequentialism. In Goodin’s view, exploitation is a violation of our obligation to protect the vulnerable – a norm that is itself grounded in consequentialism.31 Those who are vulnerable to us are often those with whom we intimately interact, and because of (what I call) our ‘causal proximity’ to such persons, we are particularly well placed to affect their lives for better or worse. Our obligation to bring about the best consequences requires that we adhere to standard norms of interaction. When we take advantage of someone’s vulnerability ‘in situations where it is inappropriate to do so’, we exploit them. In ‘modern societies’ there are four conditions in which taking advantage is exploitative. 1. When the interactor has renounced playing for advantage themselves 2. When the interactor is unfit to play for advantage at all 3. When the interactor is no match for you 4. When your relative advantage derives from others’ grave misfortunes32 Not all playing for strategic advantage is wrong, Goodin says; only when doing so violates the fundamental norm of protecting the vulnerable. ‘We have a strong moral responsibility to protect the interests of those who are particularly vulnerable to (whose interests are strongly affected by) our own actions and choices, regardless of the particular source of their vulnerability’.33 Goodin’s account has the advantage that it can explain why exploitation is wrong, even when neglect has worse consequences. It is a ‘flagrant violation’ of the norm against playing for advantage in certain situations, a norm that must be upheld in order for us to satisfy our obligation to protect the vulnerable. Neglecting others may have very bad consequences, but neglect is distinct from exploitation. As he says, ‘[s]leeping sentries are guilty of all sorts of moral delicts, but exploitation is not one of them’.34 Notice that in this account, it will be very hard to say that any given case of price gouging would violate a norm against exploitation, because in market interactions it is not always obvious what ‘inappropriate’ playing for advantage consists in. Goodin says that it would be wrong to play for advantage in situations where others have renounced ‘playing for advantage’, and in some emergency situations, this might be true. Those who desperately need water are not trying to get water at the best price – they are just trying to stay alive. But in a power outage, buyers may try to shop around for the cheapest generator and end up paying a much higher price than they would like because supplies are temporarily low. Presumably we are not talking about a marketplace of buyers and sellers who are ‘unfit’ to bargain, and the issue of strategizing against others who are ‘no match’ for the seller is not a live one. Here sellers

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may raise prices to take advantage of the misfortunes of others, but are these misfortunes grave? In some emergency situations, the stakes are not matters of life or death but are ones of significant inconvenience, property loss, and insecurity. So when playing for advantage qualifies as wrongful exploitation, in Goodin’s account, is not clear. Nonetheless, he claims that exploitation involves violating a social norm against using another’s vulnerability for one’s own advantage, and that norm is one of protecting the vulnerable. How might this apply to cases of price gouging? Goodin is worried that we have narrowly focused on exploitation in economic contexts, leading us to focus on the distribution of the ‘social surplus’ of interacting rather than the nature of the interaction itself. His conception of exploitation focuses on following established norms that protect the vulnerable, and anti-exploitation norms do just that. A person who strategizes for her own gain under the conditions specified by Goodin would be called a ‘jerk’ or worse. So even though Goodin’s account is fundamentally consequentialist, his focus is on our established norms of interaction that tend to promote good consequences rather than assessing the distributive outcome of the situation. The injunction ‘Don’t be a jerk!’ is an injunction to stay inside the norms that tend to protect the vulnerable and thereby maximize good consequences, without invoking consequences directly. Richard Arneson has developed this idea in his account of anti-exploitation norms and act consequentialism. He argues, like Goodin, that anti-exploitation norms tend to promote good consequences overall, although there are some cases where exploitative transactions would actually maximize good outcomes. The general form of the anti-exploitation norm, in Arneson’s view, is ‘taking unfair advantage of another for one’s own benefit’ in such a way that would ‘exact unfairly excessive profit’ in the transaction.35 Arneson’s account is more narrowly focused on the social surplus of the transaction and how it is distributed, rather than the appearance of undue playing for advantage. In his view, our anti-exploitation norms proscribe transactions with certain distributive results; they do not focus on whether the transactor is ‘being a jerk’. So while Arneson’s view emphasizes the distributive outcome of the transaction, Goodin’s emphasizes the motivations of the agent who is playing for advantage. Both of these views have unclear implications for price gouging. Claims of price gouging are usually made not with reference to the motives of the parties to the transaction so much as the price at which the transaction occurs. Motives of the agents are often inferred from these transactions, but the issue of price gouging does not arise unless the transaction occurs at an atypical price. However, as I pointed out earlier, it is not considered price gouging if the increase in the cost of the transaction is due to an increase in cost for the seller. If the price of bottled water goes up during a hurricane – perhaps



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because water must be trucked in or flown in from far away – the additional cost would not be considered gouging. Prices that are atypically high are an indicator that a seller may be playing for special advantage, but such prices on their own do not underwrite a claim of price gouging. Instead, it seems that the charge is legitimately made when the only explanation for the supernormal price is that one party is playing for special advantage when it is inappropriate to do so. This seems like a reasonable account of the functioning of our ordinary anti-exploitation norm against price gouging in the marketplace. Atypically high prices get our attention and raise the issue of the motives of the seller. Consider again the cases of pharmaceutical corporations Valeant and Turing. What triggered the charge of price gouging was the dramatic rise in price without a concomitant increase in production cost to justify it. Valeant and Turing appeared to be capitalizing on the vulnerability of people who depend on a medication in order to raise prices beyond what was ‘necessary’. In defence of these price hikes, both Valeant and Turing claimed they were not playing for special advantage, and that the price hikes were necessary to cover the true cost of developing and producing these and future drugs. In other words, they affirmed the very definition of price gouging in denying the charge against them: avowing that both components of price gouging did not obtain in their own cases. Cases of price gouging thus appear to embody a ‘two-factor’ antiexploitation norm in the marketplace. On the face of it, it seems that such an account could explain why we think price gouging is wrong. When price gouging occurs, it is a sign that we are not in a competitive market (which, ex hypothesi, is pro-utility), and that actors are playing for advantage when it is inappropriate to do so in such a way as to also undermine utility. So respecting norms in the marketplace that rule out price gouging tends towards good consequences. However, would such an account allow us to say that price gouging is really wrong? And does it promote the best consequences to have and enforce laws against price gouging? Let me address these questions in reverse order. First, does enforcing these norms effectively promote the best consequences? Regarding the first question, some have argued that enforcing laws against price gouging would have detrimental consequences. Matt Zwolinski, for example, claims that enforcing price caps on goods and services during an emergency would lead to shortages. But by definition, price gouging occurs when there is a shortage; a price cap will not create a shortage that already exists. He also argues that those who are unable to purchase those items will suffer the loss of a necessary good that they wish to buy.36 However, in such emergencies, it is usually the case that someone will be unable to buy the item in question because it is scarce; a price cap simply ensures that the unsuccessful buyer is

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that person who cannot pay the increased price. There is some economic data on the effect of price caps in certain situations such as the oil crisis of the 1970s. That is perhaps not a relevant comparator for the cases we are considering here, in which corporations are taking advantage of patent laws and an overburdened FDA to create a monopoly – even if temporary. Corporations did research and development and turned profits before the wave of price gouging began. No one can seriously argue that there will be less availability of a drug that was previously selling at a much lower price, because the cost of production has not changed. What changed was that Pearson, Shkreli and others ‘took the gloves off’ and decided that (despite their public avowals to the contrary), their business was profit extraction, not the discovery of new medicines. Enforcing a ‘price cap’ on these drugs would simply be reverting to a previous market price. How would reverting to this previous point at which the market cleared lower overall utility? The higher price simply takes profit from (mostly) the U.S. taxpayer and insurers who will subsidize these medicines, and imposes significant burdens on patients who have unaffordable copayments. Even the Pareto-optimality of the free market, measured in dollars, remains a just-so story. It is possible that enforcing laws against price gouging might, in some contexts, discourage increased production of the item in question, lowering the total supply. However, this would only be so if the laws were incorrectly structured so that additional costs to the supplier were disallowed in the new price. As I said at the beginning, the idea of price gouging allows for price increases related to increased costs of providing the good or service in an emergency. The fact that an improperly written law would not account for this (and many laws may be improperly written) is not sufficient to show that no price gouging laws should exist and be enforced. In short, I am not persuaded that enforcing anti-price gouging laws would, in general, have bad consequences. The enactment and enforcement of such laws would have to be determined empirically, almost on a case-by-case basis. This brings us to the second question, which is the heart of the issue. Is violating norms against price gouging itself unethical? Is there anything wrong with one person taking advantage of another’s vulnerability to gain an atypically large benefit? More importantly, is there anything wrong with it from a consequentialist point of view? The consequentialist seems to be positioned to appropriate the hypothetical market model and argue that there is a reason why our two-factor norm is what it appears to be: that violating it produces bad consequences. In a competitive market, no bargaining exists, price-takers take their price, and markets clear. The assumption would have to be that this, in itself, is a utility-producing situation. Price gouging introduces bargaining into the situation (in this case by virtue of a monopoly), and since in the case of lifesaving or simply life-enhancing medications there are vulnerable



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people in the bargain, bad consequences are surely in the offing. Even if the patients would prefer higher priced medicine to no medicine, uncertainty about its affordability creates distress and anxiety. It dramatically increases costs for insurers and taxpayers, especially given that the Valeant and Turing strategies are actually widespread, if the price hikes are less noticeable in other cases. ‘Creeping’ price hikes are bad for everyone except shareholders in these firms, some of whom are billionaires with a significant share of stock. At a distance, it certainly looks as though a kind of anti-exploitation norm would work to promote good consequences when widely disseminated and sanctioned. Arneson certainly thinks so. In his view, our norms against unfairly distributing the social surplus of the transaction generally promote good consequences, for a variety of reasons that are easy to see. It tends to favour transactions in the direction of equality, although it does not strictly require equal benefit to both parties. The challenge here is that price gouging appears to be a case of mutually beneficial exploitation, in which both parties are better off by transacting. Both the drug maker and the patient benefit from the market for medicines. How, as Wertheimer originally asked, can this be morally wrong? I think the answer has to be something like the following. Social norms that require us to altruistically promote the best consequences are unworkable, since persons are naturally self-interested (to some degree, at least), and we are most motivated to tend to our own interests and those of our intimates. A market system accepts the reality of this fact. Nevertheless, selfinterested moral agents can constrain their ordinary pursuits by anti-exploitation norms – including the norms against price gouging. Promulgating and enforcing these norms, whether by law or by opinion, will tend towards better consequences than we would get either by promoting untrammelled self-interest in a free market, or by promoting complete self-abnegation in the face of optimal consequences. The question, then, is whether this consequentialist approach entails that it is really wrong to price gouge. Clearly in the cases under consideration, patients do not do as well as the shareholders and managers of drug companies, and the total consequences of price gouging in any given transaction are not optimal. A competitive market constrained by anti-exploitation norms would seem, overall, to create better consequences than an unconstrained one, and possibly better than one in which we enjoined one another to simply promote the best consequences. Perhaps a rigorous, direct act consequentialism might lead us to distance ourselves from moral constraints in our dealings with non-intimate others. By the same logic, however, a norm that requires us to attenuate profit seeking in transactions that are mutually beneficial to others might also lead us to distance ourselves from such moral constraints. This two-factor, consequentialist account can explain why we tend to think that price gouging, at least in the context of drug prices, is wrong. Yet given

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the mutually beneficial and voluntary nature of such transactions, it is hard to see how such an account can explain why it really is wrong.

NOTES 1. Andrew Pollock and Sabrina Tavernise, ‘Valeant’s Drug Price Strategy Enriches It, but Infuriates Patients and Lawmakers’. The New York Times, 4 October, 2015. 2. Bethany Mclean, The Valeant Meltdown and Wall Street’s Major Drug Problem. Vanity Fair, Summer 2016. 3. Ariana Cha Eunjung, ‘CEO Martin Shkreli: 4,000 Percent Drug Price Hike is “Altruistic”, not Greedy’. The Washington Post, 22 September, 2015. 4. Alan Wertheimer, Exploitation (Princeton: Princeton University Press, 1996), 5. 5. Wertheimer, Exploitation, 208. 6. Ibid., 207. 7. Ibid., 230–1. 8. Ibid., 218. 9. David Gauthier, Morals by Agreement (Oxford: Clarendon, 1986). 10. Ibid., 219. 11. John F. Nash, ‘The Bargaining Problem’, 18 Econometrica (1950): 155. 12. Wertheimer, Exploitation, 221. 13. Thomas Schelling, The Strategy of Conflict (New York: Oxford University Press, 1963). 14. Wertheimer, Exploitation, 223. 15. Ibid., 229. 16. I am not sure Wertheimer is correct about this. Although there may not be agreement about how to measure the contribution of the parties involved, we could presumably develop such a metric and apply it in at least some cases – particularly those involving workers and managers. The fact that the metric would not be precise and unanimously agreed upon does not mean that it could not serve as a public basis. 17. Wertheimer, Exploitation, 230. 18. N. Gregory Mankiw, Principles of Economics, 7th edition (Cengage, 2015), 66–67. 19. Idem. 20. Ibid., 82. 21. Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1974), 150–1. 22. See for example, Bhagwati Jagdish, In Defense of Globalization (Oxford: Oxford University Press, 2004). 23. Wertheimer, Exploitation, 233. 24. Ibid., 233–4. 25. Ibid., 240. 26. Karen Weise, ‘The CEO Paying Everyone $70,000 Has Something To Hide: Inside The Viral Story of Gravity CEO Dan Price’, Bloomberg News, 1 December, 2015.



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27. Daniel Kahneman and Angus Deaton, ‘High Income Improves Evaluation of Life but not Emotional Well-being’, Proceedings of the National Academy of Sciences of the United States of America 107, no. 38 (2010): 16489–93. 28. Paul Krugman, ‘Notes on Walmart and Wages (Wonkish)’. The New York Times, The Conscience of a Liberal, 10 June, 2015. Also D. Raff, and L. Summers, ‘Did Henry Ford Pay Efficiency wages?’ Journal of Labour Economics, 5, no. 4 (1987): S57–86. 29. Patricia Cohen, ‘A Company Copes with A Backlash Against the Raise That Roared’, The New York Times, 31 July, 2015. 30. Idem. See also Murray Rothbard, The Ethics of Liberty (Humanities Press, 1982). Some would place Ayn Rand in this camp, although I think her view is better understood as a kind of Nietzschean perfectionism. 31. Robert Goodin, Reasons for Welfare (Princeton: Princeton University Press, 1988). 32. Robert Goodin, ‘Exploiting a Situation and Exploiting a Person’, in Modern Theories of Exploitation, ed. Andrew Reeve (London: Sage, 1987), 166–200. 33. Robert Goodin, Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities (Chicago: University of Chicago Press, 1985), 187. 34. Goodin, ‘Exploiting a Situation and Exploiting a Person’, 188. 35. Richard Arneson, ‘Exploitation and Outcome’, Politics, Philosophy and Economics 12, no. 3 (2013): 393. 36. Matt Zwolinski, ‘The Ethics of Price Gouging’, Business Ethics Quarterly 18, no. 3 (2008): 352–53.

Chapter 12

Exploiting Hope through Unproven Medical Interventions Jeremy Snyder

In the 20 years following the publication of Alan Wertheimer’s Exploitation, extensive scholarly attention has been paid to the concept of exploitation, with particular focus on cases of mutually beneficial and voluntary but morally problematic exchanges. Many authors have expanded on Wertheimer’s insight that the wrongness of exploitation can be linked to the fairness of the outcome of an exchange while others have drawn on Wertheimer’s work to link exploitation to the unfairness of socio-economic systems. A separate camp of exploitation theorists have argued that mutually beneficial and voluntary interactions can be morally problematic due, under various interpretations, to a failure to discharge a Kantian duty of respect on the part of the exploiter.1 In this chapter, I seek to expand on this scholarship by examining a specific form of exploitation. Theorists from varied camps agree that taking advantage of another’s vulnerabilities is central to the wrongness of exploitation. These vulnerabilities can take many forms, including a desperate need for goods essential to survival, ignorance as to the value of a good, and membership in a group that faces discriminatory treatment. My aim is to examine the moral wrongness of what is often described as ‘exploiting hope’ or ‘taking advantage of hope’. My aim in doing so is to determine, first, whether ‘hope’ is the sort of vulnerability that can be meaningfully said to be taken advantage of and, if so, whether there is anything distinctive about the moral wrongness of this form of exploitation. By ‘exploiting hope’, I have in mind interactions in which one individual benefits from another’s hope that the interaction will result in some desired outcome. Hope, for the purposes of this chapter, is not understood as a miscalculation, misunderstanding, or misapplication of the likely outcome of an intervention, but rather as imaginative and optimistic engagement with this outcome despite its statistical unlikelihood.2 While various kinds 241

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of interactions can be said to be cases of ‘exploiting hope’, I will focus on instances of profiting from the sale of interventions for illnesses that have not been proven effective for the treatment of these illnesses. In what follows, I present the case of the market for unproven medical interventions and then use this case to demonstrate shortcomings in accounts of exploitation that link the wrongness of exploitation to unfairness in transactions or social structures. Instead, I argue that the exploitation of hope for better health through unproven medical interventions is possible when the exploiter fails to discharge a duty of beneficence that is specified by the exploitee’s vulnerability to the exploiter. THE MARKET FOR UNPROVEN MEDICAL INTERVENTIONS For individuals with medical needs that cannot be fully addressed through proven medical treatments, it is not uncommon to look to what is perceived to be the cutting edge of scientific advancement for new interventions in the process of being proven effective or, in the minds of some, being ‘suppressed’ through inertia, ignorance, or self-interest on the part of the medical establishment. Patients have long sought enrolment in legitimate clinical trials for new drugs and medical treatments in the hope that they will gain early access to new means of addressing their medical needs. While these clinical trials aim to produce generalizable knowledge that will benefit the general population and not specific trial participants, the hope remains for many participants that they will benefit as individuals.3, 4 Frustrated by limitations in the clinical trial process, including proscriptions against direct benefits to trial participants and the use of placebo or other control arms in these trials, some patient advocates have argued for so-called right to try laws that allow pharmaceutical companies to distribute experimental drugs that have not yet gained approval from regulatory agencies. In order to encourage pharmaceutical companies to allow patients access to unproven interventions through these laws, such legislation often includes protection of these companies from legal liability if the interventions are ineffective or harmful.5 ‘Right to try’ legislation is not in place in many jurisdictions and even where they are, many medical companies choose not to make their experimental interventions available outside of clinical trials. However, the practice of ‘medical tourism’ – understood as patients crossing international borders in order to access medical care, paid for out-of-pocket – allows individuals to travel to legal jurisdictions where accessing unproven interventions is legal or at least not actively prosecuted. Desperate and relatively wealthy patients travel worldwide for a range of unproven interventions, including venoplasty



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for multiple sclerosis (MS), chelation therapy for Lyme disease and autism, and stem cell procedures for a host of medical conditions.6 This globalization of health care has meant that regulations in one jurisdiction aimed at limiting patients’ access to unproven therapies are quickly undermined by access to these same therapies in nearby jurisdictions, often at a lower cost than in the patient’s home country. These forms of access to unproven medical interventions have raised concerns that those selling these interventions are exploiting seriously ill people by providing allegedly cutting-edge, ‘miracle’ cures for their medical conditions without evidentiary support. For example, some critics of ‘right to try’ legislation have argued that these laws have the potential not only to slow the progress of clinical research by removing the incentive to participate in clinical trials, but also that permission to distribute unproven interventions and protection from legal liability will allow individuals to ‘exploit the dying with impunity’.7 In many cases, these critics charge that those selling unproven medical interventions are exploiting their customers’ hope for a cure or improved quality of life. For example, the International Society for Stem Cell Research (ISSCR) maintains that clinics offering unproven stem cell interventions ‘are exploiting patients’ hopes by purporting to offer new and effective stem cell therapies for seriously ill patients, typically for large sums of money and without credible scientific rationale, transparency, oversight, or patient protections’.8 Similarly, doctors capitalizing on publicity around former hockey great Gordie Howe’s reported recovery from the effects of a stroke following an unproven stem cell intervention are accused of ‘exploiting hope’ for rapid recovery following treatment.9 What is less clear is why these interactions are thought to be morally problematic and what is meant by the charge that hope, specifically, is being exploited. WHAT’S MORALLY PROBLEMATIC ABOUT OFFERING UNPROVEN MEDICAL INTERVENTIONS? In some cases, the sale of unproven medical interventions is rightly found to be morally problematic because those selling these interventions engage in outright fraud or fail to ensure informed consent. Fraud can take place if the vendor knowingly misrepresenting the efficacy of the intervention or does not offer the intervention as described. In some cases, fraud around unproven treatments can affect large numbers of people, as when a Winnipeg-based physician enrolled 70 patients in what was claimed to be a clinical trial of an unproven stem cell intervention for MS. In this case, the fraudster lacked the medical credentials he claimed and made false claims about the positive

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results of his clinical trial being run in India.10 In practice, patients often do report being misled about the nature, efficacy, and cost of unproven interventions by unscrupulous vendors.11 This fraud can rob patients of money paid for treatment, create opportunity costs when false claims about unproven interventions lead patients to abandon current treatment or to not access alternative treatments, and can undermine the legitimacy of well-run clinical trials for new medical treatments. In the Winnipeg case, patients paid up to $45,000 each to participate in the alleged clinical trial, were not given follow-up treatment or testing after completing the trial, and in some cases were removed from the trial after raising concerns about it.12 In cases like these, fraudulent administration of unproven medical interventions can create clear harms and losses for participants on top of the moral wrong of deception, leading to little controversy over the ethical problems connected with them. Even in cases that do not involve fraud or other forms of misinformation, persons purchasing these interventions may also fall victim to deficiencies in their ability to give fully informed consent to participate in the intervention. Unproven interventions might be exploitative of the hope experienced by patients, in this view, because of the high cost associated with these interventions in a context where patients do not understand the likely consequences and are therefore unable to give fully informed consent.13 This failure of fully informed consent can occur because of varying quality of information sources regarding unproven interventions, many of which contain false, misleading, or incomplete information. For example, unproven stem cell interventions have been found to be discussed in highly positive terms on social media such as Twitter, including efficacy claims not backed by evidence and a lack of consideration of the potential risks of these interventions.14 Similarly, online websites for companies selling unproven interventions have been found to emphasize unsubstantiated benefits while downplaying or failing to communicate the risks of these interventions.15 While information about unproven interventions from noncommercial entities exists, the information available to patients is not comprehensive and must compete with commercial and more biased sources of information.16 Alternatively, those seeking unproven interventions might suffer from a cognitive defect that undermines their ability to give rational consent. In this view, ‘faith and hope trump reason’ and they take on ‘religious-like belief’ in the powers of these unproven interventions, ‘meaning that individuals are not able to rationally process their likely risks and outcomes.17 As one women who purchased an unproven and ineffective cancer treatment put it, ‘When you want so hard to believe something, you end up listening to your heart and not your head’.18



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Hope for positive results can be differentiated from forms of cognitive distortion such as ‘therapeutic misestimation’ and ‘therapeutic optimism’ or ‘unrealistic optimism’ that undermine informed consent. In cases of therapeutic misestimation, individuals fail to understand the risks of a medical procedure or the likely benefits of the procedure, creating the potential for the patient being unable to give fully informed consent to the procedure.19 In cases of therapeutic optimism or unrealistic optimism, an individual believes that their outcome will be ‘more favourable than that suggested by a relevant, objective standard’ or ‘more favourable than the outcomes of peers’.20 As with therapeutic misestimation, unrealistic optimism can be understood as a form of bias or cognitive distortion. Hope, on the other hand, needn’t entail that the individual believe that they are more likely than the evidence suggests to have a positive outcome or avoid a negative outcome from receiving medical care. Rather, a hopeful individual focuses on the potential, positive outcomes of an intervention, justifying attention to and imaginative engagement with this outcome despite, in some cases, its statistical unlikelihood or where its likelihood is unknown. The hopeful person needn’t misestimate the likelihood of this outcome or apply the likelihood of this outcome to themselves differently than for others. Knowing the true likelihood of the outcome, the hopeful person turns her attention to this outcome, including by fantasizing about and planning around it.21 One way of understanding these concerns is to say that vendors are ‘exploiting the hope’ of these patients, in the sense of taking advantage of their inability to give meaningful consent. These patients are ill-informed or too emotional to give consent to these procedures, creating a vulnerability that vendors are able to exploit to their own benefit. This feature of these transactions is likely present in many or perhaps most morally problematic cases of patients receiving unproven interventions. However, I would like to argue that taking advantage of another’s ignorance or lack of rational capacity, while morally problematic, should be kept conceptually separate from exploitation. Following Wertheimer’s argument that exploitation is morally problematic distinct from the use of fraud or force or the causation of a harm to another, these instances of taking advantage of ignorance or irrationality can be classified as instances of fraud (if the vendor misrepresents information or knowingly takes advantage of the patients’ ignorance) or a failure by the patient to act autonomously.22 One reason for wanting to keep ‘exploitation’ separate from failures of consent or patient autonomy is that, despite being in an emotionally vulnerable situation, patients seeking unproven interventions may be aware of the costs and likely consequences of seeking these interventions and yet choose to seek them anyway. These patients have been found to often downplay

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the possibility that unproven interventions will produce a ‘miracle’ cure or complete recovery from their medical condition; rather, small, incremental improvements or a halt or slowing of the degeneration of their health was sought.23 For many of these patients, the appeal of pursuing unproven interventions was that it allowed them to take an active role in managing their health, even if the expected positive results were modest or non-existent. This is particularly true for patients with the most severe and often terminal illnesses, for whom their lack of other options and sense of desperation are acute.24 In these cases, the experience of agency and hope for positive outcomes rather than the reality of these outcomes was the most likely benefit, one that they felt was worth the cost of these interventions.25 On the one hand, these cases present the actions of consenting adults who, while they understand that the medical interventions they are purchasing are unproven and thus offer little evidence that their health will be improved other than through a placebo effect, nonetheless find value in pursuing this hope for a positive result from the intervention. On the other hand, these patients often pay very large sums of money for these treatments without good evidence of health benefits resulting from the intervention (and indeed some risk of harm). Those selling these interventions take advantage of this hope despite knowing that they are unable to offer any assurances of benefit and, in fact, have little or no scientific basis supporting the use of the intervention. Viscerally, these cases take the form of bad actors exploiting the hope of sick and desperate persons even if the vendor does not act fraudulently and the patient is fully informed. It is not obvious, however, if these specific cases are in fact problematically exploitative (and, if so, why) or whether we are simply conflating these cases with more clearly problematic instances of fraud and lack of informed consent. EXPLOITING HOPE I have argued elsewhere that the concept of exploitation can be broken down into three distinct forms of moral failings: transactional or micro-fairness exploitation, where an individual takes advantage of a situation or vulnerability in another individual to receive an unfair portion of the benefit created by a transaction with that individual; structural or macro-fairness exploitation, where an individual takes advantage of structural injustice to receive an unfair or unjust portion of the benefit created by a transaction with another individual who is disadvantaged by that injustice; and needs exploitation, where an individual fails to discharge a specified duty of beneficence to another person.26 After considering and putting aside applications of the two fairness-based accounts of exploitation to cases of exploiting hope for relief



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from health-related problems through the use of unproven medical interventions, I will discuss how a needs-based account of exploitation can illuminate what is and is not morally problematic about voluntary and non-fraudulent use of these interventions. Transactional Exploitation of Hope The most well-known transactional account of exploitation was developed by Alan Wertheimer.27 Wertheimer argues that exploitation can be voluntary and mutually advantageous and takes place when conditions allow one party to take ‘special’ unfair advantage of another.28 That is, while everyday transactions may be coerced through the use of force, unjust given historical or structural injustices, harmful, or exhibit a range of other morally problematic characteristics, the particular moral wrong of exploitation takes place when special factors arise that the exploiter uses to extract unusual advantage from an interaction. For example, it may not be morally problematic for a pharmacist to sell an antidote to a poison at a competitive price under normal conditions, but if a manufacturing error destroys all other supplies of the antidote during a mass poisoning, the pharmacist would act exploitatively by taking advantage of this unusual situation to raise her prices in response to the desperation of her customers. Wertheimer typically uses a standard of fairness tied to a hypothetical fair market price in order to determine when exploitation has occurred. However, he is clear that ‘there is no reason to think that there is a unique principle for fair transactions, given that the contexts in which such transactions occur can vary …’ and that the appropriate principle of fairness ‘for distributing educational resources may be different from the best principle for distributing health care’.29 In his later writings applied to the context of clinical testing on human subjects, Wertheimer does not defend a hypothetical fair market price for use in this context and notes the difficulty of producing an account of fair transactions for these cases.30 The most well-developed account of the exploitation of hope is presented by Adrienne Martin who draws heavily on Wertheimer’s account of transactional exploitation. Martin uses the example of the anti-cancer drug Avastin that has been shown in early clinical trials to yield small increases in life expectancy.31 Owing to patent protections and marketing exclusivity for new pharmaceutical products, drug manufacturers such as Genentech, Avastin’s manufacturer, can charge extremely high prices for these products. Dismissing a common defence of these prices that they are needed for pharmaceutical companies to recover the costs of research and development, Martin states that ‘if a hypothetical market price is the correct standard for fair exchange, then the exchange we’re concerned about is unfair. There is no

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competitive market for these drugs, and they would be significantly cheaper if there were’.32 Given this standard of fair exchange, then, the high prices that pharmaceutical patent holders can charge for experimental and unproven interventions can lead to the exploitation of their customers. Martin does point to a real problem in pharmaceutical pricing generally, where the patent and marketing exclusivity systems in place in much of the world allow for the exploitation of persons desperate for these products. However, linking the wrongness of the exploitation of hope to the problem of monopoly pricing for pharmaceuticals cannot account for the full range of or even central cases of exploiting hope for the efficacy of unproven interventions. This is because these interventions are often not offered by those with a monopoly on the procedure or product. For example, biological materials such as one’s own stem cells that are processed and injected back into the patient, surgical procedures such as venoplasty for chronic cerebrospinal venous insufficiency (CCSVI) treatment, and other products for which rudimentary testing has not been conducted and patent protection has not been sought are typically not protected by patents. In these cases, there is the potential for a highly competitive market for these goods and services. While their prices might be high and the hope and desperation of individuals may create considerable demand for these goods and services, these prices will not be considered unfair and exploitative on Wertheimer’s account as adopted by Martin. Competition for unproven interventions can be fierce, especially as regulatory limitations on the ability of vendors to offer them in some jurisdictions have created a global medical tourism market for unproven interventions. An online search for clinics offering CCSVI treatment will quickly yield dozens of results, and clinics offering unproven stem cell interventions are even more numerous. While these facilities do not compete solely on price, with their reputations among online communities of patients factoring significantly in their popularity, the global market for many unproven interventions cannot be called uncompetitive. Even when the cost of travel to these clinics is factored in for patients living in jurisdictions that have prohibited access to certain unproven interventions on the grounds of patient safety, many of these facilities are located in countries with very low labour costs that likely would make them less expensive than facilities in North America and Europe.33 The transactional unfairness of prices for unproven interventions cannot tell the full story of the exploitation of hope stemming from these interventions, at least if fairness is tied to a hypothetical fair market price. What of other standards of transactional fairness, especially those offering a better baseline of fairness for the context of medical care? While some other, nonmarket-based standard of fairness may be better suited to this context, I am sceptical that it will get to the heart of what people find problematic about



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selling unproven interventions to persons who are hoping for improved health without supporting evidence for their efficacy. That is, the source of the moral disquiet with these cases is largely that they take any advantage of the exploitee’s desperate hope, not that the resulting distribution of benefits is unfair as a result of some special vulnerability within the terms of the transaction. Structural Exploitation of Hope If the problem with taking advantage of hope for the efficacy of unproven medical interventions isn’t a special unfairness with the outcome of the transaction, perhaps instead it is structural injustice that leads to unfair results for those purchasing these interventions. Structural or macro-fairness exploitation occurs when an individual takes advantage of structural injustice to gain an unfair share of the benefits of an interaction with someone disadvantaged by this injustice. The concern with this form of exploitation is based on the claim, as Thomas Pogge puts it, that taking advantage of another’s needs is particularly morally problematic when this need ‘is to some extent due not to the poverty of their country but to the injustice of its social institutions and policies’.34 Pogge then draws on this point to argue that in order to avoid taking advantage of structural injustice, one must treat those disadvantaged by injustice ‘as if this injustice did not exist’.35 Wertheimer rightly criticizes this type of response to structural injustice, noting that it is unreasonable to require individuals singly to address the background injustices from which they benefit.36 These structural injustices are a collective problem, collectively caused. There are enormous epistemic and practical challenges in determining what a fully just world would look like and then acting to bring it about.37 An account of structural exploitation can instead rely on discharging collective obligations to address injustices from which one benefits. For example, Iris Young’s political conception of justice requires that individuals discharge their shared responsibility to address structural injustice based on their power to respond to or influence unjust structures, privilege created through these structures, interest in reforming these structures, and the collective ability of agents to combine their efforts to reform specific structural injustices.38 Taken together, these factors serve to shape our political responsibility to address specific structural injustices. Applied to the context of exploitation, taking advantage of a structural injustice heightens one’s privilege and may be indicative of greater power to influence these structures and interest in doing so. Structural exploitation, then, is a failure to discharge this political responsibility when interacting with those disadvantaged by structural injustices.39 While Martin makes use of Wertheimer’s hypothetical fair market standard of fairness in the context of pharmaceutical pricing, she also argues that a

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‘standard for fair prices’ should be developed and enforced for pharmaceuticals. She sets this standard at a rate that would ensure a ‘decent minimum’ of access to necessary medical care as a matter of basic justice but notes that access to cutting-edge treatments may not be required by this standard.40 While Martin does not explore a structural version of exploitation, her discussion of the injustice of limited access to medical care opens the door for applying this interpretation of exploitation to the context of unproven medical interventions. If we agree that a failure to provide universal access to a decent minimum of medical care is a structural injustice, then there is reason to think that medical providers that take advantage of this injustice without discharging their political responsibility to address this injustice are guilty of exploiting their customers. While limited access to a decent minimum of medical care does raise concerns about structural exploitation, Martin is right to be cautious in linking exploitation in the sale of unproven medical interventions to a lack of universal access to these treatments. Given that these treatments are unproven or, in the case of Avastin, of limited proven efficacy, it would be difficult to make the case that justice or a decent minimum of access to health care requires access to these interventions. Rather than addressing an injustice, requiring universal access to these treatments at an affordable rate, if doing so required public subsidies or other public expenditures, would be a great injustice given that public resources are finite and expenditures on unproven interventions would reasonably require diverting resources from supporting access to proven interventions. This concern was part of the debate over public financing of the unproven CCSVI treatment in Canada, for example, where critics of such funding noted both the opportunity costs created by this potential diversion of resources and the danger of politicizing public funding of medical care based on the demand by interest groups of funding for specific, unproven interventions.41 Putting aside arguments that a lack of public funding or private insurance support for unproven interventions is unjust, one could instead look to the vulnerability created by a lack of domestic access to certain of these interventions where regulatory bodies have banned their sale. It is not at all clear that these patient protections are unjust as they follow a long history of public health activities such as the inspection of meat and water for safe consumption, consumer protections around the truthful labelling of food and medicines, and prohibitions on the sale of harmful products. Moreover, the disadvantage to those impacted by these restrictions is reduced greatly by their ability to access these goods and services abroad in many cases. As discussed previously, the financial consequences of having to travel abroad for unproven interventions is often little to none, though these customers will face the inconvenience of having to travel for care. Providers of unproven



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interventions might exploit this alleged structural injustice by providing these services without discharging their political responsibility to address this injustice, but given that their power to do so would be very limited as foreign providers, it is not clear what shape this political responsibility might take. Taken together, there is great reason to doubt that structural exploitation is present in, much less at the heart of, concerns that providers of unproven medical interventions exploit the hopes of their customers. Instead, we can take a closer look at a third form of exploitation, where individuals treat others as mere means to their own advantage. EXPLOITING THE ‘NEED’ FOR UNPROVEN INTERVENTIONS A third form of exploitation occurs when the exploiter violates some form of the Kantian proscription against treating others as a mere means to one’s ends. Applied to exploitation, this failure is typically described in terms of failing to accord others the respect due to them in virtue of their humanity.42, 43 This failure of respect can take the form of treating others as mere objects by disregarding what others need in order to live a distinctly human life or treating others as objectifiable.44 Applied to the case of unproven medical interventions, as I will argue below, those taking part in these interactions seek not just better health but also the opportunity to take control over their health and to adopt a more optimistic and hopeful outlook, all of which can be taken advantage of through this Kantian version of exploitation. A prominent example of this view is given by Ruth Sample.45 Sample argues that exploitation takes place when we seek to benefit ourselves while failing to honour the value that all human beings have. In addition to taking advantage of an injustice as in cases of structural exploitation, this failure of respect occurs when one fails to give others what they need to flourish and when we treat others as commodifiable. Similarly, I have argued that exploitation takes place when the exploiter fails to discharge a specified duty of beneficence to another.46 This specified duty of beneficence requires individuals to aid those falling below a threshold level of well-being, limited by one’s own needs and the dependence of the other person for support from oneself. If we understand exploitation to entail a failure of respect or failure to discharge a specified duty of beneficence towards others, do those offering unproven medical interventions exploit their customers who are hoping that these interventions will prove efficacious? The answer to this question will depend on the context of these interactions. Of particular concern will be purchases of unproven interventions at very high prices which potentially conflict with the customer’s ability to meet their other needs, including adequate housing and savings. These kinds of interactions appear frequently

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in news coverage of those seeking unproven interventions, where houses are mortgaged or sold,47 savings are drained and large debts incurred,48 and charity fundraisers are held49 in order to cover the costs of these interventions. In these cases, patients drain their own savings and that of others by seeking an intervention that is unlikely to have a lasting, positive health impact. This outcome motivates much of the criticism of those who sell these interventions. What they demonstrate is that the concern with ‘exploiting hope’ is with benefitting from another’s desperation in a way that is unlikely to confer any real, lasting benefit to the customer. The customer may well know this, but the criticism is that the vendor not only fails to confer much benefit to her customer but also participates in and facilitates the customer’s self-harming action. The vendor need not prevent the customer from acting in this manner, but should not facilitate the customer in doing so. In some cases of customers seeking unproven interventions, this aspect of self-harm is not present because the cost of the intervention is moderate and/ or the customer has sufficient resources to afford the intervention. As a result, in these cases it is not morally problematic, from the perspective of exploitation, to sell unproven medical interventions. In my own research on persons with MS seeking an unproven intervention, the individuals my colleagues and I spoke with generally felt very positively about their decision to spend tens of thousands of dollars for this intervention even when perceived symptom relief was temporary. These individuals acknowledged doctors who ‘didn’t make any real promises’ but who experienced ‘positivity’, ‘excitement’, and ‘hope’ from this intervention. The advantage gained from this intervention was described in one case in terms of ‘I knew what was going to happen to me if I did nothing. And so I was going to do something’.50 The positive effects of accessing unproven interventions has been documented elsewhere, rooted in the positive effects of optimism and hope on health independent of the efficacy of the intervention itself.51, 52 Given the potential benefits of unproven interventions, even for those who will experience significant financial distress as a result, why not simply deny that exploitation takes place in any of these cases? We could treat all customers of unproven interventions as rational adults, choosing to purchase hope for better health and using their resources as they see fit. Doing so could be said to be not only consistent with respect for others, but required of it insofar as these customers are not being defrauded and have been fully informed of the lack of scientific basis for any positive effects from the interventions beyond a placebo effect and sustained hope for better health. The concept of partial entrustment, used by Richardson and Belsky in the context of ancillary care obligations, can be helpful here towards understanding why those selling unproven interventions should not simply sell these goods to their customers at a fair market price once information about their



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effectiveness is disclosed.53 They argue that in some relationships aspects of an individual’s well-being are entrusted to another, creating a responsibility to protect and promote that person’s health. This partial entrustment arises when the partial trustee is given discretion over how something the other individual cares greatly about will be cared for, making this individual particularly vulnerable to the partial trustee. This kind of entrustment is common in relationships in the medical context. Physicians are entrusted with their patients’ overall health, creating a high degree of vulnerability. Researchers are given less discretion over research participants’ health.54 However, aspects of their health related to the research are entrusted, creating limited ancillary care obligations for researchers. What is distinctive about entrustment in cases of the sale of unproven interventions to those with very serious medical needs is that the customer authorizes discretion over a wider range of their overall well-being than is the case in a typical physician-patient relationship. This occurs because, if the customer genuinely understands that the intervention is unproven, what the customer is seeking through the interaction is not simply improved health but also a sense of taking control over their well-being, optimism and an improved outlook on life, and a sense of direction and purpose in their lives. As the patient with MS quoted above noted, patients often want ‘to do something’ even if sustained, improved health is not a likely outcome. By entering into a relationship with their customers, those selling unproven interventions accept discretion over their customers’ well-being beyond simply their health. As these vendors cannot offer a likely chance of improved health without deceiving their patients, they can only promote their customers’ well-being if they nurture the benefits of hope in a manner that does not destroy the customer’s ability to achieve or protect other elements of well-being. While selling unproven interventions does not necessarily harm customers’ well-being, high prices for these goods can do so, particularly as these prices are not offset by likely, long-term health gains. For this reason, clinical trials for unproven interventions, where participants are typically not required to pay to participate, are less likely to raise concerns about exploitation than do private sales of these interventions. Once those selling these interventions enter into these relationships they accept their customer’s entrustment and these heightened obligations emerge. Disregarding these obligations solely in order to promote their own well-being, then, will be a case of exploiting their customers’ hopes. We can look at other alleged cases of exploiting hope to see how the concept of partial entrustment illuminates what is taken to be problematic in these cases. Consider a case where Arthur has a romantic crush on Beth. Arthur spends his free hours thinking of Beth, dreaming of what a relationship with Beth would be like, and, increasingly, coming to believe that his

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happiness is tied to a future with Beth. Arthur repeatedly asks Beth out on dates and is rebuffed. Realizing that a romantic relationship with Beth is very unlikely, Arthur instead approaches Beth with the following offer: He is willing to perform her housework, buy her dinner, and take on any other tasks that she might ask of him in the hope that spending more time together might warm Beth to him. Beth responds that she is not physically attracted to Arthur, finds his personality off-putting, and sees no chance of ever developing romantic feelings towards him. Arthur accepts these statements as fact but reiterates the offer anyway out of a stated interest in keeping his hope for a relationship with Beth alive. Beth accepts Arthur’s offer, thinking that she will benefit and that Arthur is a fully informed and consenting adult who seems to find this exchange in his interest. The exchange between Arthur and Beth is arguably exploitative – to be specific, Beth exploit’s Arthur’s hope for a romantic relationship with her. As with cases of hope for better health from unproven medical interventions, the concern is that in this case Beth fails to show sufficient concern for Arthur’s overall well-being. Arthur is an adult giving fully informed consent to the relationship and determines that the value of extending his hope, however unfounded, for a relationship with Beth is worth the cost of time, financial resources, and the considerable risk to his emotional well-being. By accepting Arthur’s proposition, Beth takes on responsibility for many aspects of his well-being, no matter how clear she has been to Arthur that he should have no hope of establishing a romantic relationship with her. Beth chooses to facilitate an emotional entanglement with Arthur that will foreseeably harm him in the long term. Through her actions, Beth shows concern only for her own gain from the relationship and fails to act sufficiently to promote the aspects of Arthur’s well-being with which she has agreed to be entrusted.55 This example serves to show that viewing the exploitation of hope in terms of a failure to protect and promote dimensions of well-being with which one has been entrusted depends on an element of emotional vulnerability and entanglement. By entrusting their well-being to the seller of an unproven intervention, these customers become highly vulnerable to the actions of the seller, both in terms of their physical health and their psychological and emotional well-being as they experience the progress of what is typically a very serious and potentially life-threatening medical condition. These customers seek not to purchase what is likely to be a life-saving or even long-term health-promoting intervention. Rather, they seek a means to preserve their optimism about the future, investment in their present care, and positive engagement with those around them. In this way, the entrustment of their well-being in the seller of these unproven interventions encompasses many elements of the customer’s well-being, creating significant responsibilities for the seller.



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While not all hopeful interactions will include this depth of emotional vulnerability and entanglement, the claim here is that interactions that include an element of desperation about the present and are determinative of a large portion of the individual’s future prospects and sense of well-being are particularly ripe for exploitation. This is because the heightened vulnerability in these relationships creates a heightened element of entrustment for the potential exploiter and therefore a greater degree of responsibility for the potential exploitee’s well-being. POLICY IMPLICATIONS FOR UNPROVEN INTERVENTIONS If my argument is correct, then one upshot is that exploitation is likely a narrow subset of what people object to when unproven interventions are sold privately. Concerns about fraud and failures of consent are likely at the heart of most of these objections, focusing on cases where the seller misleads her customers as to the efficacy of the intervention or where these customers fail to fully understand the likely outcomes of using these interventions. Existing policies aimed at preventing fraud and informing the choices of customers should be used and potentially expanded in order to address these important ethical concerns.56,57 For cases where the ethical concern is genuinely linked to exploitation, understood as a failure of the seller to discharge her specified duty of beneficence towards the customer, effective and focused policy responses are much more difficult. Many countries forbid the sale of unproven interventions on the grounds that they have not been proven safe and effective through clinical trials submitted to and approved by the relevant regulatory agency. These policies can be justified on many grounds, including those justifying prohibitions on the sale of pesticide-contaminated water or expired food even if the customers of these (presumably discounted) goods are aware of the risks of their use. That is, the state is arguably justified in promoting the health and safety of its citizens and, in doing so, can undermine individual autonomy in some cases. This loss of autonomy can be offset by enhancing access to (and thus funding for) well-run clinical trials that have the potential to preserve the hope of participants for better health and produce generalizable knowledge while protecting participants from fraud and exploitative pricing. Even increased access to clinical trials is likely to be limited in its effect on enhancing options for those considering purchasing unproven interventions, however. Well-run clinical trials must complete many hurdles before enrolling human participants, meaning that many interventions being sold will not be able to be offered through the alternative of clinical trials.

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While these prohibitions are arguably justified as protecting customers from the harms of private sales of unproven interventions, individual countries can create and enforce these prohibitions only within their own borders. As a result, the global nature of the trade in unproven interventions means that sellers and customers can move to jurisdictions allowing these transactions. As a result, exploitation in the sale of hope for benefits from unproven medical interventions can and will continue. On the other hand, the opportunity to access unproven interventions outside of one’s home country does enhance the freedom of those persons with the resources to purchase these services without undermining their ability to meet their basic needs. The most effective means of reducing the exploitation of hope for better health from unproven interventions is likely to be counselling from potential customers’ medical caregivers. This approach, already advocated for in order to reduce incidences of uninformed decision-making, can be adapted to help ensure that patients’ decisions regarding unproven interventions take into account both the likely outcomes of these interventions and the personal, family, and financial costs of purchasing them.58 Help and advice from relatively disinterested and well-informed parties can serve to balance against the self-interested participation of those sellers of unproven interventions that are willing to exploit their customers’ hope for improved health. CONCLUSION I have argued that those selling unproven interventions can exploit the hope of their customers for improved health even when these customers are well informed of the likely outcomes of these interventions. This exploitation takes place not due to unfair pricing or taking advantage of structural injustice. Rather, the exploitation of hope occurs when one fails to discharge a duty of beneficence that is specified by the vulnerability created by the customer’s entrustment of their physical and emotional well-being in the seller. While greater access to well-run clinical trials and increased intervention by medical caregivers can reduce this form of exploitation, the global nature of trade in unproven interventions means that more countries must ban this practice in order to reduce this exploitation of hope. NOTES 1. Jeremy Snyder, ‘Exploitation and Sweatshop Labour: Perspectives and Issues’, Business Ethics Quarterly 20, no. 02 (2010): 187–213. 2. Adrienne Martin, How We Hope: A Moral Psychology (Princeton: Princeton University Press, 2013).



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3. Z.A Nurgat et al., ‘Patient Motivations Surrounding Participation in Phase I and Phase II Clinical Trials of Cancer Chemotherapy’. British Journal of Cancer 92, no. 6 (2005): 1001–5. 4. Rebecca D. Pentz et al., ‘Therapeutic Misconception, Misestimation, and Optimism in Participants Enrolled in Phase 1 Trials’. Cancer 118, no. 18 (2012): 4571–78. 5. Rebecca Dresser, ‘“Right to Try” Laws: The Gap between Experts and Advocates’, Hastings Center Report 45, no. 3 (2015): 9–10. 6. Glenn I. Cohen, Patients with Passports: Medical Tourism, Law, and Ethics (New York: Oxford University Press, 2014). 7. Andre Picard, ‘Do the Dying have the Right to Experimental Drugs?’ Globe & Mail, 11 May, 2015. 8. George Q. Daley et al., ‘Guidelines for the Clinical Translation of Stem Cells’, Research ISSC 19 (2008): 4. 9. Judy Illes and Fabio Rossi, ‘No Miracle Therapy for Stroke’. Vancouver Sun, 3 February, 2015. 10. Melissa Martin and Mary Agnes Welch, ‘City Man Who Ran Stem-Cell Trial for MS Patients Fabricated Credentials, Overstated Results’, Winnipeg Free Press, 13 January, 2015. 11. Lisa Szabo, ‘Doctor Accused of Selling False Hope to Families’, USA Today, 8 July, 2014. 12. Martin and Welch, ‘City Man Who Ran Stem-Cell Trial for MS Patients Fabricated Credentials, Overstated Results’. 13. Alan Petersen, Casimir MacGregor, and Megan Munsie, ‘Stem Cell Tourism Exploits People by Marketing Hope’, The Conversation, 15 July, 2014. 14. Kalina Kamenova, Amir Reshef, and Timothy Caulfield, ‘Representations of Stem Cell Clinics on Twitter’, Stem Cell Reviews and Reports 10, no. 6 (2014): 753–60. 15. Darren Lau et al., ‘Stem Cell Clinics Online: The Direct-to-Consumer Portrayal of Stem Cell Medicine’, Cell Stem Cell 3, no. 6 (2008): 591–94. 16. Zubin Master et al., ‘Stem cell Tourism and Public Education: The Missing Elements’. Cell Stem Cell 15, no. 3 (2014): 267–70. 17. Petersen, MacGregor, and Munsie, ‘Stem Cell Tourism Exploits People by Marketing Hope’. 18. Szabo, ‘Doctor Accused of Selling False Hope to Families’. 19. Sam Horng and Christine Grady, ‘Misunderstanding in Clinical Research: Distinguishing Therapeutic Misconception, Therapeutic Misestimation, & Therapeutic Optimism’,: IRB: Ethics & Human Research 25, no. 1 (2003): 11–16. 20. James A. Sheppard et al., ‘A Primer on Unrealistic Optimism’, Current Directions in Psychological Science 24, no. 3 (2015): 232–37. 21. Martin, How We Hope. 22. Alan Wertheimer, Exploitation (Princeton: Princeton University Press, 1996). 23. Petersen, MacGregor, and Munsie, ‘Stem Cell Tourism Exploits People by Marketing Hope’. 24. Carlos Novas, ‘The Political Economy of Hope: Patients’ Organizations, Science and Biovalue’, BioSocieties 1, no. 03 (2006): 289–305.

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25. Jeremy Snyder et al., ‘I knew What was Going to Happen if I did Nothing and so I was Going to Do Something”: Faith, Hope, and Trust in the Decisions of Canadians with Multiple Sclerosis to Seek Unproven Interventions Abroad’, BMC Health Services Research 14, no. 1 (2014): 445. 26. Snyder, ‘Exploitation and Sweatshop Labour: Perspectives and Issues’. 27. Wertheimer, Exploitation. 28. Wertheimer, Exploitation, 232. 29 Wertheimer, Exploitation, 236. 30. Wertheimer, Rethinking the Ethics of Clinical Research: Widening the Lens (New York: Oxford University Press, 2010). 31. Adrienne Martin, ‘Hope and Exploitation’, Hastings Center Report 38, no. 5 (2008): 49–55. 32. Martin, “Hope and exploitation”, 53. 33. Cohen, Patients with Passports: Medical Tourism, Law, and Ethics. 34. Thomas Pogge, ‘Testing Our Drugs on the Poor Abroad’, In Hawkins, Jennifer and Ezekiel Emanuel (Eds.), Exploitation and Developing Countries: The Ethics of Clinical Research (Princeton: Princeton University Press, 2008), 112. 35. Pogge, ‘Testing Our Drugs on the Poor Abroad’, 113. 36. Wertheimer, Exploitation. 37. Snyder, ‘Exploitation and Sweatshop Labour: Perspectives and Issues’. 38. Iris Marion Young, Responsibility for Justice (New York: Oxford University Press, 2011). 39. Snyder, ‘Exploitation and Sweatshop Labour: Perspectives and Issues’. 40. Martin , ‘Hope and exploitation’, 54–55. 41. Daryl Pullman, Amy Zarzeczny, and Andre Picard, ‘Media, Politics and Science Policy: MS and Evidence from the CCSVI Trenches’, BMC medical ethics 14, no. 1 (2013): 1. 42. Joshua Preiss, ‘Global Labour Justice and The Limits of Economic Analysis’, Business Ethics Quarterly 24, no. 1 (2014): 55–83. 43. Michael Kates, ‘The Ethics of Sweatshops and the Limits of Choice’, Business Ethics Quarterly 25, no. 2 (2015): 191–212. 44. Snyder, ‘Exploitation and Sweatshop Labour: Perspectives and Issues’. 45. Ruth Sample, Exploitation: What it is and Why it’s Wrong (Oxford: Rowman & Littlefield, 2003). 46. Jeremy Snyder, ‘Needs exploitation’. Ethical Theory and Moral Practice 11, no. 4 (2008): 389–405. 47. Justin McElroy, ‘Penticton Teen Hopes to Have Experimental Cancer Treatment in Texas’, Global News, 5 March, 2015. 48. Arla Bull, ‘Supporters Rally to Raise Cancer Treatment Funds for Teacher’, Kitsap Sun, 25 September, 2015. 49. Joanna Frketich, ‘Family Raising $100,000 for Experimental Treatment for Son’s Lyme Disease’, Hamilton Spectator, 16 April, 2015. 50. Snyder et al., ‘I knew What was Going to Happen if I did Nothing and so I was Going to do Something’.



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51. Alan Petersen, Kate Seear, and Megan Munsie, ‘Therapeutic Journeys: The Hopeful Travails of Stem Cell Tourists’, Sociology of Health & Illness 36, no. 5 (2014): 670–85. 52. Sindia Madan and Kenneth I. Pakenham. ‘The Stress-Buffering Effects of Hope on Adjustment to Multiple Sclerosis’, International journal of behavioral medicine 21, no. 6 (2014): 877–90. 53. Henry S. Richardson and Leah Belsky. ‘The Ancillary-Care Responsibilities of Medical Researchers: An Ethical Framework for Thinking about the Clinical Care that Researchers Owe Their Subjects’. Hastings Center Report 34, no. 1 (2004): 25–33. 54. Richardson and Belsky, ‘The Ancillary-Care Responsibilities of Medical Researchers’. 55. Another, comparable example of exploiting hope is the relationship between a gambler and a casino or lottery corporation where the gambler hopes, despite unfavourable odds, to win money needed to erase a debt or otherwise improve her life. Those providing these services are often seen to have a duty to restrict gambling that becomes self-destructive or is otherwise problematic even when it occurs between fully informed and consenting adults. However, problematic gambling often demonstrates an element of psychological compulsion, undermining claims that the exchange is consensual. See Luke Clark et al., ‘Pathological Choice: The Neuroscience of Gambling and Gambling Addiction’, The Journal of Neuroscience 33, no. 45 (2013): 17617–23. 56. Aaron D. Levine and Leslie E. Wolf, ‘The Roles and Responsibilities of Physicians in Patients’ Decisions about Unproven Stem Cell Therapies’, The Journal of Law, Medicine & Ethics 40, no. 1 (2012): 122–34. 57. Arthur Caplan and Bruce Levine, ‘Hope, Hype and Help: Ethically Assessing the Growing Market in Stem Cell Therapies’, The American Journal of Bioethics 10, no. 5 (2010): 24–25. 58. Jeremy Snyder et al., ‘Navigating Physicians’ Ethical and Legal Duties to Patients Seeking Unproven Interventions Abroad’, Canadian Family Physician 61, no. 7 (2015): 584–86.

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Index

Adidas, 51 Africa, 92n15 Anand, India, 125 Anderson, Elizabeth, 123, 131 Anker, Christien van den, 162, 169–72 anti-colonialism, 172 Arneson, Richard, 234, 237 Asian Americans, 85 Assisted Reproductive Technology (Regulation) Bill (India), 140 Avastin, 247 Baby M case, 100, 101, 102 Bailey, Alison, 148–49 Bangladesh: education in, 216; kidney sales in, 9, 195–217; Rana Plaza factory collapse in, 42; social conditions in, 44 Bangladesh Fire and Building Safety Accord, 42 bargaining, 15–32; under capitalism, 5, 30, 33n13; ‘desert’ in, 225; duty of concern and, 31–32; ‘equality of benefit’ in, 224–25; of executives, 20–21; inequality in, 16–21, 26–32; in intimate labour, 126–33; labour market and, 19–21; law and, 26–32; Marxist analysis of, 22–23; morality and, 25–26; rational bargaining

theory and, 224; wealth in U.S. and, 18; Wertheimer on, 26, 222–25, 228–30. See also markets; price gouging beauty, 179–91; body hair and, 180, 181, 182, 186; body image and, 181, 185–86; desperate choices, 187–89; dominant ideal of, 8–9, 180–82, 187; exploitation theory unsatisfactory, 189–91; implants and, 180, 184, 185; informed consent and, 183–86; pressure on men and, 190; restricted choice in, 179–80; rising demands of, 180–82, 187; risks of, 184–85; skin colour and, 180, 182; structural exploitation theory of, 8–9, 186–89; transactional exploitation theory and, 8–9, 183–86; vulnerability and, 185–86; Western norm of, 182 Belsky, Leah, 252 Benería, Lourdes, 47 blacks: black/white wealth gap and, 94n34; examples of discrimination against, 85–86; synergistic effects of racism on, 86–87. See also racial exploitation body image. See beauty breast implants, 184, 185, 188 Brysk, Alison, 163, 169, 170, 171 279

280 Index

Buchanan, Allen, 33n20 Butler, Judith, 111 Cambodia, 51 Canada, 124–25, 162–63, 170, 171, 250 capability approach, 9, 198, 201–3 capability set, 202–3 capital flight, 42 capitalism: bargaining power under, 5; and class exploitation, 68–70; defended, 15–16, 23–24, 33n21; employment-seeking and, 19–20; exploitative nature of, 43–44, 68; political relationships in, 69–70; and public support, 29; racial exploitation and, 77, 79–84; rate of profit under, 33n15; resistance to, 76; worker ownership under, 30. See also markets; Marxism caste discrimination, 146, 151 CCSVI (chronic cerebro-spinal venous insufficiency), 248, 250 Chakravarty, Depita, 48, 51 Chambers, Clare, 188 Charter of Rights and Freedoms (Canada), 124 child brides, 141 childcare, 169 child labour, 151, 161 China, 51 Chinese Americans, 85 chronic cerebro-spinal venous insufficiency (CCSVI), 248, 250 civil sphere, 61–63 class: under capitalism, 6, 60, 68–71, 75–76; consciousness of, 76, 88; definition of, 68; labour theory of value and, 76; and racial exploitation, 79–84; and surplus value, 75 Clinton, Hillary, 180 coercion: libertarian theory and, 36, 37–38, 53n16; poverty as, 164; presence or absence of, 8, 106, 126–27; trafficking and, 162. See also consent Cohen, G. A., 33n13

Cohen, I. Glenn, 197 colonialism, 47, 78, 149 commodification, 99–152; of land, 103; marketplace norms and, 123; normalization of, 102; regulation of, 104–5; social norms and, 123–24. See also markets; surrogacy commodification theory, 99–135; background injustice and, 6–7, 99–103, 119–20; continuums vs. absolutes in, 102–5, 121, 122, 124–25, 130, 131, 134; corruption in, 120–26; critiques of differentiated, 111–12, 119–20; equality and, 109–10; vs. exploitation theories of surrogacy, 126–27, 134–35; ideal vs. non-ideal justice in, 134–35. See also markets; surrogacy competition. See markets compulsive gambling, 259n55 consent: in beauty matters, 183–86; in compulsive gambling, 259n55; degrees of, 106, 164; discretionary exploitation and (Mayer), 53n16; in feminist literature, 117n25; gendered division of labour and, 162; in intimate labour, 126–27, 128, 131–32, 162; in structural exploitation theory, 2, 147–49; surrogacy and, 147–48; in sweatshops, 43–45; transactional account of, 37–38; in unproven medical interventions, 243–46, 254, 255; in women’s care work, 8. See also coercion; mutually beneficial exploitation consequentialism, 3, 9, 39, 197, 227, 232–38 corporations, transnational, 39, 41–42, 49, 221, 235 cosmetic surgery. See beauty Council of Europe, 170–71 credit, 196, 210–12, 216 Dasgupta, Partha, 217 debt, 203–4. See also credit

Index

281

Declaration of Independence (U.S.), 109 Declaration of the Rights of Man and the Citizen (France), 109 ‘The Desert Exploiter’, 37–38, 41, 43, 44 desperate choices, 25–26, 101, 187–88, 248, 249 developmental power, 45–46 Dhaka, Bangladesh, 44, 45, 212 discretionary exploitation (The Desert Exploiter), 37–38, 41, 43, 44 Du Bois, W. E. B., 75, 93n27 duty of beneficence, 10, 39–40, 241, 251, 255, 256 Dymski, Gary, 76

labour as, 35–59; women’s rights and, 157–75. See also specific headings Exploitation (Wertheimer), 222–25, 241

Elson, Diane, 46–47, 48 equality: norm of, in intimate labour, 131; recent history of, 109–10. See also inequality ‘equality of benefit’, 224–25 Erin, Charles, 101 ethics of care, 164–67; critique of, 165–66, 173; definition of, 157, 163, 164; goals of, 166; political theory and, 164–65; vs. rights discourse, 164 executive pay, 20–21 exploitation: bargaining power in, 15–34; beauty and, 179–93; commodification and, 99–115; definition of, 60–61, 64–65, 70–71, 105–12, 142–43, 145, 152, 222–23, 233, 245, 246–47, 251; discretionary (The Desert Exploiter), 37–38, 41, 43, 44; inequality and, 99–152; intimate labour and, 119–35; kidney sales as, 195–217; markets and, 59–71; medical intervention as, 241–59; price gouging as, 221–38; racial, 75–95; rival models of, 10–11; in social relationships, 59–71; structural, 35–57; structural injustice and, 15–95, 134–35, 139–55; surrogacy as, 99–152; sweatshop

gambling, 259n55 Ganguli Mitra, Agomoni, 7–8 Gasper, Des, 9 Gauthier, David, 224 gender, 163–64; cycle of vulnerability in, 160–63, 170–73; differences between, 160–63; discrimination on grounds of, 47–48, 140–41, 160–61, 170, 172; division of labour by, 8, 157–59, 160–61, 162, 163, 166, 170 George, Henry, 103 globalization: surrogacy and, 113, 115; sweatshop labour and, 46; unproven medical interventions and, 242–43, 256; women’s care work and, 159, 161–64, 167 global structural exploitation, 43–50 Glumetza, 221 GNP, 168 Goodin, Robert, 3, 105, 233–34 government: gendered division of labour and, 157; non-enforcement of laws, 141; probitions on unproven medical interventions, 255–56; racial exploitation and, 83; sweatshop labour and, 40–42 Grameen Bank, 204, 210, 211–12 ‘The Greedy Snowstorm Rescuer’, 222–24, 225, 226, 228–30

Federal Housing Agency (US), 86 feminism: Baby M case and, 100, 101; critique of structural exploitation theory, 43; critique of trade unionism, 51; debate on commercial surrogacy, 101–2; ‘difference’ among women and, 160; economics of, 167–69; second wave of, 157, 158; structural analysis of gender difference, 160–63

282 Index

Harris, John, 101 Harrison, Ann, 42 Held, Virginia, 165, 166 Holmstrom, Nancy, 22, 49, 50 home-workers, 40 Honduras, 51 hope, exploitation of. See unproven medical interventions household work, 151, 158 Howe, Gordie, 243 Hurka, Thomas, 192n26 Hussain, Waheed, 5–6 hypothetical market price, 107–8, 110, 223, 225, 227–30, 247–48 India: caste discrimination in, 151; corruption in, 141; garment industry in, 48; gender discrimination in, 140–41; household work in, 151; law enforcement in, 141; patriarchal culture of, 140–42; poverty in, 125–26, 140, 144; pro-business culture of, 142; racial discrimination in, 141–42, 146; surrogacy in, 99–101, 108, 123–26, 127, 139–42, 144, 147 individualism, 166, 167 inequality, 99–152; in bargaining, 15–34; commodification theory and, 130–34; definition of, 4; exploitation defined by, 109–12; exploitation without, 21–25; of Indian women, 140–41; redistribution addressing, 27–28; structural, in kidney sales, 197, 206, 215; structural, in surrogacy, 114–15, 139–52; in structural exploitation theory, 144–47 infertility, 113 injustice. See structural injustice instrumentalization, 7, 23–24, 62, 67, 78, 111, 122, 123 International Society for Stem Cell Research (ISSCR), 243 intimate labour, 119–35; alienation in, 122; bargaining power in, 126–28, 129–30; commodification

of, 126–27, 133; consent and justice conditions in, 126–27, 128; continuums vs. absolutes in, 102–5, 121, 122, 124–25, 126, 130–31; corruption and, 120–26; distributive norms and, 123–24, 131; inequality and, 130–34; inherent value and, 122. See also sex work; surrogacy Islam, M. Shaiful, 9 Israel, 111 ISSCR (International Society for Stem Cell Research), 243 Jaggar, Alison, 157, 160, 161–62, 163–64, 173 justice. See structural exploitation theory; structural injustice Kalai, Bangladesh, 198, 212, 213–14 Kant, Immanuel, 38–40, 93n20, 122, 241, 251 kidney sales, 195–217; acceptance of, 212–14; capability approach and, 198, 201–3; case studies of, 198–99, 203–14; consequences to sellers, 197, 213–14; credit flow and, 210–12, 214, 216; desperate choices in, 214–17; exploitation in, 196, 199–201; inequality and, 197–98, 206, 215; number of, 198; objections to, 101, 195; patronage and, 204, 207–10, 215; regulation of, 197; sellers’ motives, 203–6, 215–16; social capital and, 207–10; transplant tourism and, 196 Kirby, Jeffrey, 150 Kittay, Eva, 164–65 Krishi Bank, 210 Kumar, Ashok, 51 labour: casual ‘home-workers’, 40; efficency rate and, 230–31; exploitation in markets and social relationships, 59–71, 76; gendered division of, 112, 157–59, 160–63; instrumentalization of, 23–25,

Index

33n20, 34n20; intimate, 119–35; of migrants, 159–60, 162, 164, 170, 171; and racial exploitation, 75–91; in sweatshops, 35–57; unequal bargaining power of, 15–34; women’s human rights and, 157–73 labour power, 18, 44, 45, 68, 80, 81 labour theory of value, 76 landlessness, 44–45 Lange, Lynda, 8 law: public support for, 29; unequal bargaining power and, 26–32 liberalism: choice and, 192n26; exploitation and, 76; gendered division of labour and, 162; political goals of, 28, 166; racial exploitation and, 77, 87, 90; welfare rights and, 82. See also transactional exploitation theory; Wertheimer, Alan libertarianism: defence of sweatshops, 36–37; example refuting, 37–38; perfect competitive markets and, 226, 232; political vs. non-political choices in, 32 Live-In Caregiver programme (Canada), 162, 171 Louie, Miriam Ching, 46, 51 MacPherson, C. B., 45 Mahoney, Jack, 51 markets, 59–71; vs. central planning, 30; competition for unproven medical interventions and, 248; hypothetical market price in, 107–8, 110, 223, 224, 225, 227–30, 247–48; legitimate exploitation in, 63–64; marketclearing rate in, 230; monopolies and, 248; moral context of, 61–70, 123; patents and, 248; perfectly competitive model, 17–18, 19, 20, 21, 22, 33n15, 226–32; vs. political relationships, 69–70; property rights and, 226; vulnerablility in, 5–6, 59–65, 68–70. See also bargaining; commodification; intimate labour; price gouging

283

marriage, 158, 160–61, 163 Marshall, Alfred, 18, 25, 31 Martin, Adrienne, 247–48, 249–50 Marxism: alienation of labour in, 122; Capital (Marx), 33n15; and class exploitation under capitalism, 68–71; criticism of, 15, 22, 35, 43, 46, 76–77, 78–79; Eurocentrism of, 86; exploitation described by, 43–44, 68–69, 70, 75–76; labour market analysis of, 22–23; labour power and, 18, 43, 44, 68, 80, 81; and moral case for socialism, 81–82; race in, 76–77, 81–82; and surplus labour, 43, 49, 55n59, 116n21; surplus value and, 35, 75, 80, 83, 225. See also structural exploitation theory Mayer, Robert, 41, 42 McIntosh, Peggy, 75 McKeown, Maeve, 5 medical tourism, 242–43 medicine. See unproven medical interventions Mexican Americans, 85 Meyers, Chris, 37–38 Meyers, Diana Tietjens, 164 microcredit. See credit; debt Miller, Richard, 5 Miller, Sarah Clark, 165, 167 Mills, Charles, 6 minimax relative concession, 224 minimum wage, 28, 42, 48, 231–32 Mohanty, Chandra Talpade, 51 monopolies, 248 morality. See ethics of care multiple sclerosis (MS), 243–44, 252 mutually beneficial exploitation: analysis of, 1, 146, 200, 223–25, 227, 237, 247; surrogacy as, 143; sweatshop labour as, 36–39 Nash, John, 224 native Americans, 85, 87, 92n15, 124–25 neo-liberalism, 102, 113–14, 161–62, 169

284 Index

Nepal, 110–11 NGOs, 203–4, 210–12 Nike, 51 Nozick, Robert, 32, 121 Nussbaum, Martha, 122 O’Hara, Sabine, 168 Okin, Susan, 160–61 oppression, 49–50 organ vending. See kidney sales Pande, Amrita, 100, 104, 107, 113–14, 142, 148, 149, 151 Panitch, Vida, 7, 99–100, 111, 112, 146, 150–51 Parry, Bronwyn, 146 partial entrustment, 10, 252–55 Pateman, Carole, 104, 122 patents, 248 patriarchy, 140–41, 158, 160–61, 170, 188 patronage, 204, 207–10, 215, 216 Pearson, Michael, 221, 236 Pearson, Ruth, 46–47, 48 pharmaceuticals. See price gouging Philippines, 196 Phillips, Anne, 6–7, 130, 131, 133 Pogge, Thomas, 167, 249 Poly Implants Prostheses (PIP), 184 post-Fordism, 43 poststructuralism, 77 poverty: as coercion, 164; and gendered division of labour, 160–63; in India, 125–26, 140, 144; kidney sellers and, 206–7; and sex work, 169–70; of surrogates, 99, 188; taking unfair advantage of, 106; and women migrants, 165. See also sweatshop labour Price, Dan, 230, 231 price gouging, 221–38, 247–48; antiexploitation norm and, 233–37; Arneson and, 234, 237; competitve markets and, 225–32; efficiency rate and, 230–31; Goodin and, 233–34; monopolies and, 248; patents and,

248; price caps and, 235–36; Turing Pharmaceuticals and, 221, 235; Valeant Pharmaceuticals and, 221, 235; Wertheimer and, 222–32. See also bargaining; markets property rights, 226, 232 racial exploitation, 75–95; vs. class exploitation, 79–84; consciousness of, 88; definition of, 80–81; ending of, 88–91; examples of, in U.S., 85–86; government fostering, 83; and historical concept of race, 79–80; ‘justifications’ for, 81; obstacles to ending, 91; social construction of race and, 78–79; sweatshop labour and, 47–48; synergistic effects of, 86–87; wealth gap and, 94n34 Radin, Margaret, 104–5 Rana Plaza factory collapse, 42 rate of profit, 33n15 rational bargaining theory, 224 Rawls, John, 28–29, 73n14 redistribution, 27–28, 88–89, 132 Reiman, Jeffrey, 44, 45 relationships. See social relationships Resnick, David, 144 Richardson, Henry S., 252 rights: human rights, 109–10, 124; property rights, 226, 232; womens’ rights, 157–75; workers’ rights, 37, 42, 170–72. See also specific headings, e.g., inequality, racial exploitation, sweatshop labour Robinson, Fiona, 167 Roediger, David, 84 Roemer, John, 23 Roldán, Martha, 47 Sample, Ruth, 9, 251 Sandel, Michael, 121, 132 Sanders, Bernie, 94n37 Satz, Deborah, 131 Schelling, Thomas, 224, 229 Scorse, Jason, 42 Seabrook, Jeremy, 44

Index

Sen, Amartya, 62 sex work: abuse in, 162; bargaining power in, 129–30; criminalization of, 124–25, 132; gendered division of labour and, 163; inequality and, 133; intimacy not sold in, 121; trafficking in, 162, 169–70; vs. women’s care work, 163–64, 169–70. See also intimate labour Shrkeli, Martin, 221, 236 Silvery, Rachel, 164 slavery, 77, 81, 85, 87, 122, 171, 174n10 Smith, Adam, 24 Snyder, Jeremy, 9–10, 38–40 social relationships: background injustice and, 5–6, 59–60, 70–71; examples illustrating, 59, 61, 62, 66–67, 69–70; exploitation in, 110; vs. market relationships, 66–67; moral obligations in, 65; wrongful advantage-taking in, 59, 60, 62, 64–65 Social Security Act (US), 86 social services, 159, 161–62 stem cells, 101, 243, 244, 248 structural exploitation theory, 43–50, 99–115; beauty and, 9, 186–89; commodification of surrogacy and, 7, 99–115; defined, 1–2, 35–36, 43, 49–50; feminist critique of, 43; gender inequality and, 7, 8–9, 35; hope and structural injustice in unproven medical interventions, 249–51; inadequacy of, 10–11, 42, 45; race ignored by, 6, 76–78; and structural inequality, 143, 144–47; sweatshop labour and, 5, 35–36, 40–50 structural injustice, 15–91, 139–52; consent and coercion in, 147–49; defined, 2, 41, 49; ethics of care and, 164; and hope, in unproven medical interventions, 247–49; inadequacy of theory, 147–52; Iris Marion Young on, 39, 41, 49, 144–45, 149; race and, 75–91; in surrogacy, 139–52;

285

sweatshop labour and, 35–52; unequal bargaining power and, 15–32 supply chains, 41–42, 48 surplus labour, 43, 49, 55n59, 116n21 surplus value, 22, 35, 75, 80, 83, 116n21, 225 surrogacy, 99–152; bargaining power in, 126–28, 129–30; benefits of, 105; childlessness and, 113; commodification vs. exploitation theories of, 99–115, 119–35; conditions for surrogates, 99, 101, 106, 125–26, 128, 141–42, 147–48; contracts for, 101–2, 104, 142, 150; female identity and, 104, 112; motives for, 101, 125–26, 140; as mutually beneficial exploitation, 143; personal experience of, 113, 114; restrictions on, 111, 140, 147; structural inequality in, 6–7, 8–9; unfair advantage in, 105–9; US and India contrasted, 125–26, 127; Western outlook on, 100, 148–50 Sustainability Development Goals (U.N.), 171, 172 sweatshop labour, 35–57; consent and coercion in, 43–5; duty of beneficence and, 39–40; as global structural exploitation, 43–50; health effects of, 46; libertarian defence of, 36–37; in nineteenth-century US, 46; predominance of women, 35, 46–47; race and, 47–48; stereotyping of women in, 46–48; structural exploitation theory and, 40–42, 50–51; transactional exploitation theory and, 37–39; ‘unskilled’ work in, 47. See also labour Syprine, 221 Szymanski, Al, 47 trafficking, 162, 169–70 transactional exploitation theory: beauty and, 9, 183–86; coercion and consent in, 8, 37–38, 55n56; commodification

286 Index

and, 7; consequentialism in, 39, 227, 232–38; defined, 1, 2; gender inequality and, 7, 162; inadequacy of, 9, 10–11, 40, 45, 76, 139, 149; injustice in, 2; in intimate labour, 126–28; non-ideal justice in, 135; racial exploitation ignored by, 6, 76–81; sweatshop labour and, 5, 37–39, 40, 50; and unproven medical interventions, 247–49. See also Wertheimer, Alan transfer payments (US), 85 transnational corporations, 39, 41–42, 49, 221, 235 Transnational Cycles (Jaggar), 173 Turing Pharmaceuticals, 221, 235 unions, 48, 51–52, 76 United States: average wealth in, 18; nineteenth-century sweatshops in, 46; racial exploitation in, 75–91; surrogacy in, 101, 102, 125–26, 127; transfer payments to blacks in, 85 Universal Declaration of Human Rights (U.N.), 109–10 universalism, 166, 167 unproven medical interventions, 241–59; clinical trials and, 243, 253, 255; definition of hope in, 241–42; desperate choices in, 9–10, 242–43, 246; duty of beneficence and, 241, 251, 255, 256; exploiting the ‘need’ for, 251–55; fraud and, 243–44; globalization and, 242–43, 256; informed consent and, 243–46, 254, 255; market for, 242–43; medical tourism and, 242–43; moral problems of, 243–46; partial entrustment and, 252–55; policy implications of, 255–56; and price gouging, 247–48; ‘right to try laws’ and, 242–43; structural exploitation and structural injustice in, 249–51; transactional exploitation in, 247–49 UNSNA (UN System of National Accounts), 168

UN System of National Accounts (UNSNA), 168 ‘untouchables’, 151 Valeant Pharmaceuticals International, 221, 235 venoplasty, 248 vulnerability: and body image, 185–86; in desperate choices, 188, 208, 249; economic, of workers, 23; genderstructured marriage and, 160; in India, 125–26; and informed consent, 183, 185–86, 245; in markets, 5–6, 59–65, 68–70; mutual, 110; in partial entrustment, 253; in social relationships, 60–67; theory of, 3–4, 187–88, 233–34, 241–42 wages: efficiency rate and, 230–31; market-clearing rate and, 230; minimum wage and, 28, 42, 48, 51, 231–32; negotiating, 51 Wagner Act (US), 86 Walzer, Michael, 123 Waring, Marilyn, 168 wealth, 18 Weir, Alison, 159 welfare state, 159, 161–62 Wertheimer, Alan: American racism overlooked by, 76; on bargaining, 26, 222–25, 228–30; definition of exploitation, 145, 200, 222–23, 245; hypothetical market price and, 107–8, 110, 128, 223, 225, 227–30, 247; ‘ideal’ market of, 127; on mutually beneficial exploitation, 1, 143, 146, 200, 223–25, 227, 237, 247; perfectly competitive markets and, 226–32; on structural injustice, 249; on unfair advantage, 106, 143–44; on wrongful exploitation, 222–25, 241 whites: appeal to, 90; black/white wealth gap and, 94n34; changing definition of, 84; exploitation of, 79; global supremacy of, 78; privileges

Index

of, 77, 84–86, 87–88; racial exploitation and, 75–91; struggle compared to blacks, 82; supremacy of central to U.S. capitalism, 84. See also racial exploitation Widdows, Heather, 8–9 Wilkinson, Stephen, 147 Wilson’s disease, 221 women: human rights of, 157–73; indigenous, 124–25; inequality of, 99–115, 139–52, 215; intimate labour of, 119–35; as majority in sweatshops, 35, 46–47; sex work and care work of, 157–73; stereotyping of, 47; surrogacy and, 99–115, 119–35, 139–52. See also specific headings, e.g., inequality, commodification, sweatshop labour women’s care work, 157–73; abuse in, 171; definition of, 165; ethics of care

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and, 164–67; feminist economics and, 167–69; gendered cycle of vulnerability in, 172–73; gendered division of labour and, 157–59, 162; global perspective on, 160–63; as low or unpaid labour, 160–61, 168, 169; migrants in, 159–60, 164; sex work and, 163–64, 169–70 Wood, Allen, 23, 105 worker ownership, 30 Young, Iris Marion: on domination and oppression, 49; on gendered division of labour, 161, 170; on structural exploitation, 1–2, 36, 249; on structural injustice, 39, 41, 49, 144–45, 149, 249 Zwolinski, Matt, 36–7, 40–41, 42, 235 Zymanski, Al, 47

About the Contributors

Monique Deveaux is Professor of Philosophy and Canada Research Chair in Ethics and Global Social Change at the University of Guelph. She is the author of Gender and Justice in Multicultural Liberal States (2006), Cultural Pluralism in Liberal and Democratic Thought (2000), and a co-editor of Reading Onora O’Neill (2013), Introduction to Social and Political Philosophy (2014), and Sexual Justice, Cultural Justice (2007). Des Gasper works at the International Institute of Social Studies in The Hague, a graduate school of international development at Erasmus University Rotterdam. He writes on development ethics, addressing such issues as displacement, violence, theories of equity and human rights, international aid and cooperation, and the capability approach. Select works include Development Ethics, with A. Lera St. Clair (2010), Gender, Migration and Social Justice (as co-editor, 2014), and The Ethics of Development (2004). Waheed Hussain is an Assistant Professor in Philosophy at the University of Toronto. He writes about the ethics of markets, focusing on the political dimensions of market interaction. Select publications include ‘Is Ethical Consumerism an Impermissible Form of Vigilantism?’ Philosophy and Public Affairs (2012); and ‘Corporations, Profit Maximization and the Personal Sphere’ Economics and Philosophy (2012). M. Shaiful Islam is an independent researcher and administrator in the Bangladesh Civil Service. He is a visiting lecturer and former faculty member of the Bangladesh Public Administration Training Centre. Select publications include ‘Capturing the Organization and Inner Logics of “Informal” food markets’, in LokProshashon Samayiki (2014); and ‘Inequity in Higher 289

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About the Contributors

Education Sector of Bangladesh: Bracing for Pragmatic Reforms’, Bangladesh Journal of Public Administration (2012). Lynda Lange is Professor Emerita of Philosophy at the University of Toronto. Her research interests include indigenous rights, global poverty, and global gender justice. Publications include Feminist Interpretations of JeanJacques Rousseau (2002); and ‘Dialogue, History, and Power: The Role of Truth’, in Philosophy and Aboriginal Rights, eds. S. Tomsons and L. Mayer (2013). Maeve McKeown is a Junior Research Fellow in Political Theory at St Hilda’s College, University of Oxford. She previously held a Post-doctoral Research Fellowship at Justitia Amplificata, Goethe University, prior to which she completed her PhD at University College London. Her research interests include Iris Marion Young’s ‘social connection model’ of responsibility, global justice, intersectional feminism, and reparations for historical injustice. Richard W. Miller is the Wyn and William Y. Hutchinson Professor in Ethics and Public Life at Cornell University. His many writings include Globalizing Justice: The Ethics of Poverty and Power (2010); ‘Beneficence, Duty and Distance’, Philosophy and Public Affiairs (2004) and Analyzing Marx (1984). His current project is The Ethics of Social Democracy. Charles Mills is a Distinguished Professor of Philosophy at the CUNY Graduate Center. He has published six books: The Racial Contract (1997), Blackness Visible: Essays on Philosophy and Race (1998), From Class to Race: Essays in White Marxism and Black Radicalism (2003), Contract and Domination (with Carole Pateman) (2007), Radical Theory, Caribbean Reality (2010), and Black Rights/White Wrongs: The Critique of Racial Liberalism (2017). Agomoni Ganguli Mitra is a bioethicist, currently Research Associate at the Edinburgh Law School. Her publications include ‘Vulnerability and Exploitation in a Globalized World’, W.N. Biller-Adorno, International Journal of Feminist Approaches to Bioethics (2013); ‘Offshoring Clinical Research: Exploitation and the Reciprocity Constraint’, Developing World Bioethics (2013); and ‘A Social Connection Model for International Clinical Research’, American Journal of Bioethics (2013). Vida Panitch is Associate Professor of Philosophy at Carleton University. Her work addresses ethical questions raised by so-called noxious markets,



About the Contributors

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specifically markets in bodily parts and labours. Her publications include ‘Global Surrogacy: Exploitation to Empowerment’, Journal of Global Ethics (2013); ‘Exploitation, Justice, and Parity in International Clinical Research’, Journal of Applied Philosophy (2013); and ‘Assisted Reproduction and Distributive Justice’, Bioethics (2015). Anne Phillips is the Graham Wallas Professor of Political Science at the London School of Economics and Political Science. She is best known as a feminist political theorist, and her many books include The Politics of the Human (2015); Our Bodies, Whose Property? (2013); Multiculturalism without Culture (2007); Which Equalities Matter? (1999), and The Politics of Presence (1995). Ruth Sample is Associate Professor of Philosophy at the University of New Hampshire. She is the author of Exploitation: What It Is and Why It’s Wrong (2003). Other works include ‘Exploitation and Consequentialism’, Southern Journal of Philosophy (2016), ‘Why Feminist Contractarianism’, Journal of Social Philosophy (2002), and ‘Sexual Exploitation and the Social Contract’, Canadian Journal of Philosophy (2003). Jeremy Snyder is an Associate Professor in the Faculty of Health Sciences at Simon Fraser University. He is a bioethicist and philosopher with a longstanding interest in exploitation, especially in low- and middle-income countries. His most recent research focuses on trade in health services, including ‘medical tourism’, health worker migration, and the use of crowdfunding for medical services. Heather Widdows is the John Ferguson Professor of Global Ethics at the University of Birmingham. She is the author of Global Ethics (2011) and The Connected Self (2013). Among other works she has coedited Women and Violence (2016), The Routledge Handbook of Global Ethics (2014), and Global Social Justice (2011). Currently she runs the Beauty Demands Network (http://beautydemands.blogspot.co.uk/).