HAU
The “force in the thing”

This work is licensed under the Creative Commons | © Stephanie Frank. ISSN 2049-1115 (Online). DOI: http://dx.doi.org/10.14318/hau6.2.017

SPECIAL SECTION

The “force in the thing”

Mauss’ nonauthoritarian sociality in The Gift

Stephanie FRANK, Columbia College Chicago

In this essay, I argue that Mauss’ pivotal Essai sur le don has been misunderstood since Claude Lévi-Strauss’ famous introduction to it. Mauss’ paradigms for understanding gift exchange derive from Roman law, rather than deriving from the Maori notion of hau (the “spirit of the giver in the gift”). From various Roman legal institutions, Mauss derives the ideas that obligation can be enacted through mere ritual, that certain things are part of the family, and (most importantly) that people are constantly “selling” and “redeeming” themselves through exchange. I show that Mauss retrojected to a precapitalist past an alternative sociality that lacks a vertical dimension: it is constituted by a network of horizontal relations brought about by ritual exchange.

Keywords: History of anthropology, The Gift, Marcel Mauss, Paul Huvelin, Roman law, Année Sociologique, exchange, gifts

Marcel Mauss famously opens his Gift with a pair of questions1: “What is the rule of law (droit) and of interest which, in societies of a backward or archaic type, makes the present received obligatorily reciprocated? What force is there in the thing that is given that makes the recipient return it (Mauss 1925: 33)?”2

Mauss’ readers have taken the answer to this question to be the Maori concept of hau, which Mauss glosses as “the spirit of the giver in the gift.” After quoting Mauss’ questions, Marshall Sahlins claims bluntly, “The hau is that force.” He continues,[255]

The spirit . . . of the donor of the gift . . . seeks to return to its origin unless replaced, [so] it gives the donor a mystic and dangerous hold over the recipient. . . . Meanwhile, the Maori hau is raised to the status of a general explanation: the prototypical principle of reciprocity in Melanesia, Polynesia, and the American northwest coast, the binding quality of the Roman traditio, the key to gifts of cattle in India. (Sahlins 1973: 150)

Along similar lines, Yungxiang Yan suggests, “The hau always wishes to return to its place of origin. . . . It is the hau in the gift, Mauss asserts, that forces the recipient to make a return, and he calls this ‘the spirit of the gift’” (Yan 2002: 67). And again, Maurice Godelier: “[Mauss] believed he had found [“the key to the enigma” of why the gift was returned] in the concept of hau, the spirit of things” (Godelier 1999: 151).

Hau has been understood as the answer to Mauss’ questions largely because of the influence of Claude Lévi-Strauss. The Gift came to be widely received through its reprinting in the volume Sociologie et Anthropologie (1950)—and through the lens of Lévi-Strauss’ idiosyncratic introduction to that volume, which seems to have been the first construction of hau as the answer Mauss provides to his opening questions.3 For Lévi-Strauss, Mauss’ invocation of hau indicates his seduction by an “indigenous theory.”

In Gift, Mauss persists in reconstituting a whole from its parts, and as this is manifestly impossible, it is necessary to add to the mix a supplementary quantity that gives him the illusion of squaring his account. This quantity is hau. Have we not before us one of those cases (not so rare) where the ethnologist allows himself to be mystified by the indigene? . . . At the most decisive instant, Mauss is taken with a hesitation and a scruple. He no longer knows if he ought to make a picture of the indigenous theory, or construct a theory of the indigenous reality. (Lévi-Strauss 1950: xxxviii–xxxix)

Lévi-Strauss accuses Mauss of identifying the motivating force in gift exchange with the Maori idea of hau. One could be forgiven for expecting Mauss’ text to be an animistic meditation, based on this description.

Such support as Lévi-Strauss’ reading finds in The Gift derives from Mauss’ gesture to a “general theory of obligation” at the conclusion of his treatment of hau.

Such a fact [i.e., hau] clarifies two important systems of social phenomena in Polynesia and even outside of Polynesia. First, we grasp the nature of the juridical bond that the handing over of a thing created. We will return in a moment to this point. We will show how these facts are able to contribute to a general theory of obligation. But for the moment, it is clear that in Maori law, the bond of law, the bond through things, is a bond of souls, because the thing itself has a soul, is of the soul. From which it follows that to present something to someone is to present something of the self (Mauss 1925: 48).[257]

It has apparently eluded his readers that Mauss marks clearly that he is explicating “this system of ideas.” Mauss suggests, in his introduction, that he has taken up legal systems as means to “gain access . . . to the consciousness of the societies themselves,” and hau is, for Mauss at least, part of the Maori legal system (Mauss 1925: 33). Indeed, in this passage Mauss promises that he will later show how the facts at hand “are able to contribute” to a general theory of obligation. Clearly, then, Mauss does not take himself to be developing a general theory of obligation in his treatment of hau.

In fact, the perceptions of Lévi-Strauss and readers after him notwithstanding, Mauss has comparatively little to say about hau in The Gift; his treatment, about two pages long, amounts to a discussion of the now-famous explanation of Elsdon Best’s informant Tamati Ranaipiri, after which the word never again appears. Indeed, Mauss, after his consideration of the Polynesian data, quite clearly signals that he takes hau as a symbolization of a social reality:

This obligation [to exchange gifts] is expressed in a mythical and imaginary or, one might say, symbolic and collective way. It takes on the aspect of the interest attached to the things exchanged. . . .The communion and alliance that they establish are relatively indissoluble. In reality this symbol of social life—the permanence of influence over the things exchanged—only translates rather directly the manner in which the subgroups in these segmented societies . . . feel that they are everything to one another. (Mauss 1925: 87)

In this passage, Mauss considers as a “symbol of social life” the “permanence of influence over the things exchanged.” That is, hau is to be understood as the way in which the Maori apprehend a certain reality. By all indications, then, for Mauss as for Lévi-Strauss, “Hau is not the ultimate explanation for exchange; it is the conscious form whereby men of a given society, in which the problem had particular importance, apprehended an unconscious necessity whose explanation lies elsewhere” (Lévi-Strauss 1950: xxix).

The Gift, then—pace its anthropological and sociological reception—does not use hau to do explanatory work. In fact, hau is not even the source of Mauss’ conception of gift exchange. I argue, instead, that Mauss’ account of the mechanism of reciprocation depends on a certain (historically questionable) construction of the Roman legal institution of nexum, which involves selling oneself into slavery in exchange for the item tendered. To demonstrate this, I first retrieve Mauss’ long-running engagement with the Durkheimian jurist Paul Huvelin on the issue of the origins of the legal force of obligation. Then, to piece together precisely how Mauss conceived the “force in things,” if not under the rubric of hau, I take up Mauss’ interest, in The Gift, in two types of things: “brute” things, on the one hand, and things that are exchanged, on the other—where things that are exchanged figure as quasi-people, “inalienable,” part of the family. Mauss gestures toward the “inalienability” of things to explain why gifts must be returned, but this is not sufficient to underpin exchange as Mauss envisions it. To do that, Mauss turns to nexum, wherein people are treated as things. Mauss envisions society as a field determined by the coming and going of things and persons—a field in which we owe our very selves to each other.[258]

In reconstructing the intervention of The Gift, my intention is to explicate Mauss’ vision of sociality in The Gift, not to advocate for it. No reader with even a casual acquaintance with Marxist or Foucauldian critical traditions will have difficulty problematizing Mauss’ vision, but this is not my goal in the limited space I have here. Rather, this essay constitutes part of a broader investigation retrieving what I argue is the overarching project of the Durkheimian school: locating a secular model of moral motivation for the Third Republic in the face of the displacement and decline of the Catholic Church.4

Nevertheless, the argument has implications beyond an understanding of the coherence of the Durkheimian agenda: an accurate reconstruction of Mauss’ project can also help to reorient broader narratives of the history of the social sciences. Recognizing that Mauss’ conceptualization of the gift is based on early Roman legal institutions in juxtaposition with the Polynesian “system of ideas” complicates our understanding of the history of anthropology insofar as it destabilizes the reading of The Gift as occupying in simple fashion the developmental framework indicative of late nineteenth and early twentieth centuries. Indeed, Mauss classes as “formes typiques” data points from the Northwest Coast, Polynesia, and ancient Germanic law alike. While Mauss sometimes leans on the rhetoric of a narrative of the development of modern economic forms, he narrates this development as degradation as often as he narrates it as progress. What has been lost, for Mauss, is a less exploitative form of sociality—a form of sociality that he thought he was retrieving through his intervention in The Gift.

“The force in things”: From magic to exchange

Why does Mauss pose The Gift’s questions as he does? Why does he assume that what motivates reciprocity pertains to “a rule of law and of interest”? Why would he consider the problem under the unlikely form of a force located in things? Mauss and Hubert’s debate with the Durkheimian jurist Paul Huvelin, some two decades before The Gift, allows us to recover the concerns encrypted in this peculiar approach.

In his “Magic tablets and Roman law” (1901), Huvelin advanced the hypothesis that Roman private law had its origins in magical formulas. Mauss and Hubert responded, in Magic (1904), by distinguishing between “ritual” and “juridical” acts in terms of the species of efficacy involved: “To the extent that they have a particular efficacy, where they do more than establish contractual relations between entities, [acts] are not juridical, but magical or religious. Ritual acts are, in their essence, capable of producing something other than conventions; they are eminently efficacious; they are creators; they do” (Hubert and Mauss 1904: 14). That is, magical ritual achieved its ends automatically, whereas contract depended on an agreement of two wills.

In his “Magic and individual right” (1906), Huvelin objected that Hubert and Mauss’ distinction rested on an “inexact notion of juridical obligation.” He argued [259]that in civilizations characterized by the principle of “juridical formalism” there are juridical obligations that are begotten through rite alone. “In these civilizations, it is the forms alone which create or destroy rights, independent of any condition of will. Will without form produces no effect” (Huvelin 1906: 4n4). That is, early in the development of law, juridical acts operate on precisely the principle that Mauss and Hubert associate with magic: automatic efficacy.

The debate about the efficacy of ritual is staged in a footnote that seems unrelated to Huvelin’s major point, which pertains to his disagreement with Mauss and Hubert’s definition of magic as located outside structures of “organization.” Actually, though, the two are integrally related. Mauss and Hubert recoiled so strongly against Huvelin’s idea that magic could be located at the origins of contract because they were committed to magic’s status as extraorganizational, and contract was conceived as an apparatus of legal organization. While (Hubert and Mauss said) magical rites and juridical rites both created obligations, the former were “automatically efficacious” while the latter were not—and thus depended on authority to enforce.

Mauss and Hubert responded to Huvelin’s 1906 essay in the preface they wrote for their Mélanges d’histoire des religions (1909), even though that volume did not include the essay on magic that Huvelin had addressed. Their discussion makes clear how dramatically Mauss and Hubert’s analysis of magic had changed over the previous five years. Consider this: in Magic (1904), Mauss and Hubert conceived magic as a space where “authority” could be escaped—where “social forces” could be experienced in a more malleable way. Here is the last paragraph before the final analysis:

No more than sacrifice does religious life admit of individual initiative: invention is only produced under the form of revelation. The individual feels himself constantly subordinated to powers that overcome him and incite him to act. If we are able to show that in every extension of magic reign forces similar to those that act in religion, we will have shown that magic has the same character as religion. It only remains to be seen how these collective forces were produced despite the isolation in which magicians seem to be kept, and we shall be led to the idea that these individuals have only appropriated to themselves collective forces (Hubert and Mauss 1904: 89).

Both magic and religion involve the experience of an external force that incites us to action.5 In magic, though, the magician is able to appropriate this action to his own ends. For Hubert and Mauss in 1904, if sacrifice did not admit of individual initiative, magic, it would seem, did.

Contrast this with Mauss and Hubert’s 1909 preface, where they suggest that the apparently individual orientation of magic turns out to be misleading.

When individuals are gathered together, when they conform their gestures to a ritual, their ideas to a dogma, are they moved by purely [260]individual motives or by motives whose presence in their conscience can only be explained by the presence of society? . . . We believe we have . . . shown how, in magic, the individual only is . . . stirred by a collective suggestion, or at the very least by a suggestion that he gives himself under the pressure of the collectivity. (Hubert and Mauss 1909: xxvi)

To summarize: in both the 1904 and 1909 texts, Mauss and Hubert assert the essentially social nature of magic. But in 1904 they underscore the way in which magic allows the individual to harness the social forces for his own ends, whereas in 1909, their emphasis is on the way in which the magician has no motives that are truly his own. Mauss and Hubert’s political project in Magic seems only to have been made fully explicit, then, at the same moment it was abandoned: by the time of the Mélanges, Mauss and Hubert’s overarching theme is that we have always already been structured by society, even at sites where it might seem otherwise.

The fantasy of escape from authority

That Mauss and Hubert ultimately arrive at the position that we have always already been structured by society is no surprise—indeed, we might say it is the Durkheimian position par excellence. But I want to linger over Mauss and Hubert’s framing of the problem of motivation. Mauss and Hubert ask whether the magician’s motives are “explained by society” or instead “purely individual.” This stark opposition, coupled with their reiteration of the definition of magic in terms of its extraorganizational nature, would seem to suggest that Mauss and Hubert are holding out hope—quite against the Durkheimian paradigm—for a site at which people are (in their words) “moved by purely individual motives,” where agency is not socially determined. “It is always society that speaks by [magicians’] mouths,” they conclude their treatment of magic in the preface, and it is impossible not to scent their disappointment (Hubert and Mauss 1909: xxvi).

Nevertheless, it had been Hubert and Mauss’ position all along that magic was essentially social, so surely they could not have been surprised to discover society’s influence in it. I suspect imprecision: Durkheim was, at this time, constructing “moral authority” as a motivating social force that (because of a vertical geometry of power) we experience as externally constraining.6 If it is difficult to imagine that Mauss and Hubert could have hoped that magic would allow us to escape society, it is more tenable to suggest they hoped it would allow us to escape authority. This explains Mauss and Hubert’s commitment to their definition of magic as located outside of organization, even in the face of their inability to specify the extension of “organization” and their slide into articulating magic in terms of organization: the undergirding assumption of Magic is precisely that organization is a site of the articulation of authority.

But five years later, Mauss and Hubert had come to see that authority could make itself felt outside of “organization.” Consider their strong response, in the [261]preface, to Huvelin’s proposed distinction between “religion” that serves social ends and “magic” that serves individual ends.

Magic is not necessarily illicit and, in law, in fact, it serves the public right as well as the individual right. Thus, in the Australian tribes the threats of the bewitchment are for the old people a means of making discipline respected. It is not without reason that Frazer attaches to the power of the magician the power of the king. (Hubert and Mauss 1909: xxvi, emphasis added)

Very much along the lines of what Durkheim had long thematized as “moral authority,” Mauss and Hubert suggest that magic not only serves the collective interest but also the end of discipline.7 If, in Magic, they had sought to carve out a space for a sociality without authority, then five years later Mauss and Hubert had come to view magic as tending to be appropriated for authority’s purposes.8 Thus the preface makes clear Mauss and Hubert’s disenchantment with magic—in contrast to what had been their hopes for it as a potential source of a less authoritarian morale laïque.

This reading makes sense of an apparent idiosyncrasy of the text. Mauss and Hubert’s central critique of Huvelin’s hypothesis regarding the magical origins of legal conventions is that much of what Huvelin considers as “magic” should actually be classified under the mantle of “religion.” The point seems initially like hair-splitting, since the force of Huvelin’s argument is that the force of contract originally derived from ritual—whether those rituals ought to be classified as magical or religious seems a comparatively minor point. But since Huvelin’s binary associates magic with “individual right” and religion with “sovereignty,” when Mauss and Hubert make the point that he is mistaking religion for magic, they are simultaneously making the point that he is seeing the individual where he should be seeing society—and, runs the subtext, seeing autonomy where he should be seeing authority.

But—critically for our understanding of Mauss’ move to the “force in things,” in The Gift—if magic had revealed its bankruptcy for the project of locating a sociality without authority, mana had not. “There is . . . in all magical and religious rites, a single mysterious force that was once mistakenly called magical” (Hubert and Mauss 1909: xxvi). Magic and religion are together organized under the “mysterious force” for which they had appropriated the Melanesian term mana, but—critically—magic and religion do not exhaust mana. Mauss and Hubert’s characterization of mana, here, is more or less unchanged from Magic; however, here they make space for its instantiation not just in magical things but also in “material things” (Hubert and Mauss 1909: xxix). They claim that new ethnographical data has borne out their understanding of mana, asserting, “For all of Africa it is necessary to replace the notion of fetish by that of mana” (Hubert and Mauss 1909: xx). Fetishism—ensconced at the beginning of narratives of the development [262]of religion since Comte—is just a particular instantiation of the more general phenomenon of forces in things.

Belonging to the family: Roman law and the “spirit of the giver in the gift”

I take it that Mauss’ turn to the force in things, in The Gift, is now more comprehensible: if authority had been revealed to permeate magic as much as religion, perhaps material objects would be the locus of a force that was not so permeated. How does Mauss construct this “force in things,” then? Though hau is not the end of our treasure hunt, as Lévi-Strauss had it, it is the beginning. Mauss famously treats a text that had been brought to his attention in Hertz’s notes, in which Elsdon Best’s informant, Tamati Ranaipiri, discusses a three-person scenario.

Suppose that you possess a certain article, and you give that article to me, without price. We make no bargain over it. Now, I give that article to a third person, who, after some time has elapsed, decides to make some return for it, and so he makes me a present of some article. Now, that article that he gives to me is the hau of the article I first received from you and then gave to him. The goods that I received for that item I must hand over to you. It would not be right for me to keep such goods for myself, whether they be desirable items or otherwise. I must hand them over to you, because they are a hau of the article you gave me. Were I to keep such equivalent for myself, then some serious evil would befall me, even death. (Best 1908: 439)

In this scenario, one person gives a second person a gift, and the second person passes on that gift to a third; Ranaipiri’s contention is that whatever return gift the third person gives to the second ought to be passed along to the first, because it is the hau of his gift. Mauss makes sense of this scenario through an explication of (his understanding of) hau:

In order to comprehend this Maori jurist fully, one need only say “ . . . All goods termed strictly personal possess a hau, a spiritual power. You give me one of them, and I pass it on to a third party; he gives another to me in turn, because he is impelled to do so by the hau my present possesses. I, for my part, am obliged to give you that thing because I must return to you what is in reality the effect of the hau of your taonga . . .”

When interpreted in this way, the idea not only becomes clear but emerges as one of the key ideas of Maori law. What imposes obligation in the present received and exchanged is the fact that the thing received is not inactive. Even when it has been abandoned by the giver, it still possesses something of him. . . . At bottom [au fond], it is the hau that wishes to return to its birthplace . . . and to its owner. . . . And that is the master idea [Et voilà l’idée maitresse] that in Samoa and New Zealand seems to dominate the obligatory circulation of wealth, tribute, and gifts. (Mauss 1925: 47)

Raymond Firth complains that Mauss has transformed the hau of the object into the hau of the owner in the object: “By a transition, for which no authority is given [by Mauss], the hau of the giver, not that of the gift, is finally said to be at basis of [263]this compulsion to repay” (Firth 1959: 413–14). And indeed, Mauss initially imagines the “spiritual power” as the force of the thing, but in the next paragraph, he figures it as the force of the owner in the thing. He recapitulates this transformation in condensed form in yet the next paragraph, writing, “the bond between things is a bond of souls, because the thing itself has a soul, is of the soul,” from which it follows that “to present something to someone is to present something of the self” (Mauss 1925: 31).

This is not mere sloppiness. Mauss makes a very similar move in reading the Kwakiutl data.

Everything holds together, everything is mixed up together; things have a personality, and the personalities are in some way permanent things of the clan. Titles, talismans, coppers, and the spirits of chiefs are homonyms and synonyms, of the same nature and of the same function. The circulation of goods follows that of men, women, and children, of festivals, of rites, of ceremonies and of dances, even that of pleasantries and injuries. At bottom it is the same thing. If one gives things and returns them, it is because one is given and is returned “respects”—we say still, “politesses.” But also, it is that one gives oneself in giving . . . (Mauss 1925: 125)

Mauss here works from the idea that certain things, just as humans, have “personality,” to the idea that certain things, just as humans, are part of the clan. Postulating the identity of exchanges of all different sorts, he concludes that “in giving one gives himself.” But much as in the case of hau, Mauss’ discussion of objects and their status among North American tribes presents no ethnographical evidence of the spirit of the giver in the gift. That is to say, in both the case of Polynesia and that of the American Northwest, Mauss slips ineluctably from the personality or agency or spirit of objects, for which he presents an ethnographic basis, to the spirit of the owner in the object, for which he does not.

That Mauss elided the spirit of owner and the spirit of the object in both the case of hau and the case of the copper objects of the American Northwest is telling. Far from elevating hau to the status of general explanans vis-à-vis the question of why gifts are returned, Mauss fit hau into a paradigm that ultimately derived elsewhere. My interest here does not lie in discrediting Mauss: of course this liability, to a greater or lesser degree, characterizes all comparative enterprises. Nor does it lie in “correcting” Mauss in his reading of the Maori or Kwakiutl data. Instead, I raise the point to recover the sources of Mauss’ paradigm of gift exchange—and with them, the intervention of Mauss’ text.

Manipulating the distinctions of Roman law

Mauss’ dominant interest in the first half of The Gift lies in the legal differentiation, in a variety of societies, between two classes of things. He begins with the Samoan oloa and taonga. The former are not intrinsically significant, whereas the latter are “linked to the soil, the clan, the family, and the person”; the former are masculine, the latter feminine; the former are brute matter, the latter personified. Mauss draws [264]out a similar distinction in every civilization he considers in the first two chapters of The Gift; he pursues the distinction so single-mindedly that important differences—for instance, that between gift exchanges and potlatches—are blurred in its wake. But it is when he turns to Roman law that he gives the most extensive treatment.

Originally, certainly, things themselves had a personality and a power. Things are not the inert beings that the law of Justinian and our laws understand them to be. First, they form part of the family: the Roman familia includes the res, and not only people. . . . Moreover, things were of two kinds. One distinguished between the familia and the pecunia, between the things of the house (slaves, horses, mules, donkeys) and the livestock that lived far from the stables. . . . We could say that the Roman veteres make the same distinction that we have just asserted in Tsimshian and Kwakiutl civilizations, between the permanent and essential goods of the household (as one still says in Italy and [in France]) and the things which pass away: food, cattle on faraway pastures, metals, and money. (Mauss 1925: 133)

Mauss is generally content to let comparisons suggest themselves, but when he treats the two classes of things in Roman law, he draws them out.

This might already suggest the paradigmatic status of the familia/pecunia distinction in Mauss’ thought. But to convince ourselves further, we might return to oloa and taonga: what exactly is the crux of this distinction in Mauss’ treatment? Mauss remarks cryptically that the oloa are “meubles,” the taonga, “immeubles par destination.” Mauss’ readers and translators have overlooked that immeubles par destination is a technical category in French law denoting things that are movable but are nonetheless considered legally as immovable insofar as they are associated with land.9 Article 524 of the Code Civil reads:

Objects that the owner of property has put there for the service and use of this property are immeubles par destination. Also immeubles par destination, when they have been placed by the owner for the service and use of property, are animals associated with cultivation; the tools of tilling. (Sirey 1817: 191)

Of course, the distinctions of French law—and especially French property law—derive ultimately from the Napoleonic appropriation of Roman law, and in particular, Justinian’s Corpus Civilis Juris.10 In fact, the meubles/immeubles vocabulary that Mauss borrows to cognize the distinction between the Samoan oloa and taonga maps onto the Roman distinction between res mancipi and res nec mancipi—a distinction pertinent to the sort of procedure necessary to transfer ownership. That [265]the French legal distinction derives directly from the Roman is evidenced by the fact that Roman law contains an exact analogue to the liminally situated class of immeubles par destination that Mauss particularly invokes.11

It appears, then, that Mauss’ paradigm for thinking about the division between the classes of things derives ultimately from Roman law. We will take up the question of res mancipi—and its relation to the familia/pecunia distinction—at length below, but for now I want just to venture further in Mauss’ treatment of the familia/pecunia distinction to tease out his figure of the “spirit of the giver in the gift.” Directly after distinguishing between things of the household and livestock, Mauss continues:

The res was not, at its origin, only the brute and tangible thing, the simple and passive object of the transaction that it has become. It seems that the best etymology compares it with the Sanskrit rah, ratih, gift, present, agreeable thing. The res was supposed to be, above all, what made pleasure for someone else. On the other hand, the thing is always stamped with a seal, marked as property of the [original owner’s] family. Thus it can be understood that the mancipatio—the solemn handing-over of these things, mancipi—creates a bond of law. For even between the hands of the accipiens, the thing remains, in part, for a time, part of the family of the first owner. (Mauss 1925: 133).

This paragraph is mystifying in its turns: first Mauss suggests that res is cognate to the Sanskrit for gift, which he glosses as “that which makes pleasure for someone else”; the trajectory of this excursus is not revealed until Mauss rather abruptly shifts to d’autre part, wherein he relates that the res mancipi is always marked with the family seal and in fact remains bound to the original family until the actual possessor is freed by the execution of the contract. That is to say, these objects are simultaneously part of the family whence they came and also intended to give pleasure to someone else.

One aspect of Mauss’ concept of the “spirit of the giver in the gift,” then, derives from Roman law’s distinction between two classes of things. Actually, though, he invokes two legal distinctions between two classes of things: the distinction between familia (things that are part of the household) and pecunia (things that are not), and that between res mancipi (things that are transferred via the mancipatio ritual) and res nec manicipi (things that are not). In Roman law as Mauss imagines it, certain things derive their legal status from belonging to the family in the strongest possible sense, and they maintain their owner’s mark even as they are given away—this pertains to the familia/pecunia distinction. At the same time, though, he invokes (both directly and via French law’s categories of meubles and immeubles) another distinction—and eventually assimilates the two. It remains to us to understand what Mauss intends in doing this.[266]

Nexum: Thinking persons as quasi-things

The argument of The Gift is hinged in the middle; at the end of chapter two—following on his consideration of the personified things and potlatches of the societies of the Pacific Rim—Mauss offers what he calls a “première conclusion.”

Thus . . . we have found: first of all, in two or three groups, the potlatch; then the principal reason for, and the normal form of, potlatch itself; and then, in all these groups, the archaic form of exchange: that of gifts presented and returned. Moreover, we have identified the circulation of things in these societies with the circulation of rights and of persons. We could, if we had to, stop there. The number, the extension, and the importance of these facts fully authorizes us to conceive a regime which must have been that of a very great part of humanity during a very long transition phase and which moreover subsists among the peoples we have just described. They permit us to conceive that the principle of the exchange-gift must have been that of societies which had passed the phase of “total prestation”. . . and which had not yet arrived at pure “individual contract, at the market where money circulates, at the sale properly called and especially at the notion of price reckoned in money. (Mauss 1925: 125)

Mauss takes his analysis of the “total prestations” of Melanesia, Polynesia, and the Pacific Northwest to be sufficiently suggestive as to imply a narrative of the evolution of contract: the most “archaic” exchanges were clan-to-clan exchanges of gifts, which eventually gave rise to gift exchanges between individuals, and finally to contract.12 And it is a commonplace in the literature that Mauss’ Gift contests the developmental narrative of the theorists of “natural economy,” who claimed (largely on the basis of thought experiments) that the earliest exchanges were those of bartered essentials.

“We could, if we had to, stop there,” Mauss writes. But he does not stop there; rather, at the beginning of chapter three, he begins anew, turning away from the ethnographic data of the colonial encounter and to the data of ancient law. As he takes up Roman law, Mauss gives the clearest articulation of the normative agenda that orients The Gift.

We live in societies that distinguish strongly (the distinction is now criticized by the jurists themselves) droits réels and droits personnels, persons and things. This separation is fundamental: it constitutes the condition . . . of our system of property, alienation and exchange. At the same time, it is foreign to the law that we have just studied. . . . Our civilizations distinguish strongly between obligation, the prestation that is not free, on the one hand, and the gift on the other. But are these distinctions not quite recent in the legal systems of the great civilizations? Have they not passed through an earlier phase in which they did not have this cold and calculating mentality? (Mauss 1925: 127–28)[267]

Mauss associates the distinction between things and persons with that between obligatory and gratuitous prestations: both, he suggests, are relatively recent products of history, and both are indicative of a “cold and calculating mentality.” The suggestion would seem to be that if only we could unthink these binaries—if only we could retrieve certain aspects of our own history—we would find a better social arrangement.

Under the heading “Personal Law and Real Law,” Mauss immediately takes up the Roman legal institution of nexum—roughly, that institution whereby someone pledged his person as security for a debt. But nexum was not so simple as this, and indeed, Mauss’ copious citations underscore that its precise contours were the subject of considerable debate in French and German legal thought in the late nineteenth and early twentieth centuries. The questions that motivated the literature that Mauss cites were several. The word “nexum” is from the verb nectere, to bind, so there was (1) some question of whether one was actually enslaved by the nexum procedure or rather just metaphorically enslaved—which is to say, obligated to repay the debt; relatedly, there was (2) the question of whether one’s person was immediately alienated, with the nexum procedure, or instead just alienated when the specified deadline for repayment had passed; and finally, (3) the question of the relation of nexum and mancipatio, the latter being the procedure through which ownership was transferred for res mancipi—the goods Mauss discusses as quasi-people.

Mauss’ major source on nexum is none other than Huvelin: he cites Huvelin’s entry on nexum in the important Dictionnaire des Antiquités Grecques et Romaines (1919) and his reviews of new literature on nexum in practically every volume of the first series of the Année Sociologique (1906). Though largely critical and synthetic, Huvelin’s work makes clear that the topic of nexum is not without political interest for him. Thus he reminds us that nexum was a flashpoint of conflict between “les patriciens capitalistes” and plebeians; he suggests that it had to fall away in the forward march of justice because it gave the former too much power and the latter no recourse, and so on.13 And of course there is a long Revolutionary tradition, beginning with the liberation of the Bastille, of the critique of French law’s equivalent of nexum, the contrainte par corps.

But the vocabulary of “capitalisme” in the nexum debate of Mauss’ time is more than an appropriation of Revolutionary rhetoric. The question of the “capitalism” of the ancient world, around the turn of the twentieth century, had been pressed by the so-called Bücher-Meyer controversy. The German economist Karl Bücher, in his Die Entstehung der Volkswirtschaft—a foundational text in the study of nonmarket exchange—had advanced the idea that the economy of the ancient city was fundamentally discontinuous with the modern economy (Bücher 1910). The ancient historian Eduard Meyer, on the other hand, insisted that the ancient economy was recognizably modern and could be analyzed in modern terms. [268]Accordingly, he smeared Bücher as a “primitivist.” The debate came to involve many important German thinkers, though it seems clear, in retrospect, that it was driven as much by divergent political and ideological commitments as the matter putatively at hand. Bücher’s and Meyer’s different imaginations of the “ancient” in relation to the “modern” implicated anthropology’s different imaginations of the “primitive” in relation to the “modern”—and the political critiques that they carried in train. Indeed, one of the sections of Malinowski’s Argonauts that Mauss particularly cites in The Gift is couched as a critique of Bücher (Mauss 1925: 170n2).

In keeping with Mauss’ recognition of a wide range of societies as exemplifying “formes typiques,” the position Mauss stakes in his treatment of Roman law in The Gift aligns broadly with that of the modernists. In two different footnotes in the second half of The Gift, Mauss criticizes the Bücher thesis, which held that the ancient economy (the “closed household economy”) was characterized by the absence of exchange. More importantly, Mauss explicitly makes the claim that the modern economy is not so far from the ancient as we might have thought. He introduces his treatment of ancient legal institutions thus:

Institutions of this type have really furnished the transition toward our forms of law and economy. They can serve to explain historically our own societies. The morality and the practice of exchanges employed by societies that immediately preceded ours keep still more or less important traces of all the principles that we have just analyzed. We believe in fact that we are in a position to show that our own systems of law and economies have emerged from institutions similar to those we describe. (Mauss 1925: 127)

It is in this framework that Mauss approaches nexum. Taking up Roman law “somewhat earlier than it really becomes historical,” Mauss “pose[s] again one of the most controversial questions in legal history, the theory of nexum.” As though fifteen years had not elapsed since the Mélanges—as though Huvelin were still alive—Mauss immediately takes up the old debate: what is the source of contractual obligation? Recall that for Huvelin, at sufficiently early points in prehistory, there was no distinction to be made between magical rite and juridical rite: under “juridical formalism,” the rituals of the law were efficacious in just the same way as magic. Mauss and Hubert’s position was that “juridical formalism” did not have to be either religious or magical in order for its rituals to be automatically efficacious in creating obligation. The Gift is Mauss’ attempt to spell out the power of juridical formalism through explicating “the force in things.” That is to say, Mauss conceived gift exchange as showing the way in which things create obligation “automatically”—i.e., without recourse to authority.

In The Gift, Mauss maintains that the premodern legal understanding of the thing is the precondition for the magical rite. Mauss insists, “The magical sanction is only possible, and is itself only the consequence of the nature of the spiritual character of the thing given” (Mauss 1925: 129). The “force in things” underwrites Huvelin’s category of “juridical formalism.” “There is certainly a tie expressed by things, in addition to magical and religious ties: those of the words and actions of juridical formalism” (Mauss 1925: 129). Mauss emphasizes this point by explaining [269]that the solutio of the nexum had to be undertaken by undoing the original ritual, performing the same actions in reverse.

But—in keeping with Mauss and Hubert’s earlier concerns—it is not just that the force of nexum lies in things; it is that it lies in things in contrast to authority. In The Gift, Mauss picks up on one of the major themes of the literature of nexum: the juridical “rite” of handing over the thing itself generates the tie of obligation. Thus Huvelin discusses the case of an unfulfilled obligation:

If [the debt] was not paid, the sanction consisted, not in a legal claim, as one might believe a priori, but in a manus injectio [i.e., the procedure associated with the seizing of one’s own slaves] immediately given without judgment. . . . In effect, by all appearances, the nexum must have existed long before the appearance of the legis actio per sacramenta, in an epoch where the manus injectio was the only legal action. By this [hypothesis] are explained the texts that . . . depict the nexum as executed without judgment [exécutoire sans jugement]. (Huvelin 1905: 412)

Legis actio—a civil procedure from early in the development of Roman law—consisted in scripted formulae to be recited before the magistrate. One could not deviate even slightly from the formula.

In Huvelin’s summary of the legis actio per sacramenta, authority is implicated at two sites: in the magistrate before whom the oral ritual is performed, and in the treasury who benefits from the penalty forfeited by the losing party. Never shy about speculative history, Huvelin here imagines that before the various forms of legis actio, the only legal procedure available was the laying on of hands associated with the master reclaiming his escaped slave, the manus injectio (Huvelin 1905: 412). That is, he imagines at the shadowy beginning of Roman legal history a moment at which all obligations were self-enforced.

From Huvelin’s Année reviews, Mauss certainly knew that the relation of mancipatio and nexum was a well-rehearsed issue in contemporary scholarship of Roman law.14 We might expect, from the deference he signals Huvelin and Paul Frédéric Girard, that Mauss would follow them in distinguishing the two: mancipatio was a kind of sale whereas nexum was a kind of loan. But in his treatment of the nexum procedure, Mauss diverges from his sources. He focuses on the ritual’s bronze ingot (aes).

It seems to us that the Romanists and even Huvelin generally have not paid enough attention to a detail of the formalism of nexum: the destiny of the bronze ingot, the aes nexum discussed by Festus. . . . This ingot, when the nexum is formed, is given by the tradens to the accipiens. But, we believe, when the latter discharges himself from the bond, not only does he carry out the service promised or hand over the thing or its price, but in particular with the same scale and with the same witnesses, he gives the same aes back to the lender, the seller, etc. Then, he buys it and receives it in his turn. (Mauss 1925: 130n2)[270]

Mauss faults Huvelin and other previous commenters on the nexum for not paying this complementary transaction enough attention. In his analysis, the debtor receives the thing but also receives the aes as a token of his person being “accepted” in lieu of the price of the thing.

To cognize the token alongside the thing exchanged is to show that the nexum transaction approximates the form of gift and countergift. Mauss spells it out for us a bit further on in the footnote: “If our interpretation is correct, in addition to the nexum that derives from the solemn forms employed and the nexum that comes from the thing, there is in fact another nexum that arises from this ingot that is given and accepted in turn” (Mauss 1925: 130n2). And yet again, in a footnote about the interpretation of the “oldest Roman jurists,” Mauss writes, “The two parties are equally bound by the process. There is reason to suppose that they were equally bound by the thing, moreover” (Mauss 1925: 130). Critically, though—and here is the departure from Huvelin—the shadow-exchange of the token transforms the nexum from a sale on the basis of a loan into an exchange: the thing in exchange for the person. Indeed, Mauss insists that the motif of slavery is still present even when no loan is necessary: “In a cash sale the two actions occur simultaneously, so to speak, or at a very short interval.” That is, what we would consider the simplest case—that of a “cash sale”—turns out not to be so simple at all, on Mauss’ construction of Roman law: to buy the thing, I “sell” and then immediately “ransom” myself.15

More to the point, Mauss moves to incorporate this selling of oneself into every transaction. In this critical tenth footnote of chapter three—purportedly concerning nexum—Mauss cites Aelius Gaius’ Institutiones III.174 (irrelevant to the issue) and Festus, whose treatment of nexum gives none of the details that Mauss supplies.16 And from the details Mauss gives—five witnesses, “arbitrator”, etc.—what he has in mind seems in fact to be the ritual associated with mancipatio, detailed exactly as it appears in Institutiones I.119. Similarly, when Mauss treats as nexum in the body of the text, he cites Varro’s De Re Rustica II.1.15, which pertains to the sale of farm animals, which he presumably intends to be constructed as res mancipi—i.e., things whose ownership must be transferred through the mancipatio. That is, whenever Mauss sets out to treat the nexum, he ends up considering the mancipatio.[271]

Mauss is not subtle about his move to incorporate nexum in mancipatio. Since the mancipatio procedure involves creating obligations, this is in line with the metaphorical construction of nexum that renders it as the state of having been bound by obligation. However, Mauss simultaneously insists on the stronger construction of nexum, according to which nexum is not figurative but literal: one really does sell himself into slavery thus. At the end of his treatment of Roman law, Mauss remarks that, so far as “understanding the whole system” goes,

It nearly suffices to remark that the solemn formulas that are used—that of the mancipatio, concerning the bronze ingot, that of the acceptance of gold of the slave who buys himself (this gold ought to be “pure, true [i.e., not counterfeit], profane, and his own”)—they are identical. Moreover, they both are echoes of the oldest emptio, that of cattle and of the slave, which has been conserved for us under its form in the jus civile. (Mauss 1925: 139)

The most important aspect of the system of exchange, according to Mauss, is its intimate connection with the institution of slavery. The solemn formulas of the sale of res mancipi are identical to those used in the sale of slaves, contends Mauss, and so (the implicit logic runs) in some sense every transaction involves giving oneself over simultaneously with giving things over. The analysis of the nexum renders Mauss’ move from the spirit of things to the spirit of persons overdetermined: not only does his deployment of the familia/pecunia distinction entail the personification of things, but his construction of the nexum-mancipatio paradigm implies that every exchange involves a kind of selling of the persons involved.

Mauss’ final move positioning nexum-mancipatio at the foundation of gift exchange is to return to the distinction that so occupied him in the first two chapters of The Gift, in order to insist that the distinction between things that require the mancipatio and things that do not maps onto the distinction between things in the family and things that are merely things.

One distinguishes between the familia and the pecunia, between the things of the house (slaves, horse, mules, donkeys), and the cattle who live in the fields from the stables. And one distinguishes also between the res mancipi and the res nec mancipi, following the forms of sale. For the ones, which constitute the precious things, including the immeubles and even the children, there can only be alienation following the formulas of the mancipatio, of the taking (capere) in hand (manu). There is a great deal of discussion over whether the distinction between familia and pecunia coincides with the distinction of res mancipi and res nec mancipi. For us this original coincidence is beyond the shadow of a doubt. Things which do not require the mancipatio are precisely the minor livestock and the pecunia, money—which derive in idea, name and form from livestock. (Mauss 1925: 133)

Mauss gives no argument for his assimilation of res mancipi/res nec mancipi and familia/pecunia, even though the consensus of legal scholars of his time was that the distinctions did not coincide.17 And in fact, the status that Mauss himself grants [272]to cattle as res mancipi—recall Mauss’ invocation of immeubles par destination—would seem to undercut his mapping of the one distinction onto the other, since cattle are (as we have already seen Mauss acknowledge) the paradigmatic pecunia.

Well-founded or not, the assimilation of the res mancipi/res nec mancipi and familia/pecunia distinctions would appear to be the grounds for Mauss’ suggestion that the institution of nexum bears the traces of the “primitive economies” that he treats in The Gift’s first two chapters. Perhaps more to the point, the conflation appropriates for the personified familia the “force in things” implicit in the “juridical formalism” of the mancipatio—i.e., the fact that the handing-over of the thing according to the contours of the ritual creates obligations that are enforceable without recourse to authority.

This takes us back to the question of hau: Mauss’ imagination of reciprocity in gift exchange is not just an elaboration of the paradigm of familia superimposed (with distortive consequences) upon the Maori data to suggest that in the gift is the giver’s spirit. After all, this could never explain why (in most instances) the object reciprocated is an object different than the object given. Mauss’ vision, rather, is that the handing over of the familia/taonga automatically (as per the mancipatio) creates an obligation to reciprocate (Mauss 1925: 131).

The conflation of the class of res mancipi (whose exchange requires the treating of people as things) with that of familia (whose exchange treats things as people, members of the family) makes sense of Mauss’ vision of gift exchange as entailing a series of exchanges of things and people, everything mixed up together. Mauss makes such claims several times over; discussing the Polynesian case, for instance—directly following his discussion of hau—Mauss writes,

In all of this, there is a series of rights and obligations to consume and to return, corresponding to the rights and obligations to present and receive. But this narrow mixture of rights and symmetrical and contrary obligations stops seeming contradictory if one conceives that there is, before all, a mixture of spiritual bonds between the things which are to some degree of the soul and the individuals and groups which are treated to some degree as things. Everything comes and goes as if there were a constant exchange of spiritual matter including things and people, between clans and individuals, distributed between ranks, sexes, and generations. (Mauss 1925: 35, emphasis added)

Thus, by assimilating a variety of Roman legal categories to each other, Mauss manages to implicate the “soul” of the giver (whose gift bears the stamp of his familia) as well as that of the receiver (who is “sold” when he receives the gift). Here we see Mauss’ profound concern—over and against the Durkheimian model of obligation as deriving from a profoundly asymmetrical relationship crystallized in “moral authority”—with symmetry. Less intuitively, Mauss specifies that on his conception [273]of exchange, things are treated as people (the familia/pecunia distinction), at the same time that people are treated as things (through the nexum implicit in every handing-over). I want to take this up, in concluding, toward specifying Mauss’ normative agenda in The Gift.

Mauss’ questions and the infinite series of exchanges

We have contextualized Mauss’ peculiar framing of the question of reciprocity: “What force is there in the thing that is given that makes the recipient return it?” So enchanted by the idea of hau have Mauss’ readers been that they have overlooked the answer explicitly phrased as such, in The Gift’s conclusion, but now we are in a position to consider it.

At bottom, even as these gifts are not really free, they are not really disinterested. They are already counter-prestations for the most part, and made in view not only of paying for services and things, but also for maintaining a profitable alliance that cannot be refused, as for example the alliance between tribes of fishermen and tribes of farmers or potters. And, this fact is general: we have encountered it among the Maori, Tsimshian, etc. We see thus where this force resides, at the same time mystical and practical, which brings the clans together and at the same time divides them, which divides their labor and at the same time constrains them to exchange. Even in these societies, the individual and the group, or rather the subgroup, always sense the sovereign right to refuse the contract; that is what gives an aspect of generosity to this circulation of goods. But, on the other hand, they generally have neither right nor interest to refuse, and that is what makes these distant societies the parents of ours. (Mauss 1925: 172, emphasis added)

In classically Durkheimian mode, Mauss remarks that “this force” is one that unites and at the same time separates clans: it divides their work and at the same constrains them to exchange. That is, Mauss suggests that the force that motivates reciprocity can be credited not only with compelling the return of the gift but also with the very structure of society.

Though it is obvious, considering the litany of effects of exchange he produces, why Mauss suggests it is not in one’s interest to refuse a contract, it is less clear why he should suggest that it is not (one’s “sense” notwithstanding) his right. The explanation lies in Mauss’ construction of any particular gift exchange as only the last in an infinite regress of exchanges. For Mauss, the formalism of the token is also a kind of sedimentation of history: he conceives the token of the nexum exchange as being the “residue” of foregoing exchanges.

[The pledges] are things that are themselves brought to life (animées). Especially, they are residues of ancient obligatory gifts, owed because of reciprocity; the contractants are bound by them. In this respect these additional exchanges express as a fiction that coming-and-going of souls and things mixed up among themselves. The nexum, the legal “lien,” springs from things as much as from men. (Mauss 1925: 130, emphasis added)[274]

Mauss is positioning the exchange at hand as determined and undergirded by exchanges that went before. Even Mauss’ imaginative reconstruction of the institution of nexum will not by itself support the idea of the current exchange as “residual.” In fact, Mauss secured the symmetry of the nexum by closing the transaction rather tidily. When the thing is handed over to the debtor, the debtor also receives the aes to signify that he himself has been sold in return, and when the debtor discharges his debt, the transaction is reversed; each of these moments represents a complete transaction.

Nevertheless, in the peculiar, long footnote about the nexum, Mauss (after explaining that the debtor receives the aes as a token of the relationship obtaining between him and his creditor) notes summarily that after the debtor returns the aes to show the discharge of his obligation, he may buy it “in his turn.” And we can see Mauss’ construction of infinite sequence of exchanges coloring his analysis elsewhere in The Gift. Consider, for instance, this passage regarding res:

The res must above all have been something that gives pleasure to another person. Moreover, the thing is always stamped by a seal, as a mark of family property. Thus one can understand that a solemn handing over, mancipatio, creates for these things the mancipi, a legal tie. For in the hands of the accipiens, the thing handed over continues, in part and for a time, to belong to the family of the original owner. It remains bound to him, and binds its present possessor until the latter is freed by the execution of the contract, namely by the compensatory handing over of the thing, price or service that, in turn, will bind the initial contracting party. (Mauss 1925: 133–34, emphasis added)

Mauss on the one hand stipulates that the contract has been executed but on the other adds a counterobligation on the part of the original creditor. This peculiarity makes the parallel treatment of hau all the more notable.

The passages are parallel not only in claiming that the obligation is simultaneously discharged and reversed but also in invoking alongside this dynamic an originary tie.

At bottom, it is the hau that wants to return to the place of its birth, to the sanctuary of the forest and of the clan and to the owner. It is the taonga or its hau which is moreover a sort of individual—which is attached to this series of users until they give back from their own taonga . . . an equivalent or superior value which, in its turn will give to the givers authority and power over the first donor (donateur), who was become the last recipient (donataire). (Mauss 1925: 48)

In both Maori and Roman cases Mauss claims that in the very moment in which the “debt” obligation has been discharged, it is reversed: the former creditor is now the debtor. There is no way to square accounts, on Mauss’ accounting; there is always a debt left over.

The infinite sequence of exchanges retrojected along these lines grounds Mauss’ claim that “one gives oneself in giving . . . and if one gives himself, it is because one “owes”—himself and his goods—to others” (Mauss 1925: 125). And this ultimately the normative vision of The Gift: if every exchange involves a nexum, and every exchange is only the outcome of all of the foregoing exchanges, we always already owe [275]our very selves to each other. Mauss corroborates this in a footnote about natural rights:

The principles of law that preside over market, purchase, and sale, which are the indispensable condition for the formation of capital, ought and can subsist alongside new principles and older principles. However it is necessary that the moralist and the legislator not be allowed to stop at our so-called principles of natural right. For example, it is only necessary to consider the distinction between droit réel and droit personnel as an abstraction, a theoretical extract of certain of our rights. It is necessary to let them subsist, but to contain them in their place. (Mauss 1925: 125)

Mauss here suggests that the idea of “natural right” is little more than a fiction; the quintessential “natural right,” of course, is the property one has in himself. Mauss is, in The Gift, undercutting this right, as is clear from his debunking of the distinction between real law and personal law, i.e., the distinction between things and persons. And as we have seen, for Mauss the site where such distinctions fall away is the nexum, through which one is, with his “things,” “sold.”

This point is not just about self-ownership but also about agency. If Mauss and Hubert, in Magic, had put their hopes for the individual’s escape from society’s authority in magic—and in particular, the figure of the magician whom they figured as a bulwark of autonomy—the failure of that project (as recorded in the preface to the Mélanges) led Mauss to conceive the problem anew. In Magic, Mauss and Hubert slid rather imprecisely between the traditional oppositions of liberalism: individual v. society and freedom v. obligation (or, as Mauss and Hubert have it, “autonomy” v. “authority”). Propelled by Magic’s failure to solve the problem as set in those terms, Mauss reconceives it in The Gift: the pathology of modern social arrangements is not that they lie on the wrong side of the freedom/obligation binary but rather in the binary itself. Completely unencumbered agency comes to be seen not as a desideratum but rather as a fantasy representing the flipside of authority.

The Gift recasts obligation: rather than reflecting asymmetrical relations of authority, it materializes symmetrical relations of mutuality. This carries in its train a mode of agency that is defined not by eluding obligation but as constituted by it. Mauss’ critique of the chimera of the autonomous agent is not particularly novel to us; his vision of exchange as the locus of that critique is perhaps more interesting. The implicit contention is that if only we attend carefully to the exchanges that we all undertake everyday—if only we attend to things—we will see how a nonhierarchical, nonauthoritarian sociality can be conceived. If we conceive society as comprised of things together with people, we will see in gift exchange our conditioning by a field of forces determined by things as much as by people, determining people as much as things. More importantly, Mauss suggests, we will see in that conditioning, rather than “un-freedom,” the mutuality appropriate to sociality.

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La “force dans la chose”: La socialité non-autoritariste de Mauss dans Essai sur le don

Résumé : Dans cet essai, je défends l’idée que l’Essai sur le don a été mal interprété depuis sa célèbre introduction écrite par Claude Lévi-Strauss. Le paradigme que Mauss développe pour comprendre l’échange de dons provient du droit romain, plutôt que de la notion maori de hau (l’esprit du donataire du don). A partir de réflexions sur diverses institutions juridiques romaines, Mauss déduit les idées que l’obligation peut être établie à travers un simple rituel, que certaines choses font partie de la famille, et plus encore, que les individus sont constamment en train de se vendre et de se racheter par l’échange. Je montre que Mauss projette sur un passé noncapitaliste une socialité alternative sans dimension verticale: elle est constitutée d›un réseau de relations horizontales générées par l’échange rituel.

 

Stephanie FRANK received her MPhil in Philosophical Theology from Oxford University and her PhD in the History of Religions from the University of Chicago. She has published broadly on problematics of secularization ranging from the political theory of representation to the founding of French sociology. She teaches at Columbia College Chicago, where she has created the institution’s first curriculum in the study of religion.

Stephanie Frank
Department of Humanities, History, and Social Sciences
Columbia College Chicago
600 S Michigan Ave.
Chicago, IL 60605
sfrank@colum.edu

___________________

1. The manuscript of The Gift shows that the italics were a late addition, as was the sentence break between these questions and what preceded them, which suggests that Mauss intended for the questions to have all the gravity they have taken on.

2. Translations from The Gift are my own.

3. The only major treatment of The Gift before Lévi-Strauss was that of Raymond Firth, who considered Mauss merely to assign hau the status of “one of the fundamental clues to the whole principle of reciprocity”—not that of explanans (Firth 1959: 418).

4. This constitutes a complement to recent work emphasizing Mauss’ political commitments, and in particular, his socialist writings. See, for instance, Graeber (2001).

5. Mauss and Hubert’s language of the individual’s sensation of “powers that overcome him and incite him to act” anticipates very precisely the language Durkheim would eventually use in Formes Élémentaires for religious sentiment.

6. See Durkheim’s important (and understudied) lectures published as “La Religion” (1907).

7. Keith Hart (2007) has linked Mauss’ essay to Durkheim’s earlier consideration of the “non-contractual element of contract,” but (without detracting from Hart’s work) I would emphasize the disjunct between Durkheim and Mauss on the question of authority.

8. Compare with Durkheim’s treatment of mana at the root of political authority in Elementary forms (1912).

9. Annette Weiner (1992) drew attention to the opacity of the phrase years ago, but this attention did not issue in clearer translations. In her translation, Jane Guyer has “a sort of immovable property, fixed according to their destination”; W. D. Halls, “fixed property—immovable because of their destination” (For Guyer, see Mauss 2015: 68; For Halls, see Mauss 1990: 13).

10. The relevant section (“Institutiones”) of Justinian’s Corpus Civilis Juris was in turn drawn from Gaius’ Institutes, Mauss’ major source in chapter three of The Gift.

11. “Res manicipi therefore originally consisted of the important objects of a man’s household, i.e., those things identified with himself, as his land, the house on it, his wife, children, slaves, and beasts of burden, and this list never increased, though instruments of cultivation if incorporated for perpetual use with the land were held to be mancipi, otherwise not” (Mears 1876: 83).

12. Here Mauss frames his project in the terms he set out in the introduction, where he positioned his text as a successor to Davy’s La Foi Jurée (1922), which similarly described a narrative of progress.

13. Huvelin also ridicules Pflüger for maintaining that historians have overstated the extent of the dominance of patricians because nexum was insufficiently capitalist to support such domination. (“Mais le mutuum est-il un procédé de crédit ‘capitalistique?’” Huvelin bristles.) He also uses the rhetoric of “le capitaliste” vis-à-vis the theory-making sense of per aes et libram in terms of the prehistory of currency (thus the weighing, etc.).

14. This is related to the question of whether there were two meanings of nexum (one for debt-slavery and one for contract of sale). Huvelin was very embroiled in these debates, which he chronicled laboriously for the Année. See Huvelin 1905 and Huvelin 1909.

15. Similarly, in Mauss’ hands, the emptio venditio—the Roman equivalent of our contract as meeting of wills, distinguished exactly by the withering of the ritual surrounding it—becomes (implausibly) a twofold transaction (Mauss 1925: 138).

16. Festus reads merely: “Nexum est, ut ait Gallus Aelius quodcunque per aes et libram geritur, idque necti dicitur, quo in genere sunt haec: testamenti factio nexi datio nexi liberatio.” The scholarly consensus seems to be that Aelius Gallus was not talking about the institution of nexum whereby a person sold himself as security for a debt but rather of the word nexum in the context of res nexa—things promised. See, for instance, James Muirhead: “In reading [Aelius Gallus et al.] it must be kept in view that they are not speaking of a person making himself nexus by copper and scales—for that practice was abolished by the Poetilian law of 428, but of a thing being bonded in that way. The phrase res nexa is quite common in the classical law, as applied to something impledged or hypothecated to a creditor” (Muirhead 1899: 415). See also Niebuhr (1828, vol. I: 508).

17. Hubert Felix Jolowicz has a helpful treatment of different approaches to this question; the preferred interpretation seems to have been that the familia/pecunia distinction related to things integral to the functioning of the household and things that were not, whereas the mancipi/nec mancipi distinction was thought to correspond roughly to the two major categories of property—slaves and livestock (Jolowicz and Nicholas 1972: 139–40). The foremost legal scholar who advanced the claim that these two distinctions were one and the same was Rudolf von Jhering, but Jhering is as silent as is Mauss on his rationale (Jhering 1894: 34–37).