I am presently working on chapter two of my thesis on intimate partner constructive trusts. My thesis explores the gendered nature of the law in this area, asking whether it effects a just distribution of property between spouses - through equity, not through statutory family law. In this chapter I establish that the law focuses on the parties' acquisition of the matrimonial home in a way that privileges the parties' exchange in terms of a transaction. The reason for the law's inconsistency over time in my view, is because the acquisition of the home is an aspect of a complex relational exchange. The law thus falls short of encompassing the relational aspects of property distribution.
The law's emphasis on transactions is a manifestation of market liberalism and is hardly surprising in Australian private law. However while the transactional approach may serve a purpose in a commercial market context it demonstrates the poverty of legal thinking in terms of a just property distribution within an intimate context.
In working on chapter two of my thesis I have read Richard Titmuss' The Gift Relationship (1970). In this post I set out some early thoughts on the utility of Titmuss' work in terms of explaining distribution of finances, property and services within an intimate relationship. I note that there is a considerable literature following publication of Titmuss' work in 1970, but this post relates only to my initial reactions on reading this text.
The Case StudyTitmuss uses a detailed international study of the blood donation system to articulate the role of social policy in facilitating ethical human behaviours. He asks the question: 'can you frame social policy without raising the question of society's morality and man's (sic) regard or disregard for the needs of others?' (p 11) He identifies a conflict between social policy providing opportunities for altruism on the one hand, and 'the possessive egoism of the marketplace' on the other (p13).
In his book he compares the market-driven blood donation system of the US with the voluntary system in the UK. His conclusion is that
the commercialisation of blood and donor relationships represses the expression of altruism, erodes the sense of community, lowers scientific standards, limits both personal and professional freedoms, sanctions the making of profits in hospitals and clinical laboratories, legalises hostility between doctor and patient, subjects critical areas of medicine to the laws of the marketplace, places immense social costs on those least able to bear them...increases the danger of unethical behaviour in various sectors of medical science and practice and results in situations in which proportionately more and more blood is supplied by the poor, the unskilled, the unemployed... Redistribution in terms of blood and blood products from the poor to the rich appears to be one of the dominant effects of the American blood banking systems. (p245-6)What is potentially relevant for my purposes however is his thinking around the 'donation' of blood (Titmuss uses this word because of its widespread acceptance, even though some donations are paid transactions - p71). He traverses the territory around the motivations for sacrifice. In the case of donation of part of ourselves (blood) to an anonymous stranger, 'the uniqueness of the blood gift' raises some fundamental issues. In particular, he asks where the social ends and the economic begins. (p158)
The forms and functions of giving embody moral, social, psychological, religious, legal and aesthetic ideas. They may reflect, sustain, strengthen or loosen the cultural bonds of the group, large or small...Customs and practices of non-economic giving - unilateral and multilateral social transfers - thus may tell us much...about the texture of personal and group relationships in different cultures...' (p71-2)
DifferencesMy first observation is that Titmuss' acknowledges two features of his study that distinguish it fundamentally from my thesis. The first is that he expressly situates it 'outside kinship and family in modern society' (p212) whereas my own study is situated within intimate relationships. Secondly, and relatedly, his study involves anonymous donations in a stranger relationship. He therefore spends some time in identifying 'who is my stranger?' (chapter 13). Despite this limitation, it is useful for me to explore the 'deeper human motives for giving and return-giving... and [that] the ways in which society organises and structures its social institutions can encourage or discourage the altruistic in man (sic)' (p225).
Secondly, and acknowledging that the book is now nearly 50 years old, it omits a woman's perspective. Titmuss' account of the importance of blood in history, myth and culture centers on blood as a symbol of vigour, virility and potency. Omitting an account of the taboos against menstruation, for example, highlights his explicit omission of women. Not a big deal in one sense, but this omission affects the depth of his analysis of altruism also.
In the first chapter, Titmuss says that 'men (sic) are not born to give; as newcomers they face none of the dilemmas of altruism and self-love' (p12). Despite this assertion he subsequently argues for the opportunity to express our 'biological need to help' (p212). I found it difficult to reconcile these two assertions. In particular I found the initial denial of a propensity to give, to be troubling. Perhaps it was derived from Titmuss' explicit exclusion of the family from his study - but certainly there is something to be said about women's experiences of altruism and giving, whether they are 'natural' or socially derived. Given that he is trying to articulate how altruism and giving might be supported in our complex modern society, I felt that there was something limiting about his conceptualisation of the nature of giving itself.
In exploring the nature of giving, the book gave an overview of anthropological and sociological accounts of gift giving in 'primitive' societies. I have already in my chapter referred to the work of Sahlins on the nature of exchange in 'primitive' societies and found it a useful reference point for understanding variations in motivation for giving. But I have struggled a bit to understand whether Titmuss is seeking to distinguish gift from exchange or to see them, as I think Sahlins does, as part of a continuum of giving.
Titmuss does look at Mauss, at Levi-Strauss and at Schwartz - each of whom explore gifts within 'primitive' societies. (Sahlins of course was published only subsequently, in 1974. He too canvassed Mauss's work.) The gift - Titmuss also calls it 'non-economic exchange' - in 'primitive' societies was 'not impersonal [as it is in our large scale economic system] but a moral transaction bringing about and maintaining personal relationships between people and groups' (p72). He cites Schwartz (p75) who identifies that the gift attracts social responsibility through status and control; gratitude; or shared guilt. 'Every gift-exchange dyad in [primitive] societies is characterised by elements of moral enforcement' (p72). In my view, this discussion indicates an exchange element to the gift. While characterised as non-economic, the benefits - 'buying peace, expressing affection, unifying the group, binding generations, fulfilling contractual obligations, penitence...' (p72) all represent a degree of bilateralism in the giving, and consequences arising from the exchange.
He then distinguishes the blood donation as a unique gift. It is anonymous, it causes pain, there is no reciprocation, the benefit or harm depends on the giver's honesty, etc (p74). Despite this assertion, the following chapters empirically demonstrate the very kinds of blood-donor motivations identified by Schwartz. I was therefore left feeling unconvinced about the uniqueness of blood donation as a gift, and seeing it only as part of the fabric of human relationships all of which center around exchanges of one sort or another.
For my purposes, altruistic behaviour, gifts, however they are constituted, whether economic or non-economic, are a form of exchange. But the concept of gift - sometimes confusingly called non-economic exchange - can inform how exchange within an intimate relationship is considered.
Possible alignmentThe Gift articulates the complexity of characterising giving and this resonates in terms of the intimate relationship. Whether legal or de facto, giving within marriage embodies the range of emotions and social contexts Titmuss mentions (p75). This provides an analogy for considering how (and why) intimate partners contribute within their intertwined lives, through service, emotionally and financially.
Titmuss suggests that 'all policy becomes economic policy, removing the moral choice to donate blood. All choices are economic choices measured for money and pursued in the dialectic of hedonism.' (p12) For the intimate relationship, family law statutes prosecute social and economic policy through redistribution of marriage property. Similarly, the trust is used by the courts as a means of protecting parties' economic interests according to the parties' own distribution. But in privileging the economic exchange (transactionism) the law omits the role of other kinds of giving (non-economic exchange, intimate relations) in the parties' distribution of property. In attributing altruistic motives to non-economic or relational exchange, the law functions in a dichotomy of transaction (valid) v relationship (invalid) where it is often women who are left economically disadvantaged.
In contrast to my work, Titmuss calls for protection of non-economic altruism per se. Instead, I call for an economic reckoning of non-economic relational exchange. Paradoxically and in furious agreement (!) Titmuss criticises the 'regressive system of redistribution' (of blood) where the 'costs are borne by the poor and the sick' (p201). I too characterise the law's obsession with transactional exchange to the exclusion of 'non-economic' exchange as a regressive system of redistribution of labour and property where the costs are borne by women. Our purposes, it seems, are aligned even if the path through our respective analyses is at times quite different.
Women's behaviours are often characterised as altruistic as means of denying recompense. A woman's work is unpaid because, done 'for love', it would be insulting to give it an economic value. In Titmuss' words, 'where does the social end and the economic begin?' (p158) Characterising women's work as natural, and altruistic, continues to be embodied in social and economic policy (see eg Fineman) and continues to deny women financial security. Titmuss' work is useful in his recognition that there is no value attached to altruism. He also explores the issue of powerlessness and coerced blood donation that is relevant for considering the role of gendered power, including (structural) social expectation, in the relational exchanges of marriage.
It is unclear whether, as a general proposition, spousal contributions within an intimate relationship are economic or not. But what is omitted in contemporary discourses on marriage is that the relationship is an economic one as much as it is emotional. Titmuss contrasts non-economic giving in a 'primitive' society, which is a personal and moral transaction - and he laments its loss in contemporary large scale economic systems (p72). But this seems overly sentimental to me. The work of Ian Macneil, for example, envisages all contracts as relationships first and foremost. In this respect, Titmuss' conclusion does not stand up against Macneil's alternative - highlighting again the limitations of his analysis.
Tentative conclusionsThe purpose of my thesis is to find a doctrinally sound means of attributing value to women's contribution to the intimate relationship; to characterise non-economic contributions to the relationship as potentially generative of property distribution (not redistribution as occurs in family law statutes). The aim is to depart from the courts' transactional approach whereby property is ascertained with reference to economic behaviours identifiable in a market context, but which are foreign within the home.
Marriage - legal or de facto - is imbued with social expectations and legal consequences, all of which have evolved in a context exclusive of women's experience, leaving women financially dependent and financially at risk. Despite parliamentary intervention through family law, the common law retains these norms. And so do the parties to the relationship, whose behaviours are informed by the historical context of marriage and women in society.
Titmuss suggests that social policy should be driven by morality, to promote 'creative altruism' or self-realisation with the help of others. Rather than his apparent earlier dichotomy of gift v economic exchange, this finding, towards the end of his book, is a useful iteration of his ideas. However if marriage (including de facto) represents social policy, centuries of expectations of benevolence by husbands towards wives has failed to promote self-realisation for women. In contrast to Titmuss' examination of blood donation, altruism has been a failed foundation for women's emancipation. I therefore maintain that the fact of giving, including non-economic exchange, should be generative of economic rights (property).
Unlike Titmuss' finding, I would support an approach that values partners' contributions to a relationship, altruistic (non-economic) or not. Titmuss seeks to value the morality in altruism; whereas I seek to value the relational context of the parties' exchanges. This requires re-thinking the law that embodies the market foundations of transactional exchange, to promote a framework of relational exchange.