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Law for SaleA Philosophical Critique of Regulatory Competition$
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Johanna Stark

Print publication date: 2019

Print ISBN-13: 9780198839491

Published to Oxford Scholarship Online: April 2019

DOI: 10.1093/oso/9780198839491.001.0001

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Law as a Contested Commodity

Law as a Contested Commodity

(p.125) 5 Law as a Contested Commodity
Law for Sale

Johanna Stark

Oxford University Press

Several types of philosophical arguments have been offered as to why some things should not, or cannot, consistently be bought and sold, such as human organs, Nobel Prizes, or democratic votes. Starting from the debate about so-called ‘contested commodities’, this chapter deals with the commodification of law itself and discusses whether philosophical criticism regarding the commodification of certain types of goods and practices is applicable in the context of law as a product as well. The argument’s starting point is that regulatory competition leads to the law being perceived as a commodity that is subject to the market mechanism. It proceeds with a discussion of the premise that the market mechanism comes with its own kind of valuation, with the price mechanism serving as the primary indicator of value. Criticism of commodification and commercialization is often based on the perception that market valuation tends to be dominant over other evaluative standards, sometimes ‘crowding out’ considerations that cannot be directly translated into market vocabulary. Under conditions of regulatory competition, there is a case to be made that some of the normative considerations, the values and principles that underlie legal rules would in case of conflict be ‘crowded out’ by the imperatives of success in a global law market.

Keywords:   Regulatory competition, law market, law as a product, commodification, market mechanism, commercialization, contested commodities, crowding out

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