How Far Do These Lessons Go?
Is this book’s account of how intimacy and economic transactions mingle an American contemporary story, the peculiar outcome of a money-driven U. S. culture? After all, it does focus on U. S. practices and law, most often during the past half-century. Certainly, the modern monetization of economic life has marked profound differences in our experiences of intimacy. Yet this book is most emphatically not just about the United States and not just about the recent past. Its broadest arguments apply across the world, wherever and whenever intimacy and economic transactions intersect. There has never been the sort of time that separate spheres enthusiasts dream about, where intimacy’s purity thrived uncontaminated by economic concerns.
Along the way, we have glimpsed the relevant American past, in such episodes as the caregiving experiences of Martha Ballard in eighteenth-century Maine, the domestic arrangements of Patsy and Samuel Miller in nineteenth-century Louisiana, and Leo Rosten’s flirtation with New York taxi dancer Mona during the 1930s. The relations, transactions, media, boundaries, and overall meanings of intimacy have changed through history and continue to change. But from the very start, couples, caring, and household organization have brought together economic activity and intimacy.
What about non-American experiences? We could reach out very widely, as far back as classical Athens. Athenians adopted a strangely familiar set of distinctions separating the women they called hetaera from other sex workers. Hetaeras were capricious, felt free to refuse prospective lovers, offered sexual liaisons to those suitors who pleased them, expecting seduction rather than bargaining. They also insisted on receiving gifts rather than quid pro quo payment: “He – taeras had a powerful interest in this game. Upon the fragile status of the gift depended their fragile status as ‘companions’ rather than common prostitutes” (Davidson 1998: 125). Clearly, the hetaeras distinguished themselves from other women who supplied Athenians with sex for money: “women who worked in brothels were registered and had to pay the pornikon telos, the whore-tax. Flute girls could charge no more than two drachmas a night and were forced to go with whomever the Astynomos [a public order board] allotted them” (124). For more than two millennia, then, people have been employing elaborate matrices of intimate relationships, taking great care to distinguish them, often using distinctive sorts of payment to mark crucial boundaries.
The lessons of this book also call up comparisons with the rest of the world in our own time. Just one example to make the point: French social scientist Florence Weber (2003) takes up the case of agricultural households, a well-studied site of intricate interaction between economic activity and family relations. Consider the legal arrangements of “deferred income” in which a child of an agricultural family eventually receives compensation for unpaid labor contributed to the farm’s increase in value. In France, agricultural deferred income has served as a model for the creation of similar arrangements in retail trade, crafts, and wives’ unpaid contributions to their husband’s professional success.
This sort of mingling likewise promoted the invention of the doctrine of “undue enrichment.” Much like undue influence, this French doctrine raises the question of whether the unpaid contributions of a child to the care of elderly parents establishes rightful claims to compensation from the parents’ estate. While some courts rejected such claims, declaring filial help a moral duty, in 1994 the country’s highest appeals court (Cour de Cassation) ruled in favor of compensating unpaid assistance that exceeded filial duty. The court reviewed the case of a man who took complete charge of his aging and ailing parents at the cost of his own career, thus enriching the family by saving the expense of a nursing home but impoverishing himself. The lower courts tried to defend something like a doctrine of separate spheres, but the higher court clearly ruled in favor of an appropriate match between compensation and intimacy. What is more, they actually set legal limits on the obligations of filial piety.
Both in the United States and elsewhere, the analysis of the law provides a triple lesson. First, systems of law have their own inbuilt conventions, doctrines, and traditions. We have just seen that France, as a civil law country, treats the purchase of intimacy in somewhat different terms from the United States, a country of common law. Second, the law evolves through contestation and adaptation. Weber displays the adaptation of French civil law through expansion of the agricultural model. In the U. S. case, earlier chapters have traced the remarkable evolution of coverture and consortium as doctrines applying to coupling and household intimacy. Third, all legal systems interact with ordinary practices in their areas of application. Weber, for instance, analyzes the response of French courts to changes in French household economies. On the American side, of course, we have seen this sort of interaction abundantly.
As much as it has explored legal territory, this book has not attempted to survey, much less to exhaust, the full range of legal debates in its area. For example, a legal scholar crossing the same terrain might very well take up questions of child support, alimony, foster care and adoption, or surrogacy and the sale of female eggs for reproduction. Others might analyze the practical impact of law on intimate economic practices, such as legalization of gay marriage or the parental rights of unwed fathers. Only occasionally, furthermore, has this study moved into the large adjacent territory in which both practices and the law limit the unwanted presence of intimacy in settings that are presumably impersonal, such as corporations, schools, and professional services. In these settings, indeed, we often see what we might call reverse hostile worlds reasoning: the presence of intimacy, in this view, corrupts proper standards, as exemplified by cronyism, nepotism, insider trading, and sexual harassment. Nor does the book provide analyses of the legal profession or legal institutions as social phenomena. It does, however, treat legal action—in this case especially litigation—as a social process, focusing on its interaction with routine practices outside the legal arena. Some of our most impressive findings concern that interaction, for example, in the ways that legal actors must recast practices they advocate in order to make them fit existing law.