Publication Date

2-1998

Journal

UCLA Law Review

Abstract

The law is notoriously suspicious of gifts, giving gratuitous promises less protection than contracts. An analysis based on the political philosophy of G.W.F. Hegel and the psychoanalytic theory of Jacques Lacan reveals that the law's ambivalence reflects the fundamental ambiguous nature of gifts.

The two dominant jurisprudential analyses of gift-utilitarianism and romanticism-share the single erroneous assumption that contract relations are characterized by atomistic rational behavior. The utilitarian, who views all human relations in terms of individual self-interest, analyzes gift as a primitive, incomplete, imperfect, and inferior form of contract. In contrast, the romantic, who believes that human relations can, and should, be based on altruism, sees gift as being not merely fundamentally different from the market regime of contract, but superior. A Hegelian-Lacanian analysis reveals that the utilitarian is correct in recognizing that gift relations are driven by the self-interest of the donor and that gift imposes reciprocal obligations on the donee, but incorrect in thinking that gift can be analyzed in terms of contract. In contradistinction, the romantic is correct in recognizing that gift and contract are fundamentally different, but incorrect in thinking that gift relations are characterized by the altruism of the donor and the freedom of the donee.

Far from being solely characterized by the cold calculation of self-interest, markets are erotic in the sense that they are driven by the desire for recognition. Contract, being mutual, reflects the true love relation in which recognition is freely granted and received by equals. Gift, being unilateral, reflects the failed attempt at forced relation between unequals that Hegel describes in his famed lord and bondsman dialectic.

Volume

46

Issue

3

First Page

815

Last Page

904

Publisher

UCLA School of Law

Disciplines

Jurisprudence | Law | Legal History

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