A. Exchange value: Marx and the commodity fetish

Though Karl Marx never used the word ‘commodification’, his theory has a totemic status for the later thinkers who developed the concept. The commodity form is central to Marx’s Capital, which took aim at bourgeois economics as contemporaneously articulated; that is, in terms of Adam Smith’s labour theory of value. Building off John Locke’s philosophy of property,^{Footnote 32} Adam Smith asserted that the defining feature of the commodity is that it is the product of labour. Simply put, it is labour that determines the exchange value of commodities in the market.^{Footnote 33} Since bourgeois political economists were, in Marx’s estimation, blinded by the historically exceptional predominance of the mechanism of exchange characteristic of the period of manufacture,^{Footnote 34} Marx identifies the commodity as ‘the economic cell-form’ of ‘bourgeois society’.^{Footnote 35} He also sees in the commodity the secret to capitalism’s peculiar means of concealing the true nature of social relations.^{Footnote 36} The value of human activity and ingenuity is measured in purely quantitative terms, as the amount of ‘[s]ocially necessary labour-time’ that is ‘congealed’ in a given commodity during the production process.^{Footnote 37} Through the market mechanism, ‘the definite social relation between men themselves’ thus takes on ‘the fantastic form of a relation between things’.^{Footnote 38} Marx calls this phenomenon the ‘fetishism’ of the commodity.^{Footnote 39} Commodities function as ‘social hieroglyphs’,^{Footnote 40} standing in for the concrete realities of labour relations in the market transactions that mediate our social ordering operations.

Commodities do not tell the whole story though. Rather, they obscure the true nature of social relations behind a veil of commensurability.^{Footnote 41} In his commentaries on Marx’s work, David Harvey aptly illustrates this through the example of purchasing lettuce at a supermarket.^{Footnote 42} The transaction that occurs at the checkout facilitates a social relation between you as the consumer of lettuce (and as the labourer whose value-creating efforts are embodied in the money you use to buy it) and the labourers who contributed to the production of the lettuce. Setting aside any advertising puffery and industry group certifications on the packaging,^{Footnote 43} however, ‘[t]he lettuces are mute, as it were, as to how they were produced and who produced them’.^{Footnote 44} In other words, your purchase teaches you nothing about the actual real-life labour relations that it structures and propagates. Therefore, the more commodity exchange comes to dominate economic activity, the more we make collective decisions about how we produce things through the distributed decision-making of private individuals who have almost none of the relevant information for doing so at their disposal.

B. Production for sale: Polanyi and fictitious commodities

Another influential figure of the early commodification discourse – who likewise never used the term himself^{Footnote 45} – is Karl Polanyi. Polanyi’s work departs from Marx’s framework because, by 1944, a different strain of mainstream economic thought had emerged. During the decade after the publication of Capital, the field of political economy embarked upon a process of transition from a primary focus on productive labour to one of utilitarian satisfaction through consumption. This change of orientation accounts for how Polanyi’s ‘empirically defines’ the commodity: ‘objects produced for sale on the market’.^{Footnote 46} Key to this definition is that it allows for the possibility that something can be available for purchase without being, for that sole reason, considered a commodity. Such items he refers to as ‘fictitious commodities’, and he posits that there are three with enormous consequences on social ordering: land; labour, and money.^{Footnote 47} What unites these is that there are very significant impediments to any production process calibrating their supply in accordance with the price mechanism. Beyond a certain point, it becomes extremely difficult to produce more of these properties to satisfy the ultimately insatiable demand for them. Efforts to do so would: in the case of land, deplete exhaustible natural resources^{Footnote 48}; in the case of labour, degrade the dignity of human life^{Footnote 49}; and in the case of money, cause financial crises.^{Footnote 50}

Polanyi’s theorisation of fictitious commodities is part of his broader point about the self-defeating ‘endeavor of economic liberalism to set up a self-regulating market system’.^{Footnote 51} Universal commodification means that the economy is no longer ‘embedded in social relations’.^{Footnote 52} However, disembedding markets simply does not work. It tends towards such calamitous catastrophe that the capitalists themselves begin calling for various forms of regulation to contain the system’s volatility. This leads the development of capitalism to take the form of a ‘double movement’, in which the constant drive to expand market society stands in dialectic relation with the constant need to safeguard humanity from being destroyed in the process.

C. Liberty, utility, and human flourishing: Beyond materialist and critical theory

As emphasised at the outset of this piece, views on commodification are inextricably linked to their moral and political philosophical underpinnings.^{Footnote 53} Three of the main theoretical strands contending for dominance in the contemporary discourse are liberalism, communitarianism, and utilitarianism.^{Footnote 54} All of these share the goal of keeping only certain categories of goods away from markets. The rest of this section builds upon each of these accounts.

One of the most influential illustrations of liberal commodification theory is John Rawls’ notion of (social) primary goods. The key social primary goods are rights, liberties, powers, opportunities, income and wealth. These are to be distributed across society according to two principles of justice. The first principle applies to basic rights and liberties (such as freedom of conscience, the right to vote, and freedom of speech): ‘Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all’.^{Footnote 55} The second principle governs distribution of opportunities, income and wealth: ‘Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity’.^{Footnote 56} The first and the second principles are to be taken in lexicographical order.^{Footnote 57} Individuals cannot improve their economic position by relinquishing their rights to equal citizenship and opportunities.^{Footnote 58} It follows that commodification processes should not affect the basic rights and liberties.

Resisting the marketisation of specific categories of goods is not solely a concern of liberal theorists. Elizabeth Anderson argues, along communitarian and pragmatist lines, that non-economic goods, such as personal relationships, as well as political goods should be placed outside the bounds of markets.^{Footnote 59} By the same token, Michael Walzer asserts that there are distinct ‘spheres of justice’ that correspond to specific types of social goods (eg political power, commodities, security), and each responds to its own set of distributive principles. When a good (or its distributional principles) pertaining to one sphere impinges on another, socially unjust outcomes ensue. The most striking illustration is the expansion of the sphere of money and commodities into other domains of justice. It is therefore crucial to preserve the integrity of spheres by ‘blocking exchanges’ between them and setting ‘no-goes’ for commodification.^{Footnote 60} It is imperative to curb the power of wealth and ban the use of money with respect to certain subjects, such as human beings, political power, criminal justice, and freedom of conscience.^{Footnote 61}

Margaret Jane Radin also falls into the communitarian camp.^{Footnote 62} In her 1996 classic Contested Commodities, she advances a ‘broad understanding of commodification’ – one that explicitly includes ‘market rhetoric’, which she defines as ‘the practice of thinking about interactions as if they were sale transactions’.^{Footnote 63} Starting with her 1987 Article Market-Inalienability, she has espoused a critique of commodification that rejects both liberalism and economic analysis.^{Footnote 64} Her main preoccupation is rather to preserve the inviolability of personhood from encroachment by market forces. Accordingly, her critique of commodification targets those ‘particulars’ that she deems ‘integral to the self’ – things like ‘one’s politics, work, religion, family, love, sexuality, friendships, altruism, experiences, wisdom, moral commitments, character, and personal attributes’.^{Footnote 65} Commodifying these particulars impedes her thick conception of ‘human flourishing’, which goes beyond the demands of liberal views.^{Footnote 66} Though she acknowledges that the precise scope of what must be shielded from market forces in order for a given individual to flourish is somewhat subjective, she denies that it is entirely so, which means that crusaders of decommodification must engage in some degree of ‘moral judgement’ to determine which elements of identity are socially ‘justifiable’.^{Footnote 67}

Other non-materialist critiques of commodification draw from economic theory. A prominent voice in this discourse is Guido Calabresi, whose welfarist pedigree makes him loath to challenge market ordering arrangements.^{Footnote 68} Key to his account is the special institutional treatment of what he calls ‘merit goods’. These come in two types. The first consists of goods that people frequently do not desire to have subjected to pricing mechanisms, those things ‘whose pricing…causes a diminution in utility for a significant group of people’.^{Footnote 69} These are ‘pearls beyond price…whose commodification is in itself costly’.^{Footnote 70} The paradigmatic example is human life.^{Footnote 71} The second category, by contrast, is not categorically unsuited for commodification. Assigning a market value to these goods is not inherently costly, but most people consider their (unequal) distribution based on economic conditions highly unwelcome.^{Footnote 72} The rights to have children, obtain various body parts, or access some level of education or healthcare are some examples.^{Footnote 73} Along institutionalist lines, Brett Frischmann’s understanding of infrastructure can also be recast as an economic critique of commodification.^{Footnote 74} Drawing on commons-based governance theories, he understands (traditional) infrastructures (such as railway systems and motorways) as ‘shared means to many ends’ that generate positive externalities across society and are managed in an openly accessible fashion.^{Footnote 75} Thus, state actors, instead of private players, are frequently the most suitable candidates for governing these infrastructures.^{Footnote 76}

D. Towards a unified theory of commodification

Each of these theoretical frameworks has their respective strengths and weaknesses. Of course, this assessment ultimately depends on the normative preferences to which one adheres. Marxist commodification theory has the advantage of centering the dehumanising tendencies of commodity exchange, connecting the concept to important modern ills such as alienation and the disregard of subaltern groups. Then again, it provides little scope for advancing decommodification within capitalism, with remedies tending towards the revolutionary rather than the incremental. Polanyi provides more optionality in this respect by pinpointing a subset of particularly problematic commodities, as well supplying some faith in society’s capacity to guard itself against capitalism’s most extreme excesses – though the precise balance to be struck remains torturously elusive. Liberal theorists have also struggled with this balance, advancing a variety of proposals whose persuasiveness depends entirely on the degree to which one shares their underlying philosophical perspective. Perhaps, however, this is entirely the point. The proper scope of commodity exchange in society cannot be determined without reference to the shared values of the community in question. From this perspective, primary concern shifts away from the precise contours of market structures and onto the legal processes by which these boundaries are determined. How does our society decide whose philosophies shape our markets?

A. Commodity rights: Marxist critiques of the EU

To be sure, it would be misguided to speak of a ‘Marxist critique’ of the EU, for multiple competing Marxist frameworks have been put forward.^{Footnote 77} Still, if anything unites these varying accounts, argues Eva Nanopoulos, it is the perspective ‘that Europe’s peace project was fundamentally a class project and that EU law was from the outset tied inextricably to the production of capitalist social relations’.^{Footnote 78} In a few cases, this critique has been expressly couched in the terms of commodification. For instance, as a graduate student in the late 1990s, Gustav Peebles advanced the view that EU law ‘revolve[s] around the rights of things (commodities) and not people’, because rights protection ‘only extends to people who can show their relationship to the circulation or production of commodities’.^{Footnote 79} Through this lens, EU law emerges as a source of deepening inequality, as legal status is not equal for all Europeans, with some enjoying greater privileges than others by virtue of their superior ‘market worth’ (or ‘exchange value’).^{Footnote 80}

Nanopoulos, for her part, picks up on Evgeny Pashukanis’s ‘commodity-form theory of law’, emphasising the EU’s significance in establishing individuals alongside sovereign states as subjects of international law.^{Footnote 81} Pashukanis likens the law to commodity exchange in that it is the product of contractual relations between ‘abstract and formally equal legal subjects’.^{Footnote 82} He argues that the law, like commodities, has a fetishistic quality, concealing the ‘unseen abstract client’ behind an ‘endless chain of arguments’.^{Footnote 83} More than anything, however, Pashukanis’s perspective might help explain why there is perhaps less Marxist criticism of EU law than one might expect. Adopting Marx’s view of law as a ‘superstructure’,^{Footnote 84} he views the legal system as the product of ‘the individualization and opposition of interests’ that emerges from commodity exchange.^{Footnote 85} For Nanopoulos, the EU itself stands in stark contradiction to this conception, illustrating how the economic base and the legal and political superstructure are in fact ‘indissociable elements of a complex and mutually constitutive totality’.^{Footnote 86} Her perspective is in keeping with increasing scholarly attention to the significance of law in capitalist processes like commodification, which open up new pathways to critical reappraisal of legal institutions like the EU in this context.

B. Double movement or double-edged sword? Polanyian perspectives on social protection

There has been no shortage of Polanyian perspectives on the EU political project. However, perhaps in keeping with the dialectical nature of the ‘double movement’ dynamic, these analyses have yielded diametrically opposing findings. As Maja Savevska observed in 2014, some depict the EU as a disembedding force for ‘intensified marketisation’, while others see it as a re-embedding influence through its increasing orientation towards ‘social and environmental protection’.^{Footnote 87} Christian Joerges observes a similar dialectic in a recent Article published in this journal,^{Footnote 88} where he specifically contrasts the viewpoints of American political scientists James A. Caposaro and Sidney Tarrow, on the one hand, with the work of Fritz W. Scharpf and his colleagues at the Max Planck Institute in Cologne, on the other. The former camp heralds the jurisprudence of the Court of Justice of the EU as an example of ‘embedded liberalism’, ensuring that social considerations are woven inextricably into economic processes.^{Footnote 89} The latter argues instead that a ‘political decoupling of economic integration and social-protection issues’ has ‘allowed economic-policy discourses to frame the European agenda exclusively in terms of market integration and liberalization’ and ‘ensured the privileged access of economic interests to European policy processes’.^{Footnote 90}

Savevska aligns herself with the latter camp, criticising ‘the creation of the Single Market’ as having ‘reified the neoliberal creed’.^{Footnote 91} Rather than focus on its influence on the scale of markets in Polanyi’s three fictitious commodities, she expands his framework by arguing that the EU has helped establish a market for a new fictitious commodity – ‘social protection’, which is increasingly evaluated through the lens of ‘its monetary utility’.^{Footnote 92} Thus, even in those areas where other scholars have seen the EU as a re-embedding influence, Savevska sees the further proliferation of the commodity form in so-called ‘market-inhibiting policies’ like emissions trading that, ironically, ‘increasingly rely on the use of market solutions’.^{Footnote 93}

Joerges, for his part, proceeds more diplomatically. His main point is simply that ‘European legal scholarship should become aware of Karl Polanyi’,^{Footnote 94} a cause taken up by at least some of the contributors to this symposium. For Joerges, European integration presents a ‘challenging example’ from the Polanyian perspective.^{Footnote 95} While he rejects the ‘Caporaso/Tarrow thesis’ as ‘not plausible’, he nonetheless acknowledges that it contains ‘more than a kernel of truth’.^{Footnote 96} By the same token, he shies away also from the polemics of Scharpf and company, who he argues underestimate the complexity and mixed character of true Polanyian countermovements.^{Footnote 97} Forging a middle way, Joerges effectively argues that both sides can be right (and wrong) at the same time; that European social regulation does ensure that non-economic issues are considered the policy-making process, but that this is achieved by shifting debates about social protections to a policy-making setting where they are subsumed within processes geared towards achieving economic efficiency.^{Footnote 98}

While Joerges’s analysis relies explicitly on the theories of Giandomenico Majone,^{Footnote 99} it also echoes more recent ideas advanced by commentators such as Marija Bartl, who has criticised how the narrowly focused range of legislative actions has relegated the EU law-making to an essentially technocratic, apolitical process, leaving little room for democratic deliberation.^{Footnote 100} The prevailing neoliberal ideology reduces the objective of internal market integration to the sole pursuit of economic growth and market building across the vast spectrum of the EU competences. Article 114 of the Treaty of the Functioning of the European Union (TFEU), the legal basis that enables the EU to legislate to harmonise and facilitate the internal market, has played a prominent role in shaping not only all economic aspects, but also ‘welfare states, culture and legal systems’.^{Footnote 101} All of this points to a gradual disembedding of the EU market economy from the socio-political sphere, even as social protections become more a part of the EU legislative agenda.

C. Deficit and demoralisation: fragments from the liberal and the welfarist discourses

A few liberal commodification theorists have also opined on the EU project. Perhaps more surprisingly, they also offer divergent perspectives on these issues. Radin, for her part, has highlighted the benefits of the EU’s consumer protection regime in her work on standard form contracts, pointing out that ‘[t]he clauses that concern [her] most…cannot be used against consumers in the European Union’.^{Footnote 102} Rawls, by contrast, warned as early as 1998 that the establishment of the European Single Market was rapidly leading to a society flooded with a meaningless form of consumerism.^{Footnote 103} His main prescription was that the distribution of basic liberties and rights should take precedence over economic advantages.^{Footnote 104} From his perspective, by the late 1990s the internal market narrative had begun to overshadow the other core foundational elements of the EU. Today, his theory of justice continues to influence conversations around the ‘EU’s justice deficit’. As Dimitry Kochenov and others have argued, although Article 3 of the TFEU mentions ‘social justice’ (merely) as an aspiration, the legal and political developments of the European Union have failed to advance any substantial vision of justice that goes beyond the economic objectives of the market integration project.^{Footnote 105}

For Calabresi, it seems, the problem for contemporary Europe is precisely the opposite: economic considerations need to be insulated even further from their attendant socio-cultural implications. In 2016, he co-authored an Article on federalism and moral disagreement which, after noting the rise of North-South tensions over the Eurozone crisis, argued that the EU’s survival may depend on whether Europe’s ‘economic differences’ can be ‘demoralized’.^{Footnote 106} A Kantian might be tempted to interpret this as a synonym for ‘re-commodified’.

D. Commodification and European integration: a rough synthesis

Calabresi appears to be an outlier in the discourse on commodification and European integration. He is certainly not the only commentator that sees the EU as a potential force for good in calibrating the scope of commodity markets. However, he cuts decidedly against the grain in believing this is so on account of its capacity for prioritising economic priorities over other competing social concerns. Again, he is not the only one who believes the EU may harbour biases in this direction; he is merely the only one who seems to think this is largely a good thing. Generally speaking, bringing the commodification lens to bear on the institutions of the EU tends to encourage an awareness of the ways in which the market-orientation of its fundamental freedoms and the technocratic nature of its policy process tend to privilege economic interests, including expanding commodity markets. This can easily lead to a degree of scepticism with respect to the European project, but it does not necessarily mean that the EU is some great catastrophe of commodification. There are other impulses at play, awareness of which is particularly keen among those of a Polanyian persuasion, who evaluate every new EU social protection initiative as potential evidence of a double movement (but are not always impressed). In this way, perhaps contrary to what one might expect, the commodification lens by and large brings balance and nuance, not mere demagoguery, to the EU law debate.