I am in the process of selecting a theoretical model on which to base my normative analysis. Below, I explain my preliminary attraction to Radin's construction of partial inalienability and the pragmatic method of resolving tensions between conflicting interests. As always, comments are greatly appreciated.
Thesis: in choosing whether to apply any law in a virtual context, we ought sometimes to put aside a general law rule in favour of internal norms.
The project of this research is to provide a mechanism to assist in identifying conflicting and hidden interests in virtual communities, and to develop a framework for reconciling those interests in law. The first goal is to be achieved through a critical examination of the expectations of actors in virtual communities – the participants, the platform provider, the broader public, and the state. The second goal, building a normative framework, will depend upon a solid pragmatic reconstruction of the conflicting interests.
There is no simple mechanical way for states to make a decision about which interests should prevail in any particular circumstance. These decisions are always political decisions. The aim of this model, then, is to provide a framework to make these decisions in full awareness of their consequences. The normative basis that will be used for preferring one interest over any other will be the overriding presumption that we ought to choose the path which most promotes “our best current understanding of the concept of human flourishing.”1)
After we have identified the internal norms of a virtual community, the biggest question is whether to uphold those norms which conflict with general law principles. In determining this question, we must consider which of these principles are modifiable and which are not – which basic entitlements are alienable and which entitlements may not be transferred. This analysis, however, leads us to a false dichotomy – it is more appropriate to consider these principles along a spectrum of alienability, where some entitlements may be given away or sold in certain circumstances but not others. Margaret Jane Radin's theory of partial market-inalienability provides a model of this spectrum, and provides some justifications for preferring a degree of alienability or inalienability based upon the interests of personhood.
A market-based analysis is appropriate because it addresses the concerns which are now emerging with large-scale virtual communities that are created as commercial ventures but which enable many aspects of personal life – including, but not limited to, personal relationships, personal identification, personal property, speech and communication. A key concern in these cases is what impact the commodification of these interests has on the personhood of the participants. A framework of partial inalienability provides the means for evaluating these tensions and partially protecting some personality interests from commodification, while recognising that the market is currently best positioned to provide the virtual communities upon which those personality interests depend.
The spectrum of market-alienability ranges from complete market-inalienability to complete commodification. Some examples of market-inalienable interests include freedom, body parts, and children – one is not allowed to sell any of these in any circumstances, although they are not strictly inalienable in that they can each be given away. On the other hand, goods which are wholly commodified are, in the eyes of the law, completely substitutable for one another and for their monetary value. In between these two extremes, we place limits on the alienation of interests which are only partly inalienable. For instance, labour is only partially commodified, as we place limits on the minimum wage and the ability of employers to terminate employment contracts.2) In another sense, we place limits on the mechanics of transfers – imposing, for example, a requirement that transfers of real property be in writing.
In addition, there are interests which are fully inalienable – for example, the law will not uphold a person's right to consent to grievous bodily harm or murder, whether for a fee or not (although, in the context of euthanasia, this becomes a partial inalienability, where we can envisage scenarios where it may be permitted to consent to what would otherwise be an unlawful killing).
The crucial insight, for our purposes, is that a spectrum of alienability allows us to place limits on the manner in which certain entitlements may be given away or sold which are appropriate to the circumstances. We have certain limits built in to the law as it currently stands – conceptions of consent, consideration, acquiescence, waiver, reasonableness – which act to restrain the alienation of entitlements. A model with a spectrum of inalienability allows us to know when these limiting concepts should be interpreted strictly, and when we should deal with them more summarily. For example, this means that when we are considering whether a participant has consented to potential harassment or assault, we may hold a much higher standard of consent than when we are considering whether a person has consented to the 'theft' of a piece of virtual property within the rules of a game. This model shows that more value we place on the importance of insulating the interest from commodification, the greater the limits we can justifiably place upon the alienation of that interest. In accordance with this model, the riskier we determine a transfer is, the more caution we should exercise before finding that the transfer has, in fact, occurred.
The model also provides a scheme for identifying where the protections given by existing law do not suffice. Various concepts of consent can be used to provide adequate limits in many civil matters – disputes centred in contract, tort, and many statutory entitlements can be resolved by determining whether the interest has been transferred according to the norms of the virtual community. Greater difficulty arises where we determine that a certain interest should be protected, to some extent, from commodification, but there is no direct mechanism in the existing law to effect that protection. For example, we may agree on the partial inalienability of interests of free speech or due process, but while these rights may be protected to some extent against the state, they are not inalienable against private actors. If we determine that our conception of human flourishing requires some recognition of constitutional rights against private actors, the model we develop can be used to identify where these interests are not sufficiently protected from commodification. Once identified, a gap between our conception of inalienability and the protection we afford the interest will justify a change in the law.
This model does not aim provide a comprehensive empirical framework; the evaluation of the degree to which any given interest should be protected from commodification is not one which can be arrived at in isolation from a broader social discourse. Rather, the goal of this project is to provide the tools to enable this social discourse. The resolution of conflicting interests must be a continuing process, a pragmatic evaluation of what is possible and what is the best method to proceed given the current state of society. By exposing hidden interests and proposing a method of resolution which is dependent on our social goals, this project aims to provide a conceptualisation of how we can progress, rather than an imperative on how we must.