Hildegard Lee Borelli and Michael J. Borelli were married in 1980. Three years later, as Michael’s health began to falter, he went to the hospital repeatedly with heart trouble. In 1988, after he suffered a stroke, Michael’s doctors recommended round-the-clock institutional care. But Michael resisted the move. Instead, he promised his wife that if she cared for him at home, at his death he would leave her a large share of his estate. He did not keep the promise. The following year, after Michael’s death, Hildegard discovered he had bequeathed the bulk of his estate to Grace Brusseau, his daughter by an earlier marriage. Her legal appeals for enforcement of the marital promise failed.
In a 1993 decision, the California Court of Appeals turned down Hildegard’s claims. The decision became notorious among feminist legal scholars (see, for example, Siegel 1994; Williams 2000). Severely condemning the Borellis’ “sickbed bargaining,” the court ruled that, as Michael’s wife, Hildegard owed him nursing care free of charge and therefore had no right to ask compensation for her efforts (Borelli v. Brusseau 16 Cal. Rptr. 2d 16, 20 (Cal. Ct. App. 1993)). A dissenting judge vigorously disagreed with the implication that Hildegard “had a preexisting.. . nondelegable duty to clean the bedpans herself” (20). The judge commented that in this day and age spouses should have every right to contract with each other for services and their compensation. After all, Hildegard could easily
have hired commercial help for the day-to-day drudgery of caring for an invalid, but responded to her husband’s promise by doing it herself. The court’s majority, however, rejected that view:
The dissent maintains that mores have changed to the point that spouses can be treated just like any other parties haggling at arm’s length. Whether or not the modern marriage has become like a business… it continues to be defined by statute as a personal relationship of mutual support. Thus, even if few things are left that cannot command a price, marital support remains one of them. (16)
Both sides of the Borelli v. Brusseau court decision impale themselves on the horns of hostile worlds/nothing-but reasoning. One horn declares that marriage must remain sacred, insulated from commercial transactions; the other horn announces that marriage is a commercial transaction. Both sides thus fail to recognize one of this book’s most important revelations: that every relationship of coupling, caring, and household membership repeatedly mingles economic transactions and intimacy, usually without contamination, yet relations of coupling, caring, and household membership operate differently from other relationships. As long as we cling to the idea of hostile worlds we will never recognize, much less explain, the pervasive intertwining of economic activity and intimacy. Yet nothing-but reductionism fails to allow for the distinctive properties of coupling, caring, and households. The prominence of intimacy in those social relations transforms the character and consequences of economic activity within them. The question, therefore, is not whether intimate partners can or should engage in economic transactions but what sorts of economic transactions match which intimate relations. In contrast to hostile worlds and nothing-but understandings, this book has forwarded a connected lives view: in all social settings, intimate and impersonal alike, social ties and economic transactions mingle, as human beings perform relational work by matching their personal ties and economic activity.
By no means do all matches work well. Some properly excite indignation, or at least generate surprise. Guy de Maupassant invented a story illustrating precisely this point. His nineteenth-century fiction In the Bedroom (Au bord du lit) tells the tale of the Comte de Sallure, who once had dallied with various mistresses, offering the women “money, jewels, suppers, dinners, theatres.” After ignoring his wife for some time, Sallure suddenly developed a renewed and powerful infatuation for the Comtesse. The newly smitten Sallure became jealous of his estranged wife’s many admirers. One evening, returning home from a reception, Sallure resolved to seduce her by declaring his reborn passion. After reminding her husband of his infidelities and his earlier claims that “marriage between two intelligent people was just a partnership,” the Countess agreed to rekindle their relationship, but at a price. Sallure would have to pay her five thousand monthly francs, approximately what he had spent on each of his mistresses. When the husband protested “that the idea of a man paying for his wife is stupid,” the Countess explained the bargain: “Well, you want me. You can’t marry me because we are already married. So why shouldn’t you buy me? . .. Instead of going to some slut who would just squander it, your money will stay here, in your own home…. By putting a price on our lawful love you’ll give it a new value. .. the spice of wickedness” (Maupassant  1971: 215-16).
Sallure relented, tossing her his wallet with the francs inside, asking only that his wife “not make a habit of it.” The Comtesse insisted on her terms, adding that “if you’re satisfied… I’ll ask for a raise” (216). Maupassant caught the incongruity of a quid pro quo contract—sex for money—in the marriage of his time. The point was not that spouses never passed money from hand to hand in nineteenth-century French households. It was that the terms of the proposed contract blurred existing boundaries between prostitution and marriage. By negotiating medium, transaction, and boundary, the aristocratic couple were defining the content and conditions of their relationship.
As this book’s complicated journey began, we set out to seek answers for three big questions:
1. Under what conditions, how, and with what consequences do people combine economic transactions with intimate relations?
2. Why and how do they erect complicated stories and practices for different situations that mingle economic transactions and intimacy?
3. How does the American legal system—attorneys, courts, judges, juries, and legal theorists—negotiate the coexistence of economic claims and intimate relations?
The pursuit of the answers through an analysis of coupling, caring, and households has taken us into worlds full of adventure. We have seen, for example, men and women announcing themselves as committed to marriage by purchasing an expensive ring, and have then observed courts facing a complex problem when those engaged couples break up and go to law. Of assets transferred during the engagement, including the ring, which now belongs to whom? (In this instance the courts commonly deploy the exotic doctrine of “conditional gifts.”) With regard to caring relations, we have noted family members delivering medical care to ailing kin but have also watched courts adjudicate whether that care qualified the caregiver for compensation after the ailing person’s death. And—even more surprising—whether the care constituted “undue influence” over the bequest of the recently departed. Households have presented even greater complexity. For example, awards to survivors of 9/11 victims raised the knotty question of compensation for the victim’s unpaid household work, just as within intact households who owes what unpaid services recurrently becomes a matter of negotiation and dispute. (In the victim compensation cases, we see lawyers debating the “labor component of supplemental purchased services.”) Our first question—how, when, and with what consequences people mingle intimacy and economic activity—therefore receives a double answer: economic activity is integral and essential to a wide range of intimate relations, but the presence of intimacy endows the
economic activity with special significance. Economic practices such as major purchases, household budgets, provision of health care, and ceremonial gifts engage participants in selecting appropriate media for payment, matching that media with transactions, assigning meaning to their relationships, and marking boundaries that separate intimate relationships from other relationships with which they might easily and dangerously be confused.
Why, then, do participants in intimate relationships create elaborate stories and practices for situations that mingle economic activity and intimacy? For essentially the same reasons. Within households, for example, every bargain struck has significance both for the transaction at hand and for longer-term relations among household members. To the extent that household members have spun a web of reciprocity, a community of fate, and a set of obligations to mutual, collective protection, confusing household interaction with routine market transactions would, indeed, signal a threat to household viability. There lies the truth in the otherwise defective doctrines of separate spheres and hostile worlds: although they teem with economic activity and often involve their members extensively in market transactions, zones of intimacy operate according to different rules from other sorts of organization.
Different rules? What exactly have we learned about the distinctive properties of intimate settings? First, a resounding negative conclusion: intimate settings do not stand out from others by the absence of economic activity. Nor do they lack connection with the commercial world. On the contrary, coupling, caring, and households entail extensive production, consumption, distribution, and transfer of assets. None of these intimate interactions would long survive without their economic component. We must, however, maintain the distinction between intimate ties and intimate settings. Intimate ties include all those in which at least one party obtains information or attention that if widely available would damage one or both of the parties. Intimate ties occur in a wide range of settings, including some that are predominantly impersonal in character. We have seen intimate ties appearing in professional-client relations and within commercial firms. Indeed, the reverse hostile worlds doc
trine—that intimacy corrupts rationality—arises especially in just such settings. But in some settings intimate ties prevail.
Intimate settings turn out to have distinctive characteristics that mark them apart from impersonal settings. How do we recognize an intimate setting? It is one in which a high proportion of social interactions belong to ties in which at least one person gains access to information and/or attention that, if widely spread, could damage one of those participating in the interaction. Such settings create “communities of fate” in two regards. First, participants are making decisions and commitments that assume the continuing availability of shared resources and mutual guarantees. Second, by their very interactions they are transforming shared resources and mutual guarantees—degrading or improving the collective fortune such as a family house, creating or destroying means of internal coordination such as household budgets, expanding or contracting trust, such as the probability that one person will repay money borrowed from another, and so on.
Where we find a high density of intimate ties, we have seen, other crucial conditions prevail as well:
• Most interactions have implications for third parties who are intimately connected with at least one of the interacting persons, and often with both.
• Members of intimate settings are engaged not only in shortterm quid pro quo exchanges but also in longer-term reciprocity—commitments to provide help and attention when need arrives.
• Because of these conditions, each transaction matters not only for the instant but also for future interactions, third parties, and the community of fate.
• That is why confusing relations belonging to an intimate setting with those—intimate or impersonal—attached to other, nonintimate settings, introduces conflict and reduces mutual commitments.
• That is also why seemingly minor failures take on major significance to the parties: they cast doubt on membership’s meaning and future.
• Reacting to such threats of conflict and weakened allegiances, defenders of intimate settings introduce doctrines and practices of separate spheres and hostile worlds.
How does the American legal system deal with these intimate settings and relations? Answers to this third question have brought some of this book’s greatest surprises. For we have seen legislators, lawyers, judges, and juries creating matrices of relationships within which distinctions, meanings, and operating rules often look quite different from those prevailing in everyday practice. Legal theorist Thane Rosenbaum notices the differences between legal proceedings and everyday practice, but deplores that difference (see also Noonan 1976). Taking the example of compensation for 9/11 survivors, he condemns a legal system that assigns monetary values to moral and emotional losses. What victims of such losses need, Rosenbaum argues, is a chance to tell their stories, to grieve with others, to receive moral counsel from the law. “People look to the law,” he declares, “to provide remedies for their grievances and relief from their hurts, to receive moral lessons about life.. .. What most people don’t realize is that judges and lawyers are motivated by entirely different agendas and mindsets” (Rosenbaum 2004: 5). In this regard, Rosenbaum wants to erase the distinction between legal proceedings and everyday practice, at least the practice of moral discourse.
Rosenbaum’s proposal, however, ignores the fact that legal specialists and everyday practitioners of intimacy are pursuing quite different objectives. Legal specialists are usually seeking ways to apply available rules to contested problems, while most of the time participants in intimate relations are simply trying to pursue their lives more or less satisfactorily. Precisely because the overlap is small but crucial and contested, translation between the two worlds requires delicacy, sophistication, and negotiation. To be sure, the law changes as general practices of intimacy change, legal decisions affect intimate practices, and participants in legal processes bring their own experiences and understandings of intimacy to bear on legal decisions (Ewick and Silbey 1998, 2003; Lazarus-Black and Hirsch 1994). Legislators and courts also change the law in response to political shifts and popular mobilization. Yet doctrines such as consortium, innocent spouse, and undue influence reveal a legal world that describes and prescribes intimate relations according to principles requiring a dramatic reinterpretation of those relations.