The Gift_ Creativity and the Artist in the Modern World - Lewis Hyde [54]
To take one of Mauss’s own examples, a time of such differentiation was marked by the development of the distinction between “real” and “personal” law—between, that is, a law of things and a law of persons. In a gift economy, as we have amply seen, such a distinction is blurred, for things are treated in some degree as persons and vice versa. Person and thing, the quick and the dead, are distinguished spiritually, not rationally. Such was the case, Mauss surmises, in ancient Italy. In the very oldest Roman and Italic law, he contends, “things had a personality and a virtue of their own. Things are not the inert objects which the laws of Justinian and ourselves imply. They are a part of the family …” In antiquity the Roman familia was not simply people but the entire “household,” including the objects in the home down to the food and the means of livelihood. Later Roman law, however, increasingly distinguished economic and ritual interest; it divided the familia into res and personae, into things and persons, and in so doing, “passed beyond that antiquated and dangerous gift economy, encumbered by personal considerations, incompatible with the development of the market, trade and productivity—which was, in a word, uneconomic.” The distinction between thing and person is as much a feature of the modern world as it was of later Roman law, of course. As Mauss comments elsewhere, “This distinction is fundamental; it is the very condition of part of our system of property, alienation and exchange. Yet it is foreign to the customs we have been studying.”
Marriage gifts among the Tikopia. From Primitive Polynesian Economy by Raymond Firth (London, 1939).
Legal contract bears a vestige of the gift “contract,” but gift exchange must be placed in a separate sphere because, while contract sanctioned by law may formalize the union of gift exchange, it does so by disengaging it from the other components of a “total social phenomenon.” It sheds the emotional and spiritual content. Indebtedness and obligation become simply economic and legal relationships. Contract in law is a rationalization of the gift bond, just as usury (or interest), as I shall argue later, is a rationalization of the increase of gift exchange. Both contract and usury imitate the structure of a gift economy, but both drop the feeling, the “uneconomic” feeling.
If we are to speak of gift exchange politically, we must derive the politics from the nature of the gift contract. I have opened with Mauss’s story of Roman law because it sets the terms for a group of political tales with a similar theme. We may begin, as historians of anarchism commonly do, with the story of the Anabaptists’ brief tenure over the Westphalian city of Münster in the early sixteenth century. The various religious movements that emerged in Europe during the Reformation were a reaction not only against the papacy but against a new (and Roman) concept of property that allowed, for example, local princes, through the invisible magic of statutory law, to turn the “commons”—common fields, woods, and streams—into private preserves.
Of the many movements that rose in opposition to such “Roman” ideas, the Anabaptists are usually taken as antecedents to the political revolutionaries of later centuries. There were many Anabaptist factions, but all agreed in denying power to civil authority. Since the baptized were in direct contact with the Lord, any intermediary (state or church) was not only unnecessary but frankly faithless. Nothing should stand