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The Triumph of Venus
 PHILOSOPHY, SOCIA L THEORY, AND THE RULE OF L AW

General Editors
Andrew Arato, Seyla Benhabib, Ferenc Fehér, William Forbath, Agnes Heller,
Arthur Jacobson, and Michel Rosenfeld

1. William Rehg, Insight and Solidarity: A Study in the Discourse Ethics

of Jürgen Habermas
2. Alan Brudner, The Unity of the Common Law: Studies in
Hegelian Jurisprudence
3. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law
4. Michel Rosenfeld, Just Interpretations: Law between Ethics and Politics
5. Jeanne Lorraine Schroeder, The Vestal and the Fasces: Hegel, Lacan, Property,
and the Feminine
6. Michel Rosenfeld and Andrew Arato, editors, Habermas on Law and
Democracy: Critical Exchanges
7. Desmond Manderson, Songs without Music: Aesthetic Dimensions of
Law and Justice
8. Arthur J. Jacobson and Bernhard Schlink, editors, Weimar: A Jurisprudence
of Crisis
9. Rainer Forst, Contexts of Justice: Political Philosophy Beyond Liberalism and
Communitarianism. Translated by John M. M. Farrell.
10. Jeanne Lorraine Schroeder, The Triumph of Venus: The Erotics of the Market
The Triumph of Venus
The Erotics of the Market

Jeanne Lorraine Schroeder

UNIV ERSITY OF CA LIFORNIA PRESS

Berkeley Los Angeles London
University of California Press
Berkeley and Los Angeles, California
University of California Press, Ltd.
London, England
© 2004 by the Regents of the University of California
Library of Congress Cataloging-in-Publication Data

Schroeder, Jeanne Lorraine.

The triumph of Venus : the erotics of the market / Jeanne Lorraine
Schroeder.
p. cm.—(Philosophy, social theory, and the rule of law ; 10)
Includes bibliographical references and index.
isbn 0–520-23431–6 (cloth : alk. paper)
1. Law and economics—Psychological aspects—Philosophy. 2.
Sociological jusrisprudence. 3. Feminist jurisprudence. 4. Economic
man. 5. Utilitarianism. 6. Romanticism. 7. Erotica. 8. Venus
(Roman deity) I. Title. II. Series.
k487.e3 s38 2004
340’.115—dc21
2003012770

Manufactured in the United States of America

13 12 11 10 09 08 07 06 05 04
10 9 8 7 6 5 4 3 2 1
The paper used in this publication meets the minimum require-
ments of ANSI/NISO Z39.48–1992 (R 1997) (Permanence of Paper).
For my mother
 contents

Introduction: Juno Moneta / 1

1. Pandora’s Amphora: The Eroticism of Contract

and Gift / 7
Prologue: The Myth of Allgifts / 7
The Nature of Gift / 11
Gift as Potlatch / 26
The Eroticism of the Market / 42
Commodification and Relationship / 64
Epilogue: Pandora’s Gift / 81
2. Orpheus’s Desire: The End of the Market / 83
Prologue: Orpheus and Eurydice, Eros and Thanatos / 83
The Desire of Economics / 86
The Perfect Market / 107
Conclusion: The Ideal of the Market as the End of the Market / 138

3. Narcissus’s Death: The Calabresi-Melamed

Trichotomy / 149
Prologue: Narcissus and Echo / 149
Viewing the Cathedral; Seeing the Feminine / 152
Three’s a Crowd: The Trichotomy / 159
Six Hypotheticals / 169
Property / 179
Procedural and Substantive Critiques / 187
Conclusion: The Masculine Phallic Metaphor / 202
4. The Midas Touch: The Lethal Effect of Wealth
Maximization / 205
Prologue: The Golden Touch / 205
Defining Wealth / 208
viii contents

The Denial of Enjoyment / 229

Lacan avec Posner / 240
Epilogue: The Ass’s Ears / 272

5. The Eumenides’ Return: The Founding of Law Through

the Repression of the Feminine / 276
Prologue: The Deus ex Machina / 276
The Erinyes / 281
The Law’s Necessary Repression of the Feminine / 290
Epilogue: The Birth of Venus / 308

index / 313
 Introduction: Juno Moneta
The object of the law and the object of desire are one and the same, and remain
equally concealed.
gilles deleuze 1

There is nothing which so generally strikes the imagination, and engages the
affection of mankind, as the right of property. And yet there are very few, that
will give themselves the trouble to consider the origin and foundation of [prop-
erty]. Pleased as we are with the possession, we seem afraid to look back . . .
as if fearful . . .
william blackstone 2

William Blackstone insisted that property, and therefore market relations, are
driven by desire. This eroticism should not surprise us. Etymology tells us that
money is a woman. The word “money” derives from Juno Moneta. Juno,
queen of heaven, was the Roman goddess of womanhood, the personification
of the feminine. Her title, “Moneta,” means “she who reminds and warns.”
The word “money” reminds us that the feminine is a reminder—a warning.
Nevertheless, the erotic nature of law and markets is deeply repressed in
American culture. We turn away from the primal scene of the passionate ori-
gins of markets with the same embarrassment and shame we experience
when we contemplate our own origins in the parental bed. The ideal of the
perfect market, like the idea of our own conception, is “real” in the Lacan-
ian sense. To look back, to confront the real, is not merely frightening—it is
deadly. And yet there is nothing we desire more. To be a subject is to be
driven by desire. Subjectivity is the triumph of Venus.
In recent years, the study of markets in American jurisprudence has been
expropriated by the self-styled “law-and-economics” movement, the dominant
discourse of private law in America’s most elite law schools. One of its appeals
is that it gives an aura of scientific certainty and objectivity to legal analysis and
normative policymaking. Despite its claim to scientific status, however, this
scholarship is almost entirely devoid of methodological discussion and inter-

1. Gilles Deleuze, Coldness and Cruelty, Masochism 9, 85 ( Jean McNeil trans., 1971).
2. William Blackstone, Two Commentaries on the Laws of England 2 (A. W. Brian Simpson
intro., 1979).

1
2 introduction

nal criticism, as though these matters were uncontroversial. Moreover, the

practitioners of the “science” of law-and-economics rarely engage in empirical
research. Instead, law-and-economics consists of deductions from dogmatic
principles. Consequently, most law-and-economic proposals are classic cases of
GIGO (garbage in—garbage out): nonfalsified theories are applied to
untested assumptions in order to produce nonverifiable conclusions. Law-and-
economics has all of the characteristics of a cult. Nevertheless, although it is
frequently attacked in law reviews, particularly from scholars self-identified
with the critical left, law-and-economics has not only prevailed; it has thrived.
One reason for this is that much of this opposition to law-and-economics has
taken the equally unsatisfactory form of romanticism, a viewpoint that unwit-
tingly repeats the errors of utilitarianism. In this book, I argue that there are
powerful psychoanalytic reasons why law-and-economics, as well as the roman-
tic critique, continue to be so seductive despite their failures.
The legal economist sees market participants, and therefore the market, as
essentially rational. Market participants know their preferences and take appro-
priate action reasonably calculated to maximize their atomistic, individualistic
well-being conceived in terms of either “utility” or “wealth.” Markets are
deemed efficient insofar as they enable rational economic actors collectively to
achieve their goals. Although individual preferences may be irrational, in the
sense of pregiven and subjective, homo oeconomicus is rational, single-minded,
predictable, and objective in the pursuit of these irrational preferences.
The romantic sees the economic vision of human nature as fundamentally
flawed because it ignores, or de-emphasizes, “higher” aspects of human
nature, such as spirituality, empathy, altruism, and so on. Surprisingly, these
“New Age” neoromantics who emphasize the supposedly irrational aspect of
human nature tend to confirm the utilitarian analysis of the market as cold
and rational. Eroticism and other forms of “irrationality” are therefore seen
as essentially different from and usually superior to economic relations.
Their critique, however, remains impotent, precisely because it accepts a
fundamental tenet of the approach they claim to condemn.
Utilitarianism and romanticism are mirror images of each other. They val-
orize opposites but fundamentally agree. They draw diametrically opposed
conclusions from a shared erroneous assumption about law and market rela-
tions. They both assume that market relations are inherently cold, atomistic,
and “rational.” The utilitarian believes that “rationality” is the true essence
of human nature, and therefore analyzes all human relations by analogy with
the market. The romantic, in contrast, believes that human nature is essen-
tially “irrational” in one way or another. Therefore, the market is an aberra-
tion. At best, it is a necessary evil tolerated only insofar as it is limited in
scope, as a means to provide basic physical needs. At worst it is a perversion
that threatens to undermine all human relations and frustrate the achieve-
ment of personhood.
 introduction 3

This book on utilitarianism and romanticism is an encounter with

Hegelian philosophy and Lacanian psychoanalysis, and an exploration of the
erotics of law and the market using metaphors drawn from classical mythol-
ogy. I argue that the utilitarian-romantic analysis of the law and the market
is incorrect for two interrelated reasons. First, Hegelian philosophy shows us
that, far from being anti-erotic, market relations are the most basic and prim-
itive from of eroticism. Meanwhile, Lacanian theory reveals that the femi-
nine is the primal commodity; money is Juno Moneta. Consequently, the util-
itarian is correct in seeing a fundamental similarity between erotic and
economic behavior, but wrong in thinking that the former can be reduced
to the latter. Rather, it is the latter that can be explained in terms of the for-
mer. Venus triumphs over the market. To put this another way, both the util-
itarian and the romantic see desire as external to law. In contradistinction,
the Hegelian and Lacanian, following a Western philosophic tradition reach-
ing back to Aristotelian virtue ethics, posit that law operates at the level of
desire.
Second, the rational-irrational dichotomy adopted equally by utilitarians
and romantics is incompetent. Dialectical reasoning reveals that reason and
passion are not inalterably opposed, but rather two aspects of the same con-
cept. It is true that human beings are rational, as argued by utilitarians. But
rationality represents only the potential of human nature. This potential must
be actualized through desire. Consequently, desire drives human behavior,
as romantics intuit. Through reason, the abstract person comes to understand
that she can only actualize herself through recognition by other subjects—
through love. Therefore, she rationally desires others: logic tells her to give
way to passion. This does not imply, however, that the romantic is correct in
assuming that passion is superior to logic. Rather, even at the ecstatic moment
of jouissance, the subject must preserve a moment of the rationality that makes
desire possible, or submerge her personhood in the abyss.
My goal in this book is to reveal the internal, but repressed, logic of certain
legal and economic concepts. I believe that the law-and-economics paradigm3
drawn from classical price theory is decadent; in the terminology of Imre
Lakatos, it is a degenerating research program.4 I show that several attempts

3. Thomas S. Kuhn, The Structure of Scientific Revolutions (2d. ed. 1970).

4. Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in Criticism
and the Growth of Knowledge 91, 118 (Imre Lakatos & Alan Musgrave eds., 1970). Build-
ing on Karl Popper’s theory of sophisticated falsification, Lakatos argues that scientists do not
reject a scientific theory merely because of the empirical observation of inconsistent data.
Rather they modify the theory by adopting a “protective belt” of auxiliary hypotheses designed
to explain away the apparent anomaly. Eventually, the paradigm (research program) degener-
ates as the protective belt becomes thicker and thicker, and the core paradigm begins to shrink
until it actually starts explaining less. Jeanne L. Schroeder, Abduction From the Seraglio: Feminist
Methodologies and the Logic of Imagination, 70 Tex. L. Rev. 109, 168–71 (1991).
4 introduction

to replace the economic paradigm are mere romanticism—utilitarianism’s

polarized twin. Romanticism in fact adopts utilitarianism’s paradigmatic
assumptions and merely rejects the utilitarian conclusions drawn from them.
I attempt not only to identify the flaws of the research program that are the
source of its degeneration, but also to explain why so many legal academics
nevertheless continue to cling to the research program despite its flaws.
This book has two different aspects, designed for two different audiences.
Part of each chapter explores a concept of legal or economic theory on its
own terms in the language of lawyers and economists. The purpose of this is
to reveal the internal logic and implicit paradoxes of these concepts, so that
lawyers can better understand and use them. I then suggest that an under-
standing of these concepts can be further enriched by adding an external cri-
tique drawn from Lacanian-Hegelian analysis. I argue that Lacanian psy-
choanalysis can help explain why the current paradigm is so alluring despite
its degeneracy.
The former discussion should be of immediate interest to legal scholars
working within a traditional framework. I hope that the latter introduction
to speculative theory may convince at least some readers that such theory is
not merely interesting in and of itself, but potentially useful for legal and eco-
nomic analysis. Indeed, I have found it invaluable as an analytic tool, not
merely in my teaching and doctrinal scholarship, but in the practice of
finance law. In contrast, my discussion of the relationship between Lacan
and Hegel is likely initially to interest feminists and others engaged in criti-
cal theory. I hope that my discussion of law and economics may convince at
least some of these readers that these disciplines are not merely useful tools
of analysis, but are themselves worthy subjects for serious philosophical and
psychological examination.
The one thing this book does not do is make specific policy recommen-
dations for interpreting or changing the law. This book is a sustained critique
of the consequentialist, policy-oriented turn in American legal scholarship.
As a practicing lawyer and a legal scholar, I obviously do not oppose prag-
matic advice or policy making in principle. Indeed, I on occasion engage in
doctrinal scholarship on commercial law, and I discussed certain legal doc-
trines in my earlier book, The Vestal and the Fasces: Hegel, Lacan, Property and
the Fasces.5 One of the primary points I wish to make here, however, is that
legal economists on the one hand and romantic legal scholars on the other
purport to derive policy advice from theories that are analytically insup-
portable. If one wants to use theory to give advice, as these scholars do, one
should first be sure of the validity and internal coherence of one’s theory.
Moreover, following Hegel, I believe that theory can explain the under-
lying logic of social systems only at a very high level of abstraction. Specific

5. University of California Press (1998).

 introduction 5

policy recommendations require practical reasoning.6 Consequently, prag-

matism is the necessary corollary to Hegelian idealism. Although it has
become fashionable for both legal economists and romantics to character-
ize themselves as pragmatists, in fact they rarely engage in the type of
detailed empirical research that would be necessary in order to support
their recommendations. Rather, they base their recommendations on
unsupported assumptions. Consequently, insofar as I have a policy recom-
mendation, it is that legal scholars should be more modest in making policy
recommendations.
Finally, and most importantly, my approach towards critical scholarship
springs from discourse theory.7 In Lacanian terminology, policy-oriented
scholarship, including law-and-economics, speaks within the “university’s dis-
course.”8 In this discourse, the speaker claims the position of the expert with
superior knowledge and addresses the goals and desires of the law. Accord-
ing to Lacan, however, the purpose of this type of scholarship is not a sincere
search for truth. Rather, the hidden truth of the university’s discourse is that
it is a veiled attempt to justify the status quo and exercise power over others.
That is, policy scholarship views law from the position of the governor. The
product of the university’s discourse is the subjects who are subjected to and
manipulated by the law in order to serve the expert’s purposes.
In contrast, the critical scholar, like the practicing lawyer, speaks within
the “hysteric’s discourse”—the “other side” or reverse of the university’s dis-

6. See G. W. F. Hegel, Elements of the Philosophy of Right 21, 81 (Allen W. Wood ed.
& H. B. Nisbet trans., 1991). As such, Hegelianism, properly understood, sails a middle ground
between the pro- and anti-theory movements of contemporary legal academia.
7. For an extended application of Lacanian discourse theory to law, see Jeanne L. Schroeder,
The Four Discourses of Law: A Lacanian Analysis of Legal Practice and Scholarship, 79 Tex. L. Rev. 15
(2000).
In his seventeenth seminar, entitled The Other Side of Psychoanalysis, Lacan proposes that
there are at least four discourses, which may be graphically represented as:
agent → other
truth product / loss
Bruce Fink, The Lacanian Subject: Between Language and Jouissance 131 (1995). The
upper left corner represents the agent who speaks in the discourse. The upper right corner is
the other, that which is addressed or interrogated in the discourse. The arrow between them
indicates the relationship between the two. Beneath and barred from the agent is his hidden
truth. Beneath the other is that which is intentionally or unintentionally produced in the dis-
course. Four terms rotate through these four positions, represented by the mathemes S1 (the
master signifier), S2 (knowledge, or the signifying chain), a (the objet petit a, or object cause of
desire), and /S (split subject). Id. at 123. The meaning of these terms should become apparent
in the following discussions.
8. The university’s discourse is graphically represented as:
S2 → a
 
S1 /S
6 introduction

course.9 The speaker does not position herself as an expert, but rather iden-
tifies with the alienated, split subject produced by the university’s discourse.
The speaker views law from the position of the governed, not the governor.
The hidden truth of this position is not power, as in the university’s dis-
course, but the subjective desires and pain of the speaker herself and of those
with whom the speaker identifies. The hysteric’s discourse is addressed not
to the law’s goals, but to its power—the hidden truth of the university’s dis-
course. If successful, the result of a hysteric’s discourse is knowledge. This is
not, however, the knowledge claimed by the expert who wishes to tell other
people what to do in order to achieve society’s “objective” purposes. Rather,
it is an internal self-knowledge of the speaking subject concerning her rela-
tionship to the law and how to use or change the law for her own subjective
purposes.

9. The hysteric’s discourse is graphically represented as:

/S → S1
 
a S2
Note that the hysteric’s discourse is produced by rotating the university’s discourse 180 degrees
clockwise. I present this analysis in detail in Jeanne L. Schroeder; The Stumbling Block, Freedom,
Rationality and Legal Scholarship, 44 Wm. & Mary Law Review 263 (2002).
 Chapter 1

Pandora’s Amphora
The Eroticism of Contract and Gift 1

PROLOGUE: THE MYTH OF A LLGIFTS

Almost three thousand years ago, Hesiod warned against gifts.2
In ancient times, the titan Forethought (Prometheus) taught mankind
how to cheat the gods out of the profits of sacrifice.3 Later, when Zeus pun-
ished man by taking away fire,4 Forethought once again cheated the gods, by
restoring fire to man. Zeus, seeking a more effective punishment, decided
to give men a gift “in which they will all delight as they embrace their own
misfortune.”5
Zeus ordered Hephaestus, the divine smith, to forge the first woman. The
goddesses bestowed her with their finest attributes—skill in crafts and weav-

1. An earlier version of this chapter was published as Jeanne L. Schroeder, Pandora’s

Amphora: The Ambiguity of Gift, 46 UCLA L. Rev. 815 (1999).
2. My account is based primarily on Hesiod’s. See Hesiod, Theogony and Works and Days
ll. 47–105, at 38–40, ll. 570–600, at 20–21 (M. L. West trans., Oxford Univ. Press 1988).
3. At the first sacrifice, Forethought divided the carcass of the sacrificial animal into two
parts. Zeus agreed that his choice would be the gods’ portion for all time. Forethought cleverly
placed all of the meat and edible organs in one pile and covered it with the unappealing skin
and stomach. The other pile consisted of the bones, lungs, and other worthless bits, covered with
glistening fat. Although Hesiod incongruously insists that Zeus saw through the ruse, the story
clearly indicates the opposite: Zeus chose the inedible pile. From that day on, the sacrifice was
a ritual feast in which the worshippers ate mankind’s portion. Bound by Zeus’s foolish bargain,
the gods had to be satisfied with the scent of burning fat.
4. Zeus was so furious that he deprived mankind of fire so that we could not cook our por-
tion of the sacrificial victim and thereby benefit from Forethought’s deceit.
5. Id. ll. 58–59, at 38. Forethought was punished by being chained to a mountain, where an
eagle plucked out his liver. Being immortal, Forethought grew a new liver each day. He was
eventually freed by Heracles.

7
8 pandora’s amphora

ing, charm, grace, beauty, fragrance, as well as clothes and jewelry. But there
also were other, less welcome gifts. Aphrodite’s gift of charm came laden
with “painful yearning and consuming obsession.”6 Hermes gave her the
mind and knavish nature of a dog7 and “fashioned lies and wily pretenses”8
in her breast.
The gods named the woman Allgifts (Pandora) because she was the gift of
all the gods, “a calamity for men,”9 a “precipitous, unmanageable trap.”10 They
offered her to Forethought as a wife. Understanding the danger of gifts, Fore-
thought refused her and warned his brother, Afterthought (Epimetheus),
“never to accept a gift from Olympian Zeus but to send it back lest some afflic-
tion befall mortals.”11 Afterthought paid no heed to this advice and accepted
Allgifts. From this union “descended the female sex, a great affliction to mor-
tals as they dwell with their husbands—no fit partners for accursed Poverty, but
only for Plenty.”12
Additional divine gifts compounded these woes. Allgifts was given an
amphora, or storage jar, as her trousseau.13 When Allgifts opened the
amphora, out flew “grievous sicknesses that are deadly to men,” “grim cares,”
and “countless troubles.”14
Hesiod ostensibly presents the gift of Pandora and her amphora as an
unmitigated calamity. A careful reading, however, reveals that the nature of
the gift is ambiguous. First, although this tragic sequence of events was exac-
erbated by Prometheus’s gift of fire, fire itself has been a great boon to man-
kind. Second, although Pandora is described as lying and knavish, she was
not merely charming, graceful, and beautiful, but also highly skilled. Indeed,
the gods themselves “were seized with wonder” when they saw her.15

6. Id. ll. 65–66, at 39.

7. See id. ll. 66–69, at 39. This strange detail reflects the fact that Hermes’ sobriquet was
“Killer of Dogs.” This odd title is explained by the fact that Hermes was not only the messenger
of the gods but also the god of thieves. As both divine thief and mailman, he was the bane of
watchdogs. Presumably, Hermes used the soul of one of his canine victims to animate Allgifts.
8. Id. ll. 77–78, at 39.
9. Id. ll. 81–83, at 39.
10. Id. ll. 84–85, at 39.
11. Id. ll. 89–91, at 39.
12. Id. ll. 591–93, at 20.
13. We can thank Erasmus for the familiar mistranslation “Pandora’s box.” See M. L. West,
Introduction to Theogony and Works and Days, supra note 2, at vii, xiv.
14. Hesiod, supra note 2, ll. 92–94, at 39–40. Although Pandora was the mother of all man-
kind and brought mortality to the world, one should not Christianize this myth by making Pan-
dora into a form of Eve. Eve was forbidden to eat of the Tree of the Knowledge of Good and Evil
and was driven out of the Garden for her sins of disobedience and pride. Pandora was never for-
bidden from opening the amphora. Rather, the jar was given as a wedding gift with the expec-
tation that it would be opened.
15. Id. l. 589, at 20.
 pandora’s amphora 9

Third, while Hesiod describes women as afflictions,16 he reluctantly

admits that “a good wife who is sound and sensible” will save a man from the
misery of a lonely old age and assure that upon his death his wealth will
descend to his children, and that his distant relatives will not be laughing
heirs.17 Moreover, Hesiod’s inference that Pandora was an unproductive
burden contradicts his earlier statement that she had been instructed in
crafts and weaving by Athena.
Fourth, by making Pandora literally a bitch, Hesiod intentionally invoked
the cunning and voracious nature of dogs. But he also unwittingly implied
that woman is the most loving and faithful of all creatures—man’s best
friend.
Finally and most importantly, although Hesiod blames Pandora for releas-
ing all of mankind’s ills, she must be thanked for preserving our greatest
treasure. “Hope remained there inside in her secure dwelling, under the lip
of the jar, and did not fly out, because the woman put the lid back in time.”18
In order for mankind to obtain the inestimable gift of hope, it was necessary
for us first to experience the pain that makes hope necessary. The feminine
is both the cause of desire and its object.
The lesson of this myth is that gifts are ambiguous. The gifts of the gods
were given neither out of altruism nor out of affection. They were an aggres-
sive, punitive attempt to reestablish godly superiority over mankind. Never-
theless, despite divine malice, the gifts brought great joy in addition to great
suffering. In any event, the relationship established by such divine gifts can
only be that of hierarchy. Men can curse or bless the Greek gods, submit to
them or rebel, but not love them as equals or aspire to become like them.
In this chapter, I explore the nature of gift. The scope of this chapter is
very specific. Much scholarship on gift promiscuously lumps together a vari-
ety of gratuitous transfers—including personal gifts, testamentary bequests,
and public charity—along with a variety of altruistic behavior, such as “dona-
tions” of blood, organs, and time. This approach assumes, but does not
demonstrate, a shared essence among these different practices, customs, and
institutions. This can lead to flawed conclusions.
I believe, in contradistinction, that each of these different forms of
human relations must be analyzed on its own terms. Only then can we

16. He compares women to drones idly consuming the fruits of productive bee-men’s
labors. See id. ll. 593–610, at 20–21. Science, of course, reverses Hesiod’s sexual stereotype.
Worker bees are all female; the drones are the only males in the hive.
17. See id. ll. 611–16, at 21.
18. Id. ll. 96–98, at 39–40. Hesiod tries to rob Pandora of her well-deserved credit by stating
that she closed the jar “by the providence of Zeus.” Id. ll. 96–99, at 39–40. But by this standard,
she should also be acquitted of responsibility for releasing the ills when she innocently opened
the wedding gift given to her by the deceitful gods.
10 pandora’s amphora

identify essential similarities and differences, and make appropriate moral,

ethical, political, and legal judgments. Hegel argues that the particular
altruism that characterizes family relationships must be distinguished from
the universal altruism that characterizes the relationship of citizens in the
modern constitutional state.19 Moreover, the judgment that particular and
universal altruism are appropriately allocated to the family and the state,
respectively, in no way suggests that the particular egoism of the state of
nature or the universal egoism of the market (i.e., civil society) should be dis-
paraged, so long as they are relegated to appropriate spheres of society.
Rather, egoism complements altruism as an equally true and necessary
moment of human nature.
Consequently, I limit the scope of this chapter in two ways. First, I only
analyze one category of gratuitous transfers: “gift,” as understood in the
everyday, literal sense of one identified individual personally giving an
object of desire directly to another identified individual. I do not use the
term expansively or metaphorically to include all forms of altruism, such as
the care given by the nurse to the afflicted or the sacrifice made by the sol-
dier for his country. Nor do I refer to anonymous or public charity. Indeed,
I challenge the unexamined assumptions that gifts are always, or even usu-
ally, altruistic in nature.
Second, I only analyze the nature of gift and do not set forth an exegesis,
analysis, or critique of the existing substantive law of gift or a comprehensive
survey of the considerable literature on the subject.20 I only mention in pass-
ing one of the most important substantive legal issues governing gifts that is
discussed in the literature—namely, the different treatment of completed
gifts (donative transfers) and executory gifts (gratuitous promises). Although
I offer a principled argument concerning another closely related and fre-
quently debated issue (whether there is a meaningful distinction between
contractual and gratuitous promises), I suggest neither a simple test for char-
acterizing specific promises as an empirical matter nor any other specific leg-
islative proposal.
As a Hegelian, I do not believe that philosophy alone can legitimately be
used to justify positive legislation. Positive law is the bailiwick of practical, not
logical, reasoning.21 This is necessitated by the Hegelian doctrine that the

19. See Shlomo Avineri, Hegel’s Theory of the Modern State 134 (1972).
20. For a useful survey of the copious literature on the law of gift, see Melvin Aron Eisenberg,
The World of Contract and the World of Gift, 85 Cal. L. Rev. 821 (1997).
21. See G. W. F. Hegel, Elements of the Philosophy of Right 41, 81 (Allen W. Wood ed.
& H. B. Nisbet trans., Cambridge Univ. Press 1991)[hereinafter, Hegel, The Philosophy of
Right]. A good example of confusing the logical process of jurisprudential analysis with the
pragmatic problem of rule making can be seen in Jane Baron’s analysis of gifts. In her comment
on Carol M. Rose’s paper, Giving, Trading, Thieving, and Trusting: How and Why Gifts Become
Exchanges, and (More Importantly) Vice Versa, 44 Fla. L. Rev. 295 (1992), Baron concludes from
 pandora’s amphora 11

essence of human nature is radical freedom. If determinative logic dictated

all aspects of human behavior, then we would be bound, not free.22 The orga-
nization of human relations must therefore always reflect a fundamental
moment of subjectivity—i.e., judgment. This means that idealism always
requires pragmatism as its corollary.
Philosophy, however, is by no means irrelevant to law. Indeed, it serves a
crucial function. Philosophy is a means of identifying and analyzing those
abstract moral and ethical ideals—such as the nature of human personhood,
freedom, and relationship—that the lawyer, legislator, and judge need to
consider in making pragmatic decisions as to the concrete legal rules that
are needed to produce a just society.
Consequently, my goal is to set forth a coherent account of the roles
played by gift and contract in the creation of legal and psychoanalytic sub-
jectivity and the creation of the regime of abstract right (i.e., private law, the
market). I argue that subjectivity, contract, and law are mutually constitut-
ing. Gift is a failed attempt at the creation of legal subjectivity. Gift is there-
fore of questionable legal status in the private-law regime of abstract right,
although it might have other, nonlegal justifications in the regimes of moral-
ity and ethics and the institutions of the family and the state. This analysis
reveals that there is, therefore, some implicit philosophic logic underlying
American law’s traditional solicitude towards contract and suspicion of gift.

THE NATURE OF GIFT

The average person probably thinks of gifts as untrammeled good. Many
legal theorists adopt this prejudice and assume that gift relationships are

the observation that empirical relations often cannot be neatly fit into the two categories of gift
and contracts, but fall somewhere in between, that the categories themselves are incoherent.
Jane B. Baron, Do We Believe in Generosity?: Reflections on the Relationship Between Gifts and
Exchanges, 44 U. Fla. L. Rev. 355, 357 (1992) [hereinafter, Baron, Generosity]. The implication
she seems to draw from this is that gratuitous promises should be enforced like contract. See
generally Jane Baron, Gifts, Bargains, and Form, 64 Ind. L. J. 155 (1988–1989) [hereinafter,
Baron, Gifts].
To be more accurate, Baron does not clearly state her conclusions. I infer that Baron believes
that gratuitous promises should be enforceable based on her argument that gift and contract
share the same essential aspect of exchange, her assertion that attempts to justify law’s differ-
ential treatment of contract and gift are unsuccessful, and her conclusion that for society not
to enforce gratuitous promises would be a denigration of generosity.
Baron incorrectly suggests that the fact that the distinction between gift and contract is quan-
titative as an empirical matter (i.e., concrete real-life events fall over a continuum between
abstract legal categories) means that the two categories are not qualitatively different as a logi-
cal matter. Lawyers and judges often deal with the practical problems of line drawing and the
legal characterization of the messy facts of life.
22. See Richard Hyland, Hegel: A User’s Manual, 10 Cardozo L. Rev. 1735, 1741 (1989).
12 pandora’s amphora

morally superior to contracts and market relationships. In this view, gift is

seen as erotic and creative23 in contrast to the cold sterility of contract.24 Nev-
ertheless, the law is notoriously suspicious of gifts, giving them less protection
than contracts. In the words of one legal scholar:
The law discriminates between gifts and exchanges in odd and interesting ways.
A promisee can sue to enforce an ordinary commercial promise, but not a
promise to give a gift. Creditors can force a donee to disgorge gifts received
from insolvent debtors, but they cannot usually force a purchaser to disgorge
goods purchased from insolvent debtors. In England and the United States, dis-
inherited spouses can sometimes reverse inter vivos gifts that diminish their
statutory share of the estate; in civil jurisdictions, disinherited spouses and chil-
dren can do this routinely. But in none of these places can disinherited rela-
tives reverse commercial exchanges that have diminished the value of the
estate.25

Most notably, the formalities for an enforceable contract—offer, acceptance,

consideration, and, in some circumstances, the statute of frauds—are mini-
mal and flexible. In contrast, to be enforceable, gratuitous promises must
frequently comply with complex formalities.26

23. See, e.g., Lewis Hyde, The Gift: Imagination and the Erotic Life of Property
(1983).
24. See Blake D. Morant, The Teachings of Dr. Martin Luther King, Jr. and Contract Theory: An
Intriguing Comparison, 50 Ala. L. Rev. 63 (1998).
25. Eric A. Posner, Altruism, Status, and Trust in the Law of Gifts and Gratuitous Promises, 1997
Wis. L. Rev. 567, 567.
In the words of Eisenberg, “An important general principle of contract law is that a dona-
tive promise—a promise to make a gift—is not legally enforceable simply because it is a prom-
ise, although certain kinds of donative promises are enforceable under special principles, like
reliance.” Eisenberg, supra note 20, at 821–22.
Although his point is well taken, Eric Posner’s language is unfortunately colloquial for a law
review article in that he distinguishes between donees and purchasers. Although a lay person
uses the terms “purchaser” and “buyer” interchangeably, the law does not. “Purchaser” is a
broad term of art that includes anyone who takes title in a voluntary transaction. See, e.g., U.C.C.
1–201(32)–(33) (1999), 11 U.S.C. 101 (43) (West 1998).
Consequently, a more accurate statement of the law of fraudulent transfers and conveyances
is that in some circumstances creditors may void a transfer of debtor property when the pur-
chaser has not paid fair consideration. Of course, a person who receives something for nothing
is normally considered the donee of a gift, but many fraudulent transfers and conveyances are
in the form of sales in which the “buyer” pays something but not enough. Other forms of eco-
nomic relations that do not fall within the usual rubric of gifts (such as dividends paid to stock-
holders of an insolvent corporation) can also be fraudulent conveyances.
26. As Baron states, “Thus, with respect to gifts, where the primary legal goal is to effectu-
ate donative intent, formalities are said to be required to put that intent beyond question. In
contrast, with regard to contracts, where the primary legal goal is protection of expectations and
security of transactions, consideration is said to be required to mark off those promises cus-
tomarily understood, in a market economy, to be binding.” Baron, Gifts, supra note 21, at 156.
 pandora’s amphora 13

I argue that this apparent disjunction between society’s stated values and
legal norms is not an aporia, but a reflection of gift’s fundamentally ambigu-
ous nature. Gift may pass as the generous act of the donor, but it always also
includes an implicitly aggressive moment whereby the donor achieves dom-
inance over the donee. In contrast, contract, not gift, reflects the true love
relationship in its most rudimentary and primitive form. Indeed, as I discuss,
contract is hysterically erotic in the technical sense.
Moreover, contract does not necessarily repress altruism. Contract helps
to establish the conditions of equality and mutuality that are necessary for
the particular altruism necessary for the companionable family, as well as the
general altruism necessary for the constitutional state. If gift is a necessary
human relationship, it is not despite but because of its ambiguity.
In this chapter, I first introduce the polar extremes of the legal analysis of
gift.27 For convenience, I call these the “utilitarian” and the “romantic”
views. I am well aware that relatively few scholars, if any, are purists. Most fall
somewhere in between. Nevertheless, despite the fact that actual theoretical
positions tend to form a continuum between them, identifying the possible
extremes serves a valid analytical purpose. In Hegelian terminology, there is
a fundamental “qualitative” difference between the utilitarian and romantic
positions, even though the distinctions between them are “quantitative” in
nature.28 I shall use Judge Richard Posner and his offspring, Eric Posner, as

Of course, to say that the law is suspicious of gratuitous promises is not to say that they are never
enforceable. Rather, in form, the default rule tends to be that gratuitous promises are not
enforced unless the claimant establishes the appropriate exception to the default rule. Some
contemporary analysts have suggested that such exceptions are in fact so frequent that the
empirical norm is that gratuitous promises are in fact enforceable. For a critical discussion of
this strain of “Third Wave” gift jurisprudence, see Eisenberg, supra note 20.
27. Eisenberg has similarly noted a split, which he dubs the “Second” and “Third Waves” of
gift scholarship. He describes the history of modern gift scholarship in terms of three waves. See
Eisenberg, supra note 20, at 825–31. “Classical contract law theorists made the mistake of think-
ing that legal rules could be justified simply on doctrinal grounds.” Id. at 825.
The “First Wave” of criticism, associated with Lon Fuller, argued that the substantive law of gift
could be justified on both formal and substantive grounds. Id. at 827 (quoting Lon L. Fuller, Con-
sideration and Form, 41 Colum. L. Rev. 799, 815 (1941) (footnote omitted) (citation omitted)).
The “Second Wave” of scholarship, which began in the late 1970s and early 1980s was loosely
linked by an analysis of the relative costs and benefits to both the parties and society of enforce-
ment. The “law-and-economics,” or what I call the “utilitarian,” position would fall within Eisen-
berg’s Second Wave.
The “Third Wave” of scholarship, which began in the late 1980s, “argues that simple dona-
tive promises should be enforceable.” Id. at 831. What I call the “romantic” view generally falls
within this last wave.
28. I introduced the relation between quality and quantity in Jeanne L. Schroeder, Never Jam
To-day: On the Impossibility of Takings Jurisprudence, 84 Georgetown L. J. 1531 (1996) [hereafter,
Schroeder, Never Jam To-day] and discuss it in more detail in Chapter 4.
14 pandora’s amphora

proxies for the utilitarian position, and Lewis Hyde and Margaret Jane
Radin as spokespersons for the romantic position.29
The legal utilitarian, who views all human relations in terms of individual
self-interest,30 analyzes gift as a primitive, incomplete, imperfect, and inferior
form of contract, in the sense that both are essentially economic transactions
intended to increase the utility or wealth of the donor.31 The legal system
should therefore concentrate on facilitating the more complete and efficient
form of contract rather than encouraging and protecting gifts.32
In contrast, the romantic, who believes that human relations can and
should be based on altruism, sees gift as being not merely different from, but
superior to, the market regime of contract.33 Consequently, the law should

29. In this chapter, when I use the family name “Posner” standing alone I refer to the father
(Richard). No doubt both Posner and Radin will object to my terminology. As I discuss briefly
in this chapter, Posner has traditionally characterized himself as a “wealth maximizer,” although
he has more recently called himself a “pragmatist.” Posner, Overcoming Law 4–21
(1995)[hereinafter, Posner, Overcoming Law]. Radin also self-styles herself a “pragmatist.”
See, e.g., Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1856, 1883 (1987)
[hereinafter, Radin, Market-Inalienability]. Nevertheless, I hold to my characterization of their
theories as “utilitarian” and “romantic,” within the sense of those terms used in this chapter. I
discuss Posner’s distinction between wealth maximization and utilitarianism in Chapter 4.
30. This is the assumption usually made within the law-and-economics movement, although,
as discussed in Chapter 4, a true utilitarian must in fact be radically communitarian.
31. For example, Allan Farnsworth asserts that today “those who make them [i.e., the most
significant gifts] are not motivated solely or even primarily by altruism.” E. Allan Farnsworth,
Promises to Make Gifts, 43 Am. J. Comp. L. 359, 359 (1995). Some legal scholars who do not take
a hard-line utilitarian position have come to recognize this aspect of gift. For example, Melanie
Leslie states, “Even when promises are not part of an express bargain, they are seldom purely
gratuitous.” Melanie Leslie, Enforcing Family Promises: Reliance, Reciprocity, and Relational Contract,
77 N.C. L. Rev. 551, 554 (1999).
Despite this, many law-and-economics scholars do not have the courage of their wealth-
maximization convictions. For example, Eric Posner asserts that “law and economics literature,
almost exclusively, assumes that altruism is the sole motive of gift-giving.” E. Posner, supra note
25, at 567–68.
32. For example, Eric Posner states, “Taken together, the arguments in their strongest form
suggest that courts should not enforce gratuitous promises as routinely as they enforce com-
mercial promises. This conclusion is based on the following propositions: (1) that status-
enhancing and ‘exchange gift’ promises should not be enforced, even if altruistic and ‘signal-
ing’ promises should sometimes (but not always) be enforced; (2) that altruistic and signaling
promises, when they are enforced, should result in lower levels of damages than should non-
gratuitous promises; (3) that courts cannot reliably distinguish the different kinds of gratuitous
promises; (4) that given a set of commercial promises and gratuitous promises that do not vio-
late standard policy restrictions, such as the policy against price-fixing or against coercion, the
commercial promises are likely to be more socially valuable than are the gratuitous promises.”
Id. at 608.
33. As Eisenberg states, a gift is “made[]for affective reasons like love, affection, friendship,
comradeship, or gratitude, or to satisfy moral duties or aspirations like benevolence or generos-
 pandora’s amphora 15

give special solicitude to gifts and discourage or prohibit contracts concern-

ing at least some forms of property.34
Because proponents of both the utilitarian and romantic positions rely to
some extent on anthropological studies of “archaic” societies that are orga-
nized around systems of “gift exchange,” as opposed to our norm of con-
tract, I turn briefly to these studies. I will show that neither school of
thought accurately describes these institutions. Rather, they choose to dis-
cuss only those aspects of these societies that superficially support their pre-
suppositions and suppress those that are inconvenient. I suggest that the
institution of potlatch—gift as war—is not a perversion of gift, but rather its
epitome.
I then present in detail a Hegelian-Lacanian analysis of contract and gift
to show that both the utilitarian and romantic views are partially correct and
partially incorrect, but in precisely opposite ways. Indeed, utilitarianism and
romanticism are mirror images of each other.
Both utilitarians and romantics start from the same misconceptions of the
nature of contract and commodification. They agree that contract is based
on coldly rational considerations of narrow self-interest. They further agree
that contract leads to the commodification of goods in the market and that
commodification makes objects indistinguishable and subjects indifferent.
The two schools merely disagree on valorization. The utilitarian, who cham-

ity, and which is not expressly conditioned on a reciprocal exchange.” Eisenberg, supra note 20,
at 823.
34. For example, Radin would place a variety of restraints on contractual (i.e., market)
alienation of those objects that she identifies as “personal property” on the grounds that such
“commodification” of “personal property” is destructive of personhood. In contrast, she would
continue to permit gratuitous transfers of such objects on the grounds that gifts are conducive
to constructive human relations.
As I have said, many, or most, scholars fall between these two poles. For example, Eisenberg
and Baron share the romantic view of gift, but come to strikingly different legal conclusions. As
a contract scholar, Eisenberg defends the (utilitarian) conclusion that the law’s differential
treatment of contract and gift is justified, but rejects the utilitarian premise that gift is an imper-
fect form of contract. Rather, he maintains that the gift relation is not merely morally superior
to contract specifically, but also to law generally. Submitting gift to law, therefore, would have
a deleterious affect on gift. Eisenberg, supra note 20, at 823.
In contrast, Baron takes the romantic position that gratuitous promises are morally superior
to contract and therefore should be at least as enforceable as contract. To justify this, however,
she feels she must agree with the utilitarian position that there is no essential difference between
gift and contract. She therefore straddles the uncomfortable fence between arguing that gifts
should be enforced because they are different from contract, and that gifts should be enforced
because they cannot be distinguished from contract. For example, Baron criticizes society’s
refusal to grant blanket enforcement of gratuitous promises as a denigration of the virtue of
generosity, while simultaneously arguing that gift, like contract, is a matter of exchange. See
Baron, Generosity, supra note 21.
16 pandora’s amphora

pions rationality and indifference, reduces gift to contract—a form of com-

modification. The romantic, who cherishes intuition and difference, distin-
guishes gift from contract.35
In contrast, I argue that, far from being characterized solely by the cold
calculation of self-interest, markets are erotic in the Hegelian-Lacanian
sense that they are driven by the desire for recognition.36 Contract, being
mutual, reflects the true love relation in which recognition is freely granted
and received by equals.37 Gift, being unilateral, reflects the failed attempt
at a forced relation between unequals, which Hegel describes in his famed
lord and bondsman dialectic. In gift, recognition is demanded but not
granted. Gift is not free, but imposes obligations on the donee without her
consent. In other words, if the romantic is correct that gift relations are
erotic, it is not the shared, voluntary eroticism of love, but a combination

35. Baron is an exception in that she tries to defend gift in part by arguing that the tradi-
tional distinction between gift and contract is incoherent: gift as well as contract is often implic-
itly reciprocal, and, as an empirical matter, one cannot draw a bright-line distinction between
actual gratuitous and gift relations. Baron, Gifts, supra note 21, at 157.
To a Hegelian, the fact that the differences between two concepts are quantitative in nature
(i.e., actual, concrete examples of the categories fall within a continuum) does not mean that
the concepts are not qualitatively different. Baron, in fact, implicitly recognizes this. After argu-
ing that the law’s distinction between contract and gift cannot be rationally maintained, she
nevertheless asserts the uniqueness, and perhaps moral superiority, of some form of gift rela-
tions.
36. Rose is one of the few writers on gift and contract who show any recognition of the affec-
tive aspect of contract, albeit from a different theoretical perspective than mine. In support of
her argument that the categories of gift and contract tend to “leak” into each other, Rose does
not merely make the usual assertion that gifts, like contract, involve exchange and selfishness.
See Rose, supra note 21, at 302–08. She also maintains that contract behavior cannot be totally
explained by the utilitarian assumptions of atomistic self-interest. Contract, like gift, necessar-
ily requires an element of trust and altruism. See id. at 308–13.
37. As Michel Rosenfeld writes, contrasting, as I do, the more full recognition achieved in
contract and the partial recognition achieved in the lord-bondsman dialectic:
Self-consciousness’ desire for recognition can only be satisfied by another self-con-
sciousness, through mutual recognition. Moreover, an optimal way to bring about gen-
uine mutual recognition is through love. Indeed, in love each self-consciousness rec-
ognizes the other without attempting to reduce it to being a mere reflection of itself.
In other words, in love both self-consciousnesses are united in mutual recognition, but
each is able to preserve its individuality and freedom in the course of its union with the
other.
Michel Rosenfeld, Hegel and the Dialectics of Contract, 10 Cardozo L. Rev. 1199, 1221 (1989).
Rosenfeld differs slightly from me in that he sees contract as a more abstract form of mutual
recognition among strangers necessitated because “in a large society all social relationships
cannot be founded on love.” Id. In contradistinction, I concentrate on the shared moment of
mutuality in love and contract, as well as a Lacanian understanding of the eroticism of recog-
nition, to argue that the recognition of contract should be seen as a primitive form of love.
 pandora’s amphora 17

of the solipsistic eroticism of masturbation and the violent, forced eroticism

of rape.
Consequently, 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 recog-
nizing 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.
I then turn to the misconception of the nature of contract and commod-
ification shared by utilitarians and romantics. They both assume that com-
modification is the suppression of difference. In fact, it is only in contract
that subjects can first recognize each other as unique, but equal, individuals.
In contradistinction, although gift also establishes a degree of distinction
between persons, this distinction is that of status and not individuality. Gift
establishes relations of superiority and inferiority, envy and fear, not equal-
ity and love.
I next offer a Lacanian analysis of the romantic position, which fears con-
tract and markets as the cause of alienation. Finally, I conclude with a brief
consideration of the necessary role of imperfection and difference, not only
in human relations but also in the structure of the world.

Utilitarianism
Probably the best known proponent of what I call the “utilitarian” analysis of
gift is Richard Posner.38 Posnerian utilitarianism analyzes all human rela-
tionships in the same way it analyzes contracts and markets. In Posner’s
terms, the “economist’s basic analytical tool for studying markets”39 can be
used to study other behavior. “That tool is the assumption that people are
rational maximizers of their satisfactions.”40 Posner rhetorically asks, “Is it
plausible to suppose that people are rational only or mainly when they are
transacting in markets, and not when they are engaged in other activities of

38. Posner considers himself a proponent of “wealth maximization” and tries to separate
himself from utilitarianism. Richard A. Posner, The Economics of Justice 61 (1981) [here-
inafter, Posner, Economics of Justice]. The differences that Posner identifies between utili-
tarianism and wealth maximization do not relate to the analysis of gift. For an excellent critique
of Posner’s attempt to distinguish wealth maximization from utilitarianism, see Robin Grant,
Judge Richard Posner’s Wealth Maximization Principle: Another Form of Utilitarianism?, 10 Cardozo
L. Rev. 815 (1989). I take Posner’s distinctions seriously in Chapter 4.
39. Posner, Economics of Justice, supra note 38, at 1.
40. Id.
18 pandora’s amphora

life, such as marriage and litigation and crime and discrimination and con-
cealment of personal information?”41
Consequently, people make gifts for the same reason they enter into con-
tracts. Gift “creates utility for the promisor over and above the utility to him
of the . . . performance.”42 Accordingly, a utilitarian would apply the same
standard for the enforcement of gratuitous promises as he would contracts.
“Promises should not be enforced where the enforcement cost—to the
extent not borne by the promisor—exceeds the gain from enforcement.”43
Posner thinks that this rationality justifies the current legal regime. Gra-
tuitous promises are generally unenforceable because of society’s “empirical
hunch that gratuitous promises tend both to involve small stakes and to be
made in family settings where there are economically superior alternatives
to legal enforcement.”44 Exceptions to this rule are appropriate when soci-
ety determines that the utility to be gained by enforcing the gift promise is
likely to exceed costs.45
Posner bases his analysis of gifts in part on an examination of the gift-
exchange institutions that characterize many archaic46 societies, both his-
toric and contemporary. His goal is to show that gifts are a more “primitive”
and therefore inferior form of economic exchange. Thus, he needs to
explain gifts in terms of wealth (or utility) maximization.
Not surprisingly, Posner insists that archaic gift should not be thought of
in terms of the modern (romantic) notion of altruism. From a Posnerian
standpoint, the word “gift” is a misnomer insofar as that term carries with it
altruistic baggage.47 Rather, “the gift system is plainly a form of trade in that

41. Id.
42. Richard A. Posner, Gratuitous Promises in Economics and Law, 6 J. Legal Stud. 411, 412
(1977) [hereinafter, Posner, Gratuitous Promises]. In his article, Posner concentrates his analy-
sis on gratuitous promises rather than present gifts. This difference is not relevant to my analy-
sis.
43. Id. at 414.
44. Id. at 417. Of course, this suggests that the rule should be changed if empirical evidence
indicates that this hunch is unfounded.
45. The examples discussed by Posner include past consideration, promises under seal,
charitable pledges, and contract modification. See id. at 418–24. I do not discuss Posner’s spe-
cific arguments because only one of these exceptions (promises under seal) is likely to arise in
the limited class of gratuitous transactions that I include in my definition of gift. Posner thinks
that the legislative abolition of this rule in many states is “a mysterious development from the
standpoint of efficiency.” Id. at 420. This is because the seal requirement “eliminates the major
administrative costs associated with the enforcement of unilateral promises. The formalities and
written character of the promise reduce both the costs of determining the content of the prom-
ise and the probability that the promise was not made or was not intended to be binding.” Id. at
419–20.
46. Posner does not limit his examination to the contemporary archaic societies studied by
anthropologists. He also considers ancient Hellenic society, as described in the Homeric epics.
47. See Posner, Economics of Justice, supra note 38, at 160.
 pandora’s amphora 19

it is explicitly reciprocal.”48 Certain surface differences between modern

markets and archaic gift exchange merely mask a shared essence.
In modern markets, the trading partners exchange different objects,49
contract exchange is simultaneous,50 and prices are usually set by negotia-
tion. Sales contracts are enforced by a highly developed legal system.
In archaic gift exchange, the parties frequently exchange the same or sim-
ilar objects,51 such as ornamental or ceremonial objects. Typically, the recip-
rocal countergift will not be given until some time in the future. Indeed, this
future date may be uncertain, to be determined at the discretion of the
donee/counterdonor or by the demand of the donor/counterdonee.
Gift exchange often lacks explicit pricing. Nevertheless, both the appro-
priate amount and the timing of the return gift are frequently well esta-
blished either by custom or indirect negotiation. Because archaic societies
lack effective government and laws, other mechanisms are used to establish
the countergift obligation, such as social pressure, desire for prestige, fear
of revenge, and so on.
Nevertheless, according to Posner, both contract and gift are essentially
the same, because they are forms of exchange through which the partici-
pants seek to maximize their utility or wealth. The specific difference
between modern contract and archaic gift can be explained by the precise
functions they serve in two very different types of economies. Modern
people engage in contract in order to recognize the productive advantages
of division of labor and specialization.52 Archaic societies do not have the
political or economic organization to permit this degree of specialization.
Consequently, Posner proposes two general functions for gift exchange
in primitive or archaic societies: information gathering and insurance.53 He
discusses the former in detail in the context of the archaic society described
in the Homeric epics and the latter in terms of contemporary archaic soci-
eties. Households have four basic needs: food, shelter, reproduction, and

48. Id. at 136 (citations omitted). This statement is made specifically in his analysis of Home-
ric Greek culture, but this concept underlies Posner’s more general analysis of primitive cultures
in subsequent chapters of The Economics of Justice.
49. See id. at 136, 170.
50. This is true even of executory contracts, in the sense that both parties simultaneously
exchange binding promises.
51. See id.
52. See id. at 136, 160.
53. Posner makes five assumptions about the typical characteristics of archaic economies.
First, there is no effective government. See id. at 151. Second, lack of technical knowledge lim-
its the variety of types and qualities of consumption goods. See id. Third, goods are generally con-
sumed by the group that produces them rather than being traded. See id. at 151–52. Fourth, con-
sumption goods are perishable and must be consumed quickly. See id. at 152. Fifth, various
structural reasons prevent individuals from being able to capture any gains or savings from
innovation. See id.
20 pandora’s amphora

protection against other households.54 In Homeric Greece, each household

was relatively self-sufficient with respect to the first two. Gift exchange,
according to Posner, was designed to fulfill the last two. The incest taboo
required that members of the household’s ruling family marry its children
into distant families.55 In a warrior culture, a household could enhance its
security if it installed some of its members into other households through
marriage or otherwise.56 One of the problems of ancient societies was lack
of communication technology and the resulting lack of knowledge about
those who are not members of one’s immediate kinship group. Gift
exchange was a means of gathering information about strangers in order to
judge the candidacy of potential familial and defensive partners.
If I give you a gold tripod and receive in exchange a coarse blanket, I learn
something about your suitability as an ally or as a father-in-law: if that is all you
have to give me, it probably means you are not a very good fighter, for you
have not been able to collect a store of booty from which to give me a good
present.57

In contemporary archaic societies, according to Posner, gift exchange is

more likely to act as a way of fulfilling the first two types of needs that Posner
identifies (i.e., food and shelter). Because consumption goods are perish-
able in these societies, and because there is no effective contractual insur-
ance, as in modern cultures, archaic peoples set up gift-exchange relations
as a form of “hunger insurance.”58 When consumer goods “are limited in
variety and durability, giving away one’s surplus . . . may be the most useful
thing to do with it.”59 A wealthy man who does not share his excess has “no
use to the other members of the society”60 and might be killed, whereas one
who does engage in this mutually beneficial regime of exchange is held in
high regard.
Both systems of gift exchange are therefore means of wealth or utility
maximization just like contract. The donor makes a gift today in order to
receive beneficial goods or services in the future. In Homeric Greece, the
donors used gift as a means of acquiring wives, as well as familial and military
alliances. In contemporary archaic societies, gifts made in times of plenty are
means of securing support in times of hardship.61 That is, if we moderns

54. See id. at 137.

55. See id.
56. See id.
57. Id.
58. Id. at 153. The most basic insurance institution in Posner’s scheme is the elaborate kin-
ship relations that characterize primitive societies.
59. Id. at 158.
60. Id.
61. See id. at 160.
 pandora’s amphora 21

exchange in order to vary present consumption, archaic man exchanges in

order to even out his consumption over time. This is supposed to explain
why the timing of exchange is not simultaneous in archaic societies.
Eric Posner also offers a utilitarian analysis of the treatment of gift.62 Pos-
ner fils rejects what he thinks of as the more common approach, even among
economists, of assuming that all gifts are altruistic in nature.63 He recognizes
that many so-called “gift” transactions

do call for a return transfer, if only implicitly or by convention: a gift to a friend

often calls for a return gift on a future occasion, or at least expressions of grat-
itude; a gift to a business associate frequently creates the expectation of future
dealings; and a gift to a politician generally requires the politician to show
some favoritism to the donor in return.64

Although he claims to “resist [the] impulse” to “collapse the categories of gift

and exchange,”65 he does analyze gift, like contract, as being primarily a
means of increasing the utility of the donor. Eric Posner proposes three pos-
sible reasons people engage in gifts: to “(1) enhance the well-being of the
donee, (2) increase the status of the donor, or (3) enter or enhance an
exchange relationship.”66
I discuss only his first and third rationales because his second rationale
relates to charity, not personal gifts.67 At first blush, Eric Posner’s first ration-
ale seems to reflect a romantic belief in community rather than utilitarian-
ism. This is incorrect. Like Posner père,68 Posner fils claims not to believe that
the hypothesis of utility or wealth maximization requires that people be nar-
rowly self-interested. A person might feel pleasure in the well-being of her

62. Eric Posner uses the term “gift” more broadly than I do to include a wider variety of gra-
tuitous transfers. He defines “gift” “as a transfer of goods or services by a “donor to a ‘donee,’
where the donee is not required by agreement or convention to transfer something specific
back to the donor in exchange.” E. Posner, supra note 25, at 569. His definition would sweep in
testamentary and charitable transfers.
63. See id. at 567.
64. Id. at 569.
65. Id.
66. Id. at 567.
67. See id. at 588–91. One reason why socialites give extravagant gifts to universities and
other public charities is to gain social prestige. Consequently, these gifts are typically publicly
acknowledged by the recipient by naming buildings and so forth after the donor, honoring the
donor in testimonials, or at least permitting the donor to attend exclusive charity balls. Although
I argue that personal gifts establish the hierarchical relation of status, my point is slightly differ-
ent. Eric Posner is speaking about the donor’s position in society generally. I am arguing that
in gift the donor’s status is increased vis-à-vis the donee specifically.
68. Who believes that a self-interested person may have a “preference” for altruism. See Pos-
ner, Overcoming Law, supra note 29, at 16.
22 pandora’s amphora

family and loved ones (or society generally).69 If so, it can be possible for
someone to increase her own personal utility by increasing the utility of oth-
ers. Although utilitarianism claims to preserve a place for altruism, it does so
only at the expense of redefining altruism from its traditional sense of self-
lessness to a form of self-interest.70
In other words, “through gift-giving, one increases one’s utility by increas-
ing the well-being of someone one cares about (altruism) . . . or by signaling
one’s desire to enter an exchange relationship or by benefitting the other
pursuant to that relationship in anticipation that others will reciprocate.”71
Consequently, gift, like contract, is a form of utility maximization. The prob-
lem is that gift, which lacks explicit bargaining and specificity, is particularly
subject to bargaining failure for a number of reasons.72 The donor may mis-
calculate the desires of the donee, so that the gift’s cost to the donor may out-
weigh the combined utility to the donee and the donor.73 In “impure altru-
istic” gifts, the donor gives the donee what the donor thinks is good for the
donee (such as nutritious food or a college education), rather than what
would really make the donee happy (such as recreational drugs or an expen-
sive sports car), resulting in a decrease in utility for the donee.74 Some “altru-
istic” promises rashly made in an unconsidered, emotional moment may
result in a net decrease in aggregate long-term utility if one considers the
subsequent regrets of the rueful donor, or the potential harm to creditors
and dependents of the donor—as when a prodigal father gives extravagant
gifts to his mistress, thereby reducing his children’s birthright.75 In the case
of gifts intended to enhance relationships, the donee may not understand
why the donor is making the gift and what is expected in return.76 Moreover,
an unscrupulous, opportunistic person may solicit and obtain trust-
enhancing gifts by falsely signaling that she wishes to cooperate and form a
mutually satisfactory relationship with the donor.77

69. Posner, Gratuitous Promises, supra note 42, at 412.

70. E. Posner, supra note 25, at 586.
71. Id. at 582.
72. See id. at 586.
73. Consequently, Joel Waldfogel (perhaps facetiously) estimates that Christmas gifts alone
result in billions of dollars of deadweight lost every year. See Joel Waldfogel, The Deadweight Loss
of Christmas, 83 Am. Econ. Rev. 1328, 1336 (1993).
74. See E. Posner, supra note 25, at 586. The only standard of utilitarianism is supposed to
be the aggregate subjective happiness of society, which is most accurately measured by each
member’s idiosyncratic feelings. Society is not to impose its judgment as to what its members
should want.
75. See id. at 588.
76. “Recipients are never quite sure whether a gift is intended for altruistic or for trust-
enhancing reasons.” Id. at 586.
77. See id. at 586–87.
 pandora’s amphora 23

Eric Posner argues that, on the one hand, gifts are less likely than con-
tracts to result in an increase in aggregate utility. On the other hand, the
failure to enforce gratuitous contracts should be expected to result in less
damages than a failure to enforce contracts. This is because, given the sig-
naling uncertainties surrounding gifts, the parties to gratuitous promises
are less likely to incur substantial costs in reliance than the parties to con-
tracts.78
The implication drawn from this is that if the primary goal of law is wealth
or utility maximization, then gift has an ambiguous role to play in our mod-
ern economy. Because economic efficiency is the goal (or at least one of the
most important goals) of private law, law should offer relatively little support
to gift relations that might interfere with contract relations. Consequently,
Eric Posner argues that executory contracts to make gifts should be relatively
disfavored. Indeed, insofar as gift continues to serve valuable functions in
modern society, these functions are primarily personal and social rather than
economic or legal.79

Romanticism
Perhaps the most sustained, and influential, expression of the romantic posi-
tion is Hyde’s The Gift: Imagination and the Erotic Life of Property.80 Although
Hyde presents his analysis as part of a theory of literary interpretation, his
work is a standard citation for legal scholars undertaking a romantic defense
of gift.
Hyde maintains that gift is erotic in nature.81 Gift is to be contrasted with
contract, which is the expression of reason or logos.82 By this he means that
gift builds lasting relations. It binds people together,83 whereas contract sep-
arates and alienates people.84 If people in market economies are free, this is
so only in the negative sense that they lack bonds to others.85
Gift and contract treat objects differently. In gift exchange, people
develop a unique relation to individual objects, whereas in contract, objects
are commodities.

78. See id. at 596–99.

79. If so, efforts to regulate these gifts by law may actually reduce the value of gifts. See id. at
567. Surprisingly (or perhaps not so surprisingly, given my analysis that romanticism and utili-
tarianism are mirror images), Eisenberg comes to precisely the same conclusion. See Eisenberg,
supra note 20, at 847–49.
80. Hyde, supra note 23.
81. See id. at xiv n.*, 22.
82. See id. at xiv n.*.
83. See id. at xiv, 66.
84. See id. at 67.
85. See id.
24 pandora’s amphora

I would begin the analysis by saying that a commodity has value and a gift does
not. A gift has worth. . . . I mean “worth” to refer to those things we prize and
yet say “you can’t put a price on it.” We derive value, on the other hand, from
the comparison of one thing with another.86

In order for gift to be effective, it is necessary that the donee not retain the
gift. The gift must be kept “in circulation” by one means or another. The
actual object of the gift must either be further gifted to another person,
increasing the circle of relationships,87 or consumed or destroyed.88 Like Pos-
ner, Hyde seeks empirical support for his theory in archaic gift-exchange
institutions. According to Hyde, gifts are dynamic and contract is static. “A
market exchange has an equilibrium or stasis: you pay to balance the scale.
But when you give a gift there is momentum, and the weight shifts from body
to body.”89
Reciprocity is an essential aspect of gift. Gift creates an obligation on the
part of the donee to respond in kind, thereby establishing a continued rela-
tionship between donor and donee.90 The reciprocity of gift differs from con-
tractual exchange in that the former is relational, whereas the latter is oblig-
atory. For example, Radin, a leading romantic in contemporary legal
scholarship, describes the reasoning implicit in Richard Titmuss’s well-
known proposal that the American mixed system of blood donations
(whereby blood is both sold and donated) be replaced with a completely
donative system because “donation fosters altruism.”91
The possibility of reciprocity is also a part of this cementing process, because
a donor’s sense of obligation could be partially founded on the recognition
that she could be a recipient someday. From the recipient’s perspective, it is
said that knowing one is dependent on others’ altruism rather than on one’s
own wealth creates solidarity and interdependence, and that this knowledge of
dependence better preserves and expresses the ideal of sanctity of life.92

Even though gift objects gain value through circulation, they have no
exchange value in the modern sense in that there can be no preset standard

86. Id. at 60.

87. See id. at xiv, 11–19.
88. See id. at 9.
89. Id.
90. See id. at 15–16.
91. See Margaret Jane Radin, Contested Commodities 96 (1996) [hereinafter, Radin,
Contested Commodities]. I only discuss Richard Titmuss in passing in this book because he
concentrates on public charity rather than on personal gift. I question whether the personal
relation of gift can be compared to the public altruism of charity. Kenneth Arrow similarly
chides Titmuss for unreflectively assuming that the two are related. Kenneth J. Arrow, Gifts and
Exchanges, 1 Phil. & Pub. Aff. 341, 360 (1972).
92. Radin, Contested Commodities, supra note 91, at 96.
 pandora’s amphora 25

for the return object. “The equivalence of the counter-gift is left to the
giver.”93 Consequently, there is no express bargaining between donor and
donee over the countergift and “ ‘it cannot be enforced by any kind of coer-
cion.’ If a man gives a second-rate [ritual gift] in return for a fine [ritual gift],
people may talk, but there is nothing anyone can do about it.”94 That is, if
contract is “free” in the negative sense that people are free from bonds to
others, gift is “free” in the positive sense that people are free to enter into it
and free to respond or not respond, as they see fit.
Finally, according to Hyde, gift relations are altruistic and egalitarian; cul-
tures based on gift exchange do not have organized governments and are
nonhierarchical.95 Contract leads to social stratification and laws that protect
the dominant group.96
Indeed, Radin believes that contract and market rhetoric is itself alienat-
ing.
The critique of market rhetoric tells us that the way we conceive of things mat-
ters to who we are. To conceive of something personal as fungible assumes that
the person and attribute, right, or thing, are separate. This view imposes the
subject/object dichotomy to create two kinds of alienation, depending upon
whether or not the bearer of the attribute, right, or thing internalizes the com-
modified conception.
If the discourse of commodification is partially made one’s own, it creates
disorientation of the self that experiences the distortion of its own person-
hood. . . .
To conceive of something personal as fungible also assumes that persons
cannot freely give of themselves to others. At best they can bestow commodi-
ties.97

The romantic conceives of persons as being originally or essentially con-

nected. The presence of alienation in the world, therefore, must have been
caused by something external. Markets and contract are identified as the
source of this alienation. Gifts are seen as means of continuing or restoring
our essential, primal relationality.
The utilitarian vision of human nature and gift is considered uniquely

93. Bronislaw Malinowski, Argonauts of the Western Pacific: An Account of

Native Enterprise and Adventure in the Archipelagos of Melanesia New Guinea
(Waveland Press, Inc. 1984) (1922), quoted in Hyde, supra note 23, at 15 .
94. Id.
95. See Thomas D. Barton, Legal Anthropology and Economic Analysis, 80 Nw. U. L. Rev. 476,
478 (1985) (reviewing Katherine Newman, Law and Economic Organization: A Compar-
ative Study of Preindustrial Societies [1983] and Richard Posner, A Theory of Primi-
tive Societies in The Economics of Justice, supra note 38).
96. See Hyde, supra note 23, at 15.
97. Radin, Contested Commodities, supra note 91, at 93.
26 pandora’s amphora

repugnant. “At worst—in universal commodification—the gift is conceived

of as a bargain. . . . Conceiving of gifts as bargains not only conceives of what
is personal as fungible; it also endorses the picture of persons as profit-
maximizers.”98 In contrast, gifts are “expressions of the interrelationships
between the self and others. A gift takes place within a personal relationship
with the recipient, or else it creates one.”99 This vision reflects a “better view
of personhood” than the narrow utilitarian one.100 If contracts cause fungi-
bility, alienation, and separation, “gifts diminish separateness.”101
Unfortunately, the romantic analysis fails for the same reasons as the util-
itarian—both are theoretically inadequate and empirically inaccurate.

GIFT AS POTL ATCH

Looting and Pillaging Anthropological Data
Both utilitarians and romantics claim to find support for their positions in
anthropological studies of archaic societies organized around complex gift
institutions. Even a brief review of the literature indicates, however, that nei-
ther school attempts a serious examination of these data to determine the
true nature of gift-exchange institutions, let alone to consider whether they
are similar or even relevant to modern gift customs. Rather, they loot and pil-
lage anthropology for whatever snippets of information might appear to sup-
port their preexisting presuppositions, and they ignore or minimize the sig-
nificance of any evidence that does not fit their theories. Moreover, both the
utilitarian and romantic positions unreflectively assume, without analysis,
that there is an essential similarity or relation between the complex, highly
ritualistic, and public institutions of archaic societies and the modern cus-
toms of personal gift giving and public charity.
As most modern professional anthropologists recognize, one must be
extremely careful in trying to reinterpret vastly different forms of society in
light of modern Western concepts and vernacular. The data are extremely
complex and ambiguous. Anthropologists do not themselves agree as to how
to interpret them. Nonanthropologists must be even more careful.102
Consequently, I do not purport to offer a “correct” interpretation of these
societies specifically or gift-exchange institutions generally. What I do is to

98. Id.
99. Id.
100. Id.
101. Id. at 94
102. For an impassioned protest against the promiscuous exploitation of anthropological
studies of “exotic” cultures in gift scholarship, see Mary Louise Fellows, His to Give; His to Receive;
Hers to Trust: A Response to Carol M. Rose, 44 Fla. L. Rev. 329, 345–46 (1992).
 pandora’s amphora 27

argue that the data suggest profound differences between gift exchange and
the modern market relations favored by the utilitarians on the one hand, and
the ideal erotic interrelations hypothesized by the romantics on the other.
Archaic gift lacks the equivalence, mutuality, and individualistic freedom of
market relations, as well as the warmth and interrelationality of erotic rela-
tions. I also very tentatively suggest that the data may be more consistent with
the Hegelian account of gift—aggressive agonistic institutions in which par-
ticipants attempt to attain recognition of status and prestige at the expense
of others.

Gift Exchanges
In his ground-breaking book, The Gift: The Form and Reason for Exchange in
Archaic Societies,103 published in 1925, Marcel Mauss argued that “gift
exchange,” as practiced by many, if not most, “archaic” societies is not
merely an important social institution, but a premarket economic system as
well. Mauss not only revealed a fundamental similarity between such appar-
ently different institutions as kula,104 potlatch,105 and the practices of certain

103. Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Soci-
eties (W. D. Halls trans., Routledge 1990) (1950).
104. Kula is practiced in the Trobriand Islands, a small archipelago in Micronesia. In kula,
members of the chief class of one island sail clockwise with their retinue in ceremonial ships to
the nearest island in order to give gifts of shell bracelets to the chiefs of that island identified as
their partners. At other times, donors sail counterclockwise in order to give gifts of shell neck-
laces to partners on the next island. Over the years, the same bracelets could theoretically make
a complete clockwise circle, and the necklaces a complete counterclockwise circle, until they
return to their island of origin, or even their original owners. These gifts of bracelets and neck-
laces are not two separate, parallel institutions. Rather, it is understood that each gift of
bracelets obligates the donee to make a return gift of necklaces having the appropriate value,
and vice versa.
Kula was introduced to the West in Bronislaw Malinowski’s famous study, Argonauts of the
Western Pacific (see supra note 93), and has been the subject of numerous anthropological stud-
ies since. As Mauss explains, there are many types of kula, as well as other forms of gift and mar-
ket exchange practiced by the Trobrianders. He and others merely concentrate on “the most
solemn, lofty and competitive form.” Mauss, supra note 103, at 22.
The word “class” is somewhat misleading in the sense that the Trobriands apparently do not
have a rigid political system. As I explain, however, kula is a means of establishing prestige and
status, and is only practiced by the highest strata of Trobriand society. For convenience, I follow
custom and use the words “chiefs” and “class” to refer to those who are permitted to engage in
kula.
105. Potlatch was a gift-exchange institution formerly practiced among the nations of the
Pacific Northwest that has since been largely suppressed by the Canadian government. In pot-
latch, wealthy men would make what looks to Westerners like absurdly large gifts in elaborate
ceremonies.
28 pandora’s amphora

other contemporary archaic cultures. In an attempt to demonstrate the uni-

versality of gift exchange among premarket economies, he also argued that
a number of other apparently diverse societies, such as ancient India, pre-
republican Rome, and the Germanic tribes of the early middle ages, were
characterized by similar institutions.
Although Mauss’s observations are rich and complex,106 I will limit my
discussion to two points. This is because utilitarians and romantics have
each seized on one of these points to the exclusion of the other and, there-
fore, have both misinterpreted the data. In contrast, I argue that if one takes
both of these two Maussian hypotheses seriously and applies a Hegelian-
Lacanian analysis, one sees that both the utilitarian and romantic positions
are both wrong, but for opposite reasons. Contract and gift are indeed
essentially different, as the romantics maintain. But it is gift that is a failure
of eroticism. Gift establishes relation, but this relation is that of status, not
love.
Mauss’s first point is that no gift is ever given or received freely.
“Exchanges and contracts take place in the form of presents; in theory these
are voluntary, in reality they are given and reciprocated obligatorily.”107
Donors give not out of altruism but out of social obligation. “To refuse to
give, to fail to invite, just as to refuse to accept, is tantamount to declaring
war; it is to reject the bond of alliance and commonality. . . . One gives
because one is compelled to do so. . . . ”108 Every gift obligates the donee to
give a return gift of equal or greater value. “Almost always such services have
taken the form of the gift, the present generously given even when, in the
gesture accompanying the transaction, there is only a polite fiction, for-

In a single potlatch, literally scores of thousands of trade goods, such as blankets and pots,
might have been given, as well as purely ceremonial objects, such as engraved metal shields
known as “coppers.” Sometimes the “gifts” were not physically delivered to the recipients at all,
but were destroyed as a sacrifice to the recipients’ ancestors or guardian spirits. Recipients of
potlatch were expected to give an even larger gift to the donor at a return potlatch. This return
obligation was so great that many participants literally impoverished themselves rather than
bear the shame of ingratitude. Consequently, some Western observers have compared potlatch
to war. See Mauss, supra note 103, at 37.
106. The primary point of Mauss’s work might be summarized thus: gift is an extremely
complicated and ambiguous relation that cannot be pigeonholed easily into simple categories.
The very etymology of the English word “gift” reveals its Janus-faced nature—it comes from a
Germanic root that means both present and poison. See Marcel Mauss, Gift, Gift, in The Logic
of the Gift: Toward an Ethic of Generosity 28–31 (Alan D. Schrift ed., 1997) [hereinafter
The Logic of the Gift].
107. Mauss, supra note 103, at 3. Mauss is specifically referring to medieval Scandinavian
civilization, as revealed in a quoted Edda. He is using this as an introduction, however, to what
he believes is a universal characteristic of gift exchange.
108. Id. at 13 (endnotes omitted).
 pandora’s amphora 29

malism, and social deceit, and when really there is obligation and economic
self-interest.”109 A potential donee cannot avoid the obligation to give a
countergift by refusing a gift because gift-exchange societies also impose
strict obligations on their members to accept gifts.110 Consequently, pot-
latch—gift as war—is not an aberration, but rather the exemplar of archaic
gift exchange. The utilitarian relies primarily on this exchange aspect of
gift.
Mauss’s second point is that, although it may be a necessary aspect of
archaic economies at a certain level of development, gift exchange cannot be
reduced to a simple economic function. Gift exchange also serves social func-
tions such as the establishment of relationships (both friendly and hostile)
among and the relative status of tribal or family groups or members engaged
in the exchange. Indeed, a central part of Mauss’s theory is that archaic soci-
eties have not yet distinguished the economic realm from other aspects of
social intercourse. Consequently, gifts in general, and gift exchange in par-
ticular, can be explained neither in terms of gratuitous or personal relations
nor in terms of the market. They are a hybrid. They are “at the same time
juridical, economic, religious, and even aesthetic and morphological, etc.”111
The romantic relies primarily on this relational aspect of gift.
The utilitarian analysis of gift as contract fails on two closely related
grounds. First, it confuses the reciprocal nature of gift with the principle of
the equivalence of exchange value in contract; by concentrating on the
shared exchange aspect of contract and gift, it represses the nonbargain
aspect of gift. Second, it assumes that one engages in gift (like contract) pri-
marily to obtain utility or wealth in the form of future goods or services. In

109. Id. at 3. Since Mauss, some anthropologists and sociologists have suggested that
archaic gift-exchange systems should technically be called “prestation,” defined as “ ‘the action
of paying, in money or services, what is due by law or custom, or feudally,’ . . . [when there is
implied] a fairly clear obligation on the part of an individual to render something specific, the
obligation being enforced by law or at least strong public pressure.” Cyril S. Belshaw, Tradi-
tional Exchange and Modern Markets 47 (1965) (citation omitted). As Cyril Belshaw
points out, “Gifts in our society are given personally, to be retained by the recipient.” Id. Nev-
ertheless, the more careful anthropologists are fully aware that even though we tend to deny it,
“it may be questioned whether any gift is free of equivalence in the Oxford Dictionary sense.”
Id. at 46. In contrast, in archaic gift-exchange societies, “the gift is much more of an abstract
symbol.” Id. at 47. Of course, this is precisely my point.
110. That is, gift exchange comprises three distinct obligations: a duty to give gifts, a duty
to accept gifts tendered, and a duty to give a return gift. See Mauss, supra note 103, at 13.
111. Id. at 79. He continues, “They are juridical because they concern private and public
law, and morality. . . . They are political and domestic at the same time, relating to social
classes . . . clans and families. They are religious. . . . They are economic. Moreover, these insti-
tutions have an important aesthetic aspect. . . . Finally , the phenomena are clearly structural.”
Id. (citations omitted).
30 pandora’s amphora

fact, these errors may more accurately be seen as different aspects of one
common error: the application of modern liberal assumptions about the
free, atomistic nature of man to people and institutions in archaic societies.
Gift exchange is selfish, as the utilitarian presupposes. But archaic man
does not define himself as a separate, atomistic individual. Rather, being
bound in complex webs of family, clan, and tribe, he is defined by others in
terms of status. As Mauss states, “It is not individuals but collectivities that
impose obligations of exchange and contract upon each other.”112 That is,
archaic gift exchange relates to the individual’s familial, social, political, and
religious position, as well as his economic standing, in the society. In archaic
societies, therefore, the greatest benefits do not take the form of things or
services to be consumed by the individual and his children, but rather relate
to one’s position. Archaic gift exchange is a strategy whereby participants
seek to increase their prestige and debase their enemies within a given static
hierarchy.
The utilitarian point of view also displays a fundamental misunderstand-
ing of reciprocity, as first elaborated by Mauss. The utilitarian infers from the
fact that there is an obligation to return a gift that the returned gift is equiv-
alent to the original gift, and that the gift exchange is a form of pseudocon-
tract characterized by mutuality. This interpretation is perhaps not surpris-
ing among economists and lawyers, who do not do anthropological field
research themselves, but merely read popularized accounts through the lens
of their own preconceptions about economic relations.113 It is surprising,
however, that many prominent anthropologists seem to make the same mis-
take, often ignoring or distorting their own data to fit their economic prej-
udices about the nature of reciprocity.114
According to Annette Weiner, mainstream anthropologists (and, I would
add, utilitarians) misinterpret Mauss’s hypotheses as to the economic func-
tion served by the reciprocity of gifts. They assume that gift exchange is lit-
erally just a simple, albeit imperfect, form of market. Accordingly, their
analysis is based on modern markets. This inappropriate analogy to contract
obligations results in the misperception that the reciprocity of gift exchange
is characterized by mutuality and equality.115

112. Mauss, supra note 103, at 5 (citation omitted).

113. Of course, if this is a sin, as a lawyer, I am equally guilty.
114. See Annette B. Weiner, Inalienable Possessions: The Paradox of Keeping-While-
Giving 17–18, 28–33 (1992).
115. See Weiner, supra note 114, at 17. As I explain in the text, Weiner (as well as the schol-
ars she criticizes) assumes that “reciprocity” must always imply equivalent (or close) counter-
obligations. In fact, the term more generally implies that the actions by the donee obligate the
donee to reciprocate in some way.
 pandora’s amphora 31

Nothing could be further from Mauss’s point. Mauss intended his essay to
be a critique of utilitarianism.116 Although he proposed that gift exchange
has an essential economic aspect, he insisted that it is essentially and radically
different from modern markets. According to Mauss, archaic peoples enter
into gift exchange as a customary way of establishing and maintaining cer-
tain ritualized relationships and status with respect to other tribes, clans, and
individuals. I return to this later in this chapter.
The inequality and hostility of potlatch has long been recognized. West-
erners have characterized it as a form of war disguised as gift, but have at
least implicitly considered it an anomaly, the exception that proved the rule
of altruism. In potlatch, not only could gifts not be refused, they had to be
repaid upon demand, with interest—that is, the return gift had to exceed
the original gift by a customary amount.117 This was readily apparent; by the
later nineteenth century the gift cycle had so accelerated that the parties
were exchanging literally scores of thousands of blankets and other
objects.118
Yet, it is precisely Mauss’s point that potlatch is not an exception, but
rather the epitome of an institution virtually universal among societies at a
certain level of social development. Weiner interprets the empirical evidence
as suggesting that gift exchange is always unequal. The purpose of gift
exchange is, as Mauss hypothesized, the creation of status and hierarchy.
One institutes a gift exchange in order to increase one’s status (or the status
of one’s clan or tribe) in comparison to the donee and other participants in
the gift ritual.
A donor institutes a gift relationship to increase his prestige in two ways.
The fact that he gives establishes his reputation as a wealthy and generous
man, brave and crafty enough to risk the competition of gift. As Mauss says
in connection with potlatch, “To give is to show one’s superiority, to be more,
to be higher in rank. . . . ”119 The position of the donee is ambiguous at this
point. To the extent that he receives a particularly prestigious object as a gift,
his status is enhanced. To the extent that he is viewed as the passive recipi-
ent of the generosity of another, it is diminished. “To accept without giving

116. See Mary Douglas, Foreword: No Free Gifts, in Mauss, supra note 103, at vii–viii.
117. See Belshaw, supra note 109, at 24–25. Belshaw explains how this mandatory aspect of
potlatch enabled it to serve as a sort of credit system for young men trying to enter into society.
By making a number of small strategic gifts and receiving bigger gifts as “interest,” the youth
could eventually accumulate sufficient “capital” to engage in a proper potlatch.
118. Id. at 29. The return obligation imposed by potlatch was so great that no one wanted
to be the original recipient in a potlatch exchange. The potlatch would continue until one of
the parties had given away all he had, could no longer play, and was disgraced.
119. Mauss, supra note 103, at 74.
32 pandora’s amphora

in return, or without giving more back, is to become client and servant, to

become small, to fall lower.”120 The donee needs to reciprocate the gift for
several reasons. Partly it is to avoid revenge. More importantly, he must
reestablish his reputation for generosity to avoid being considered a miser
and losing face. The return gift must be greater than the original for two rea-
sons. First, by giving a bigger gift, the donee seeks public recognition that he
is a greater man than the donor. Second, by giving a larger gift, the original
donee in turn obligates the original donor to give back another yet larger
gift. In this way, he seeks to best or even ruin his “partner” by eventually forc-
ing him to give away all of his most valuable gift objects.
Consequently, Weiner hypothesizes that gift exchange is a strategy by
which participants plot to obtain and keep the most prestigious objects for
themselves while simultaneously depriving rival participants of their pres-
tigious objects in order to establish higher status and dominance over the
latter.121 This system is not merely aggressive. It is also unstable and
unproductive because prestige is established by two mutually inconsistent
tests: by being known as the most generous giver and by being known as
the recipient of the most prestigious gift objects. As I suggest below,
Weiner’s empirical observation is more consistent with the Hegelian
analysis of gifts.
The utilitarian assumes that gift exchange is a means of obtaining com-
modities or services in the future. In contrast to the untested assumptions
of utilitarians and anthropologists, empirical observation suggests that
many archaic property and economic relations do not serve the function of
allocating and supplying needed material goods. Nor do they serve to
establish long-term military or family alliances with their gift-exchange part-
ners, as Posner suggests. Gift exchange tends to exist in societies character-
ized by subsistence economies, in which social groups (such as families,
matrilineages, clans, and tribes) typically produce substantially all of their
own food and necessities.122 Market exchange is not unknown, but is rela-
tively unimportant. The objects of desire given as gifts are generally sym-
bolic objects produced purely for the sake of exchange, with little or no eco-
nomic use.123

120. Id.
121. See Weiner, supra note 114, at 8. Weiner more fully develops her theory of “keeping-
while-giving” in her account of kula. See id. at 131–48.
122. By subsistence, I am not implying hand-to-mouth scarcity. Exchange economies flour-
ish in locations where food and other resources are relatively plentiful, such as the tropical
islands inhabited by the Trobrianders and the salmon-rich rivers fished by the peoples of the
Pacific Northwest.
123. According to Mauss, “What they exchange is not solely property and wealth, movable
and immovable goods, and things economically useful. In particular, such exchanges are acts
of politeness: banquets, rituals, military services, women, children, dances, festivals, and fairs,
 pandora’s amphora 33

For example, in kula the objects exchanged are bracelets and necklaces
made of shells. Although these are theoretically useful objects of adornment,
they are often so large and heavily decorated that they are impracticable to
wear and are displayed only at ceremonial occasions.124 Moreover, the Tro-
briands set the value of these objects based not on their beauty or crafts-
manship, but on their genealogy—how many times they have been given and
by whom. The genealogies of the exchanged gift objects establish the pres-
tige of the participants who possess the most frequently exchanged
objects.125 The kula objects take on a personal, even sacred, character.126
Potlatch might at first blush seem different in that it often involved the
exchange of apparently useful objects, such as blankets, pots, and cooking
oil. By the time the institution was suppressed, however, participants were
giving away such absurdly large numbers of these objects—literally scores of
thousands at a time—that it seems obvious that they could not have been
intended for use. Consequently, romantics such as Hyde,127 who bemoan the
fact that cheap blankets sold by the Hudson Bay Company eventually
replaced the beautiful traditional handmade blankets in potlatch, miss the
point of the institution. The object given in gift exchange has no intrinsic
value. It exists only to be exchanged. The introduction of cheap trade goods
in the Northwest, therefore, may not have resulted in a corruption of pot-
latch but rather enabled it to expand to its logical conclusion.
This hypothesis is further supported by the aspect of potlatch that seems
most peculiar to Western eyes—the destruction of “gifts.” This practice sup-
ports the hypothesis that the purpose of potlatch was neither the exchange
of useful goods nor altruism, but rather the increase of the donor’s prestige
and the abasement of the donee. In potlatch the donor had the option of
destroying the gift objects rather than actually conveying them to the

in which economic transaction is only one element, and in which the passing on of wealth is only
one feature.” Mauss, supra note 103, at 5.
124. Mauss (who did not personally do field work in the Trobriands but relied on Mali-
nowski’s account) speaks of the bracelets being worn by men and the necklaces by women. See
Mauss, supra note 103, at 23. Weiner, who did field work, maintains otherwise (and illustrates
this assertion with photographs). See Weiner, supra note 114, at fig. 24.
125. See Weiner, supra note 114, at 134–35.
126. As Mauss states: “The institution [of kula] has also its mythical, religious, and magical
aspect. . . . Each [object of exchange] . . . , at least the dearest and the most sought after—and
other objects enjoy the same prestige—each one has its name, a personality, a history, and even
a tale attached to it. So much is this so that certain individuals even take their own name from
them. . . . To possess one is ‘exhilarating, strengthening, and calming in itself.’ Their owners
fondle and look at them for hours. Mere contact with them passes on their virtues. [The objects]
are placed on the forehead, on the chest of a dying person. . . . They are his supreme comfort.”
Mauss, supra note 103, at 24 (citations omitted).
127. See Hyde, supra note 23, at 29–30.
34 pandora’s amphora

donee.128 This is perceived of as a “gift” because the “donor” ostensibly sac-

rificed the objects to the spirits for the sake of the donee.129 The “donee” is
then put in the unenviable position of having to return an even greater gift
even though he received nothing material. Obviously, the destructive pot-
latch is an extremely effective way for the potlatcher to demonstrate his great
wealth130 without also enriching his rival.131 I return to destructive potlatch
in my critique of the romantic theory of gift later in this chapter.
Weiner persuasively argues that even what seem like obviously useful
exchanges have been misunderstood by those anthropologists and utilitari-
ans who start from the assumption that gift exchange is merely an imperfect
form of market exchange—or, in Posner’s formulation, insurance contract.
For example, in the Trobriand Archipelago, it is the custom for maternal
uncles to maintain ritual gardens in order to give gifts of yams to their sis-
ters’ children.132 This looks, of course, like an arrangement whereby the chil-

128. As Georges Bataille explains:

Gift-giving is not the only form of potlatch: A rival is challenged by a solemn destruction
of riches. . . . As recently as the nineteenth century a Tlingit chieftain would sometimes
go before a rival and cut the throats of slaves in his presence. At the proper time, the
destruction was repaid by the killing of a large number of slaves. The Chukchee of the
Siberian Northeast have related institutions. They slaughter highly valuable dog teams,
for it is necessary for them to startle, to stifle the rival group. The Indians of the North-
west Coast would set fire to their villages or break their canoes to pieces. They have
emblazoned copper bars possessing a fictive value (depending on how famous or how
old the coppers are): Sometimes these bars are worth a fortune. They throw them into
the sea or shatter them.
Georges Bataille, The Accursed Share: An Essay on General Economy 68 (Robert Hur-
ley trans., 1988).
129. Id.
130. He obviously proves his wealth through such ostentatious demonstrations of indiffer-
ence, reminiscent of the familiar caricature in our society of the billionaire who lights his cigar
with a hundred-dollar bill. Bataille suggests that the effect is even more profound: “But if he
destroys the object in front of another person or if he gives it away, the one who gives has actu-
ally acquired, in the other’s eyes, the power of giving or destroying. He is now rich for having
made use of wealth in the manner its essence would require: He is rich for having ostensibly con-
sumed what is wealth only if it is consumed. But the wealth that is actualized in the potlatch, in
consumption for others, has no real existence except insofar as the other is changed by the con-
sumption.” Id. at 69–71.
131. In Mauss’s words: “In a certain number of cases, it is not even a question of giving and
returning gifts, but of destroying, so as not to give the slightest hint of desiring your gift to be
reciprocated. Whole boxes of olachen (candlefish) oil or whale oil are burnt, as are houses and
thousands of blankets. The most valuable copper objects are broken and thrown into the water,
in order to put down and to ‘flatten’ one’s rival. In this way one not only promotes oneself, but
also one’s family, up the social scale.” Mauss, supra note 103, at 37 (endnotes omitted).
132. Such avuncular obligations (from the Latin avunculus, mother’s brother, as opposed
to patruus, father’s brother) are common among archaic societies, including that of the Euro-
pean high middle ages. See Jeanne L. Schroeder, Feminism Historicized: Medieval Misogynist Stereo-
 pandora’s amphora 35

dren are provided with food—an important economic necessity in a subsis-

tence economy. In fact, the avuncular yams used in this ritual are virtually
inedible and have little nutritional value.133 The gifted yams are frequently
piled up outside the family’s house and ostentatiously left to rot, apparently
as a symbol of the family’s wealth.134 The yams only exist for the sake of gift
and the resulting creation of prestige.
To say that gift objects are valuable only insofar as they are exchanged
implies that they serve as units of exchange. Nevertheless, archaic gift objects
are not merely primitive forms of money. Rather, the objects are symbols of
the exchange, reflecting the prestige of previous winners of the exchange
game. In kula the highest ranking shells, as determined by their genealogy
of ownership, are even given individual names.135 Each time the object is
exchanged it becomes more valuable. It increases more if it passes through
the hands of a higher status participant rather than a lower status one. Con-
versely, one gains prestige by becoming the recipient of a valuable (high sta-
tus) shell rather than a lower one.136
As Mauss explains, gift exchange is a complex web of relations. The
objects exchanged “are living beings”;137 they bear the spirits of the persons
engaged in the exchange relation.138 “Each one of these precious things pos-
sesses, moreover, productive power itself.”139 “Yet it is also because by giving
one is giving oneself, and if one gives oneself, it is because one “ ‘owes’ one-
self—one’s person and one’s goods—to others.”140
The romantic correctly recognizes Mauss’s point that gift institutions pre-
cede the development of contractual institutions as a historical matter, and
therefore are essentially different. The romantic also embraces Mauss’s
hypothesis that gift exchange is a means of establishing relationships. In the
Maussian view, “[a] gift that does nothing to enhance solidarity is a contra-
diction.”141
But the romantic makes the opposite error from that of the utilitarian.
The romantic misapplies Mauss’s hypothesis to unexamined and unproven
assumptions about the market economy. Observing both alienation and con-
tract in modern society, the romantic leaps to the conclusion that contract

types in Contemporary Feminist Jurisprudence, 75 Iowa L. Rev. 1135, 1205 n.271 (1990) [here-
inafter, Schroeder, Feminism Historicized].
133. See Weiner, supra note 114, at 31–32.
134. See id. at 31.
135. See id. at 134.
136. See id. at 134–48.
137. Mauss, supra note 103, at 44.
138. See id.
139. Id.
140. Id. at 46.
141. Douglas, supra note 116, at vii.
36 pandora’s amphora

is a major cause of alienation. Because gift in our society tends to be limited

to the intimate realm of family and friends, the romantic assumes that gift
supports (or creates) relationships, as opposed to alienation.
The empirical data presented by the romantics themselves are at best
deeply ambiguous and at worst at odds with their hypothesis. The romantic
presumes that, in contrast to contract, gifts are free acts of altruism that do
not impose any specifically articulated return obligation and that result in
the formation of lasting beneficial relations based on interdependence and
mutuality. In fact, in archaic societies, gifts are made, accepted, and returned
out of strict obligation according to standards rigidly set both by custom and
by implicit negotiation that result in unstable relations based on hierarchy
and status.
The romantic insists that gifts are free—given out of generosity, affection,
or relation—to be distinguished from the compulsory and enforceable obli-
gation of contract. In support of this, Hyde points to the lack of formal sanc-
tions enforcing the countergift obligation. Despite his protests to the con-
trary, however, this argument suggests that the romantic is so imbued with
the ethos of modern American culture that he can imagine compulsion only
in terms of legal sanction. Consequently, he ignores or minimizes the effect
of other forms of compulsion and sanctions employed in premodern cul-
tures.
In contradistinction, Posner, as a lawyer and judge, is fully aware that legal
sanctions are not necessarily the only possible, let alone the most effective,
type of enforcement mechanism. In archaic societies in which there is little
mobility, other forms of social control (exclusion, shunning, revenge, etc.)
are probably more effective. If one is not able to skip town, if one is depen-
dent on one’s social group for food and protection, and if there is no gov-
ernment to protect one from violence, one had better live up to the expec-
tations of one’s family, friends, and neighbors. In a tribal society, the threat
of war with neighboring peoples is a great deterrent against the breach of
customary obligations. To an animist, the possibility that a disgruntled
donor might resort to sorcery may be the greatest danger of all.
In other words, archaic gift may look free in form, but it is bound in sub-
stance. As Mauss stated, in gift-exchange societies obligations “are commit-
ted to in a somewhat voluntary form by presents and gifts, although in the
final analysis they are strictly compulsory, on pain of private or public war-
fare.”142 That is, “to refuse to give, to fail to invite, just as to refuse to accept,
is tantamount to declaring war; it is to reject the bond of alliance and com-
monality.”143

142. Mauss, supra note 103, at 5.

143. Id. at 13 (citations omitted). Consistent with the fact that, at the time Mauss was writ-
ing, anthropologists had not yet concentrated on the reciprocal nature of gift institutions is
 pandora’s amphora 37

Status also plays a crucial coercive role in archaic societies. In potlatch, a

chief can only maintain his rank by showing through gift that he is favored
by the spirits.144 Chiefs who do not give are said to have a “rotten face,” which
has an even stronger connotation than the familiar Asian notion of face: it
is the right or ability to wear the sacred masks, incarnate the spirits, and have
a “persona.”145 Acceptance of gifts is also obligatory. Failure to accept is evi-
dence that one is afraid that one cannot reciprocate, that one will be “flat-
tened,” “ ‘lose the weight’ attached to one’s name.”146 The greatest chiefs can
refuse to receive a potlatch, but only on the acceptance of the obligation to
return an even greater potlatch.147
“The obligation to reciprocate constitutes the essence of the potlatch, in so
far as it does not consist of pure destruction.”148 Moreover, the return obli-
gation must be accompanied by interest at 30 percent to 100 percent per
year.149 One does not merely lose face for failing to reciprocate potlatch.
“The punishment for failure to reciprocate is slavery for debt.”150
The greatest potlatchers of all are those who not only give fantastic amounts,
making it well-nigh impossible for their rivals to repay in a future potlatch at the
appropriate interest, but who also demonstrate how rich and magnificent they
are by actually destroying their most valued items: canoes, coppers, blankets,
even stocks of fish grease and oil. The destruction of property is the most dra-
matic and characteristic feature of the potlatch.151

Once again, Mauss did not think that the compulsory nature of potlatch was
the exception that proved the rule of freedom. He demonstrates this with the
terminology of kula. Bronislaw Malinowski translated the Trobriand term of
the return gift as the “clinching gift” that seals the transaction.152 However,
Mauss points out that an alternate name is “the tooth that bites, that really
cuts, bites through, and liberates.”153 Its return is not truly left to the donee’s
discretion. If an appropriate return gift is not made within the customary
time frame, it may be “seized by force or by surprise.”154 If the return gift is

Mauss’s observation that anthropologists just did not then know the true sanctions for breach
of this obligation. Are they moral or magical, or does the breacher lose his rank or prestige?
144. See id. at 39.
145. See id.
146. Id. at 41.
147. See id.
148. Id. (endnote omitted).
149. See id. at 42.
150. Id.
151. Belshaw, supra note 109, at 26.
152. See Mauss, supra note 103, at 26.
153. Id.
154. Id. (endnote omitted).
38 pandora’s amphora

not deemed equivalent, “revenge may be taken by magic, or at least by insult

and a display of resentment.”155 Consequently, if the donee cannot immedi-
ately reciprocate as required, he will at least offer a smaller gift as a sort of
down payment. This gift “merely ‘pierces’ the skin, does not bite, and does
not conclude the affair.”156 Rather than freeing the donee, gift binds him as
a debtor.157
Probably the most telling example of Hyde’s blindness towards the oblig-
atory nature of gift is his discussion of Biblical sacrifice. He describes sacri-
fice as a gift from man to God.158 The passages cited, however, expressly state
the opposite. Hyde asserts that “in the Pentateuch the first fruits always
belong to the Lord. In Exodus the Lord tells Moses: ‘Consecrate to me all the
first-born; whatever is the first to open the womb among the people of Israel,
both of man and of beast, is mine.’ ”159 Moreover, as Hyde notes, those who
refuse God’s unequivocal demand that sacrifice be made are punished. For
example, Hyde asserts that the reason Pharaoh was plagued by toads was
because he interrupted the divine circle of gifts.160 If this is freedom, what
could compulsion be?
And so, Hyde is incorrect in stating that archaic gift is free in the sense
that the decisions as to whether, when, and how much to reciprocate are left
to the discretion of the donee. The return obligations are, in fact, well es-
tablished by custom and practice and are enforceable through a variety of
traditional devices. This raises the suspicion that Hyde is also wrong in main-
taining that gift does not entail negotiation. Indeed, the evidence suggests
that far from unknown, negotiation is common, although it may not meet
Hyde’s stereotypical image of how modern lawyers and businessmen act. In
the words of Cyril Belshaw,
These matters are regulated through the judgment of the partners as to
whether the ornaments exchanged are indeed appropriately equivalent, and
any hesitancy is dealt with through the intermediary exchanges or by pro-
longing the exchanges until both partners are satisfied. This is not the rough
haggling of the bazaar. But it certainly is delicately negotiated price adjustment
of the same kind. The difference is not in the principles of valuation, but in the
etiquette of negotiation.161

Weiner insists that kula is a strategic enterprise whereby the parties engage
in complex, multilayered plots lasting ten years or more to force rivals to

155. Id. (endnotes omitted).

156. Id.
157. See id.
158. See Hyde, supra note 23, at 19–20.
159. Id. at 19.
160. See id. at 20.
161. Belshaw, supra note 109, at 17.
 pandora’s amphora 39

give up their valuable objects.162 Even face-to-face negotiation is not

unknown.
Hyde himself gives an example of express negotiation. He quotes at
length the conversations of two chiefs in a potlatch who propose and reject
counter-offers.163 As a deal lawyer, I can testify that this conversation typifies
the dickering that accompanies the negotiation of a corporate acquisition
agreement. Each party argues as to why she deserves more in the transaction
than originally offered. The only difference is that, in the traditional culture
of potlatch, desert is discussed in terms of personal and familial prestige,
whereas in modern cultures other standards are used.
Despite the existence of implicit (and sometimes express) negotiation,
however, there is an essential difference between modern contractual
exchange and archaic gift exchange. In the former, no party is obligated to
enter into a contract and no conveyance is made until the parties reach a bar-
gain. Obligations must be mutually assumed. In the latter, the transaction
begins when one party unilaterally imposes an obligation on the other by
conveying property. The donee is obligated both to accept the gift and to
make a return gift. Only subsequently do the parties haggle over the return
duties. In other words, in contract, negotiation precedes obligation, whereas
in gifts, negotiation succeeds obligation.
Gift exchanges, as the romantics suggest, establish or reinforce relations
between individuals, clans, and tribes in “archaic” cultures. For example, kula
arguably keeps hostilities from breaking out between neighboring islands in
the Trobriand Archipelago.164 The temporary peace established during kula
ceremonies enables the participants (and their colleagues) to engage in
market-trade as well.165

162. As Weiner explains:

It takes years of work to convince the player to release the shell and this necessitates hav-
ing many other shells to move along this particular path. . . .
Kula as a topic of conversation with nonpartners abounds with accounts about the lost
chances, the broken promises, the things given to someone in an attempt to get a shell
only to be faced with an empty return. . . . But as one kula player told me, all kula talk is
dangerous because most of it is lies, specious rhetoric set forth to serve one’s own ends.
. . . . Instead of perceiving kula transactions simply as gifts and counter-gifts, it is
essential to visualize the maze of plays and strategies as layers of exchanges which one
must constantly build up over time and then keep track of.
Weiner, supra note 114, at 141; footnotes omitted.
163. See Hyde, supra note 23, at 31.
164. See Belshaw, supra note 109, at 14.
165. See id. at 16. Also: “The exchange of gifts creates or reinforces relationships of alliance
between individuals and the groups of which they are representative. They open the way for the
exchange of other acts of duty and support, both material and nonmaterial. In the kula ring,
the partnership establishes an alliance with political overtones, in that law and order is guar-
40 pandora’s amphora

But gift exchanges can hardly be described in terms of altruism, gen-

erosity, or freedom. They are strictly circumscribed by custom. The relations
established are not what we would call friendship or love, but rather status.
They may, in fact, lead to relations of hostility rather than peace. In the words
of Belshaw, gift exchanges are “dynamic competition for sociopolitical sta-
tus based upon the use of wealth to control social relationships.”166

Although the details vary considerably from culture to culture, the main vari-
ables are remarkably consistent. These include emphases on relationships
between individuals which are also seen as relationships between groups, and
upon gaining advantages which can be expressed as prestige as well as in mate-
rial ways, and with greater or lesser degrees of competition and rivalry.167

As we have seen, Hyde draws from the fact that archaic societies frequently
lack modern governments and formal feudal social hierarchies, such as
class and caste, that archaic gift exchange fosters egalitarian relationships.
Weiner argues precisely the opposite. The lack of a formal political hier-
archy increases, rather than decreases, the status-forming role of gift
exchange.

The Trobriands also represent the most complex ranking system . . . Kula
activity provides a context for chiefly authority where actual ranking and
chiefs do not exist. In these situations, ranking is sustained briefly yet ulti-
mately defeated because the shells are inalienable only for a limited time. But
within that time period, exchange is subverted, keeping is paramount and dif-
ference is politically flaunted. . . .
Out of this difference negotiated in exchange over what is not exchanged,
power is generated and, under certain circumstances . . . transforms difference
into hierarchy.168

Similarly, the purpose of potlatch was the establishment of rank and status
among men. For example, Kwakiutl society is organized around social
groups structured by “a complex system of titles which indicate a man’s posi-
tion and prerogatives.”169 Although some of these titles are determined by
familial descent, others may be acquired by various means, including pot-
latch.170 Accordingly,

anteed between the communities involved. It opens channels of substantial trade and social
intercourse.” Id. at 19.
166. Id. at 18.
167. Id. at 35.
168. Weiner, supra note 114, at 19.
169. Belshaw, supra note 109, at 22.
170. See id. at 22–23.
 pandora’s amphora 41

a more persistent theme in the potlatch is the validation of social position, sym-
bolized in the acquisition and holding of a title and improving its status. . . .
Status competition and distribution competition go hand in hand. . . . It con-
tains the component of challenging one’s rival to do better. . . . It also includes
a strong element of denigration, or deriding the other fellow, and this carries
over into a show of contemptuous and arrogant hostility.171

Potlatch has been described as a “kind of love-hate relationship with some

other social group.”172
As mentioned, “gifts” were destroyed as well as given in potlatch. Hyde,
trying to fit this within his romantic preconceptions, argues that so far as the
donor is concerned, the gift object is always in some sense “destroyed” in that
it is forever lost to him.173 He compares this to the potlatch practice with
respect to one of the most valuable types of desired objects in Northwestern
societies—metal objects called “coppers.” The donor frequently broke the
copper before giving it away.174 Strangely, Hyde sees this practice—by which
the donor insures that the “gift” is less valuable in the hands of the donee—
as proof of the generous, altruistic nature of gift. By contrast, Mauss points
out that the sumptuary destruction of potlatch is “not without egotism.”175
“Through such [destructive] gifts, a hierarchy is established.”176
Weiner argues that acts that seem like the destruction of gifts are not a net
loss to the donor at all, but yet another strategy whereby the donor seeks to
increase his wealth and status. Indeed, in some cases, the apparently destruc-
tive act invests the object with increased prestige that eventually redounds to
the donor. The donor breaks off a piece of the copper so that it will not be
whole (and as valuable) in the hands of the donee. The donor schemes to
engage in future potlatches in order to force the original donee to return the
broken copper. The broken shard is then welded back onto the returned
copper.177 Such repaired coppers are more valuable than whole coppers pre-
cisely because they are visible proof that the original donor won the
exchange and vanquished the donee.178

171. Id. at 26.

172. Id. at 25. Also: “Everything is based upon the principles of antagonism and rivalry. The
political status of individuals in the brotherhoods and clans, and ranks of all kinds, are gained
in a ‘war of property’ [sic], just as they are in real war, or through chance, inheritance, alliance,
and marriage. Yet everything is conceived of as if it were a ‘struggle of wealth.’ ” (Mauss, supra
note 103, at 37 (endnotes omitted).
173. See Hyde, supra note 23, at 9. Hyde is, of course, repressing the fact that the gift is not
always destroyed so far as the donee is concerned.
174. See id. at 30–31.
175. Mauss, supra note 103, at 74.
176. Id.
177. See Weiner, supra note 114, at 41.
178. See id.
Exploring the Variety of Random
Documents with Different Content
the grass, holding the cross of the sword before his eyes.
“I would keep my vigil here,” he said. “Yonder where there is a
thicket of young oaks. Before dawn, I shall be gone.”
Denise’s face was still transfigured. The realisation of her
earthliness had not returned as yet.
“God guard you in the wars,” she said to him.
Aymery lifted his head, and for a moment they looked into each
other’s eyes. Then he turned from her as though his own heart bade
him go. And it seemed to each that they had snatched a moment of
joy from that half-closed hand of life that holds more pain than
gladness.
There were some children standing staring at his horse when
Aymery came out from the wicket in the hedge of thorns. He paid no
heed to them however, and taking his horse by the bridle, led him to
the oak thicket on the hillside below Virgin’s Croft. The children ran
away into the town, and told their mothers that they had seen a
knight come out of St. Denise’s gate with a naked sword over his
shoulder. The children’s tale-bearing caused some tattle in the Abbey
town, and the Abbey servants heard it.
Thus these two, soldier and saint, passed the night within call of
one another; Aymery kneeling bareheaded under the stars, with
sword and shield before him; Denise pitiably wakeful in her cell,
conscious of the darkness, and of that shadow of darkness that grew
each day more heavy about her heart. She prayed for Aymery that
night, prayed for herself, and against the future that she dreaded.
They were so near to each other, and yet so utterly apart. It seemed
to Denise that night that she had fled to this place of refuge, only to
meet the greater bitterness and shame.
At last the dawn came, and with it the sound of a horse moving
over the grass. She heard Aymery come riding up to the hedge of
thorns. She saw his sword flash out against the dawn as he stood in
the stirrups and called her name.
“Denise, Denise!”
“God keep you,” she answered him in her heart.
He went away into the world at a gallop, as though it was easier
to leave her thus in the gold and green of a summer morning.
 Aymery had been gone but half an hour when a monk and two
lay brethren came hurrying over Mountjoye Hill. Their figures looked
dark, intent, outlined against the virginal clearness of the dawn. The
monk was Dom Silvius, and his eyes were sharp and watchful.
He came alone to Denise’s cell, leaving the two lay brothers at
the gate in the hedge. Denise was washing her neck and bosom; she
had closed the door, and suffered Silvius to speak to her from
without. She soon learnt that he had heard of Aymery’s coming, and
that he desired to discover the reason thereof.
“It was one who rode here, Father, to have his arms blessed. He
is on the eve of knighthood, and kept his vigil in the wood, yonder.”
Silvius’s face was very astute, he stroked his chin and considered.
There was nothing of the dreamer about him that morning.
“And the offering, Sister, the offering?”
Denise did not choose to understand.
“What offering, Father?”
“That which the man left, for the blessing.”
“He left no offering with me,” she said.
“No gift, Sister, nothing out of gratitude for the blessing?”
“No.”
“Not even a ring or a piece of money?”
“Nothing.”
Silvius’s face condemned such vagrant meanness. He hid his
vexation, and spoke softly, remembering that he was dealing with a
certain sensitive thing called woman.
“Sister,” said he. “Perhaps the man was poor. We grudge nothing
to those who are blessed with poverty. But an offering should always
be made, even though it be but the half of an apple. God loves not
niggardliness, my sister, and I would not have our good Lord, St.
Martin, offended.”
Denise could not see Silvius because of the closed door, but there
was something in his voice that made her see him as a sharp-faced,
shrewd, insinuating figure hiding covetousness under the cloak of
humility.
“I asked for nothing, Father,” she said.
Silvius’s face was very cunning.
 “True, my Sister, we do not barter with our own souls. But there
are the poor to be remembered, the fabric of the church, the glory
of St. Martin. There is no shame in holding out the hand for these.”
Denise’s hands were fastening her tunic. And in the darkness of
the cell she seemed to understand suddenly, as one comes by the
understanding of the deeper things of life in the midst of some great
sorrow, the reason of their eagerness to win her to the Abbey. The
realisation of it was like the discovery of simony and self-seeking in
the character of one beloved. She stood motionless, staring at the
door beyond which Silvius listened. And the day seemed bitter and
sordid to her after the night of Aymery’s vigil.
“Such things as I receive,” she said, “shall be laid before the
altar,” and from that moment she felt that she hated Silvius because
she had seen the motives that moved his soul.
“That is well, Sister,” he answered her. “St. Martin is generous to
all who give.”
The almoner went away grumbling to himself, disgusted as any
Jew that a man who had benefited should have left nothing in
return.
“The woman needs more shrewdness,” he thought. “Nor have we
had any marvel from her yet to open the people’s hearts, and
purses. God grant that we have not made an indifferent bargain. We
are losing rental, and giving food and gear,” and he returned in a
temper, and thought mercenary thoughts all through Matins in the
Abbey Church. For to Silvius his “house” was a great treasure-chest
to be guarded, and enriched.
Denise was glad when Silvius had gone, and though she strove
to put the sneering suspicions from her, they remained like dead
trees, white and ugly in the green of a living wood. To count the
money in the alms-box, to clutch at the offering, with the prayer
hardly gone from the mouth! It was not in her soul to suffer such a
traffic.
The day seemed very grey to her, though the sun was shining,
because of that other thing that haunted her more than the thought
of Dom Silvius’s keenness. She felt more and more that the virtue
had gone out of her, and that the Lord of the Abbey would have no
miracles to bring him treasure. If this thing were to mature, what
then would follow? She shut the eyes of her soul to it, and tried to
think of that night in May as but the memory of an evil dream.
 CHAPTER XIX
From the gold of the wheat harvest to the picking of red apples
no great time passes, yet in those few weeks the people began to
scoff openly at the healing powers of Denise. She had been brought
in with such quaint pomp and ceremony, with such singing, and such
a show of blossom on the boughs, that folk had looked for a
wonderful fruiting, and for an especial blessedness that should show
itself in each man’s house.
Denise, poor wench, had come into the wilds of life, to find
primitive things dragging her beautiful altruism into ruins. She had
lost her wings and could no longer soar, because of the earthliness
that grew more apparent to her day by day. Everything that she
attempted failed with her, and faith in her own power dwindled out
of her heart. Long ago she had noticed the prophetic change in Dom
Silvius’s attitude. He was suspicious, grieved, hesitatory, always
hoping for some lucky miracle, some splendid coincidence that might
fire the beacon of his imaginings. He had boasted a little of this
Virgin Saint out of the woods, and the eyes of some of the Brethren
were beginning to twinkle.
One sunny day early in October Dom Silvius went down to the
stews to fish. There happened to be some of the younger monks
there, and Guimar the hosteler, a long, lean quiz of a man whom
Silvius hated.
“Brother,” said he to the almoner. “Have you come to fish?”
Dom Silvius answered the question by settling his stool with
great deliberation at the edge of the pond. Guimar glanced at the
rest.
“My Brothers,” he said. “See, here is Silvius come a-fishing. Let
us kneel and pray for him, and perchance his saint may catch a
miracle!”
They all laughed at the joke, all save Silvius, who bit his lips. And
from that moment his pride began to work like a slow poison in him,
filling him with a hatred of Denise.
Once only, and that in August, Father Grimbald had come
stalking up the hill to Virgin’s Croft, when the people were busy with
the harvest, and there were none to see his coming. What he said to
Denise, and she to him, no man knew, for Grimbald held his peace
concerning it. But Denise wept when he had gone, bitter,
impassioned tears that welled up out of her heart. Grimbald’s brow
was heavy with a thunder cloud of thought as he trudged home to
Goldspur over the hills. He opened and closed his great fists as he
went, as though yearning to smite something, or to take an enemy
by the throat. He had been unable to learn much from Denise, save
that she seemed unhappy, and that she had left Goldspur because of
the violence of the times. Grimbald had his own suspicions, but
speak them he could not, though he was troubled within himself for
Denise’s sake. He knew that it had not been a matter of vainglory
with her, a desire to be flattered by the worship of a wider world.
Oswald’s tale of the Devil on the Black Horse loomed largely in the
background of Grimbald’s mind. Denise had hidden something from
him. Of that Grimbald felt assured.
The burgher folk of Battle and the people on the Abbey lands
began to have their grievances against Denise, grumbling with
superstitious pettiness because their hopes had profited so little.
There was a multitude of small things remembered against her, for
of what use was a holy woman if her sanctity brought no blessings.
Grubs had attacked the apples; why had not Denise prevented that?
The sheep had been worried with the “fly”; again Denise had been
besought to pray against the pest. Many of the wells had run dry
with the hot summer; what was the use of a saint who could not
bring back water?
There were many more things quoted against her.
Mulgar the carrier had brought a horse cursed with “wind
sucking” and the staggers. A holy woman should be able to conjure
such trifles, and Mulgar had brought three pennies as an offering.
The horse had died on the road next day.
Gilbert the miller was plagued with rats. And the rats prospered,
even though he had brought a dead buck rat to Denise, and
besought her to curse the vermin.
Olivia, the goldsmith’s wife, brought a girl with a purple birth-
mark on her cheek. She desired Denise to touch the stain that it
might disappear. The birth-mark remained for all to see.
A woman in child-bed sent for Denise’s blessing. The child was
still-born the very same night.
Well might Denise feel that the virtue had gone out of her, that
the people were beginning to mock, and that her prayers were as so
much chaff. The bitterness and the humiliation were not of her own
seeking. They had set her upon a pinnacle, crowded about her
open-mouthed, ready for the blessings she should bestow. Her white
garments, and her burning aureole of hair had dazzled them, and
the power of her beauty remained with her still. But the mystery was
passing; she had profited none of the people; her prayers had burst
like bubbles in the air. And since the human heart is ever a fickle
thing, ready to scoff and sneer, and think itself cheated when its
own fancies fall to the ground, the very children began to catch the
spirit of their elders, and to throw surreptitious stones at Denise’s
door. They invented a game, too, that they called the Silly Saint, in
which one of the girls wore a halo of straw and attempted to work
wonders which were never wonderful, till the audience rose and
rolled her in the grass. No one chided them for such indecent
blasphemy. Even Dom Silvius was ready to wash his hands of
Denise.
There were more sinister whisperings in the air as the autumn
drew on and merged into the winter. Bridget, the smith’s wife, whose
boy had died on Denise’s knees, had set her tongue and her spite
against the saint. The woman had been very bitter against Denise all
through the summer, laughing maliciously over her failures, and
nodding her head with the air of “I could have told you so.” When
neighbours had still seemed credulous, she had put her tongue in
her cheek, and mocked.
Bridget and some other women were spreading their linen on the
grass one windy October day, and their talk turned upon Denise. As
women will, they spoke of the things that had been noised abroad of
late. There were some that said that Denise was no saint, that she
was no better than they themselves were, far worse in fact because
of her vows. It had been told that a strange knight had kept a vigil
near her cell, and the women laughed, as only women of a kind can.
Bridget, the smith’s wife, was the bitterest of them all, because
of her dead child, and the spite that she had nurtured against
Denise. And as they spread their linen on the grass she began to
tease the women, and to tantalise them with all manner of cryptic
nods, and sneers, and insinuations. The end of it all was that much
of the linen blew hither and thither because the women were so
eager to listen to Bridget, and forgot to weigh the sheets and body
gear down with stones.
Bridget was the fat hen with the worm in her beak, and they all
crowded about her as though to thieve it. But all she did was to
laugh and to smooth her frock with her two hands.
The women set up a great cackling, and then ran to and fro to
catch the linen that was blowing in the wind.
“Blessed Martin,” said one, “when the Abbot hears of it!”
“A mighty poor miracle for Dom Silvius to boast of! I could do as
well myself.”
 CHAPTER XX
The early days of December found Earl Simon lodged at
Southwark, while the King and his men prowled to and fro in Kent,
coveting England’s sea gate, Dover, that the barons had taken in the
summer. Earl Simon had no great gathering with him in Southwark,
for he had London at his back, an ant’s nest into which the King
would not venture to thrust his spear. There had been much
bloodshed and violence in the land, and it was De Montfort’s hope
that Henry would show some wisdom now that he had seen many of
his great lords in arms against him. A truce had been mooted, with
Louis of France to judge between the two parties. Yet no man
trusted Henry, because of his fickleness and his foolish cunning, and
because of the favourites who had his ear.
Henry had hated the Londoners with exceeding bitterness since
they had pelted his Queen from London Bridge when she had sought
to escape to Windsor in the summer. They had thrown stones and
offal at her barge, and the King, and Edward his son, talked of the
blood of the city as though it were the blood of swine. It was even
said that they had sworn upon relics to make a slaughter there that
should be remembered for many years. Yet a number of the
wealthier merchants were for the King, partly because they hated
the lesser men and the mob, and partly because they had taken
bribes. There was treachery afoot of which Earl Simon knew nothing,
nor had he any foreshadowings of the peril that was near.
Early in December Henry had attempted to win his way into
Dover. The attempt had failed miserably; and the news was that he
and his men were still lingering on the coast. No one thought of him
as within ten leagues of London; the traitors in the city were alone
wise as to his plans. Earl Simon remained in Southwark, debating
the future with the barons who were with him, and with the
Londoners who would hear of nothing but that the King should
swallow the Great Charter, and that the Provisions of Oxford should
hold. They had not forgotten Richard of Cornwall’s corn ships, and
the way Henry had attempted to play the Jew at the expense of the
starving poor.
It so happened that Aymery was in the saddle one December
evening as the darkness came down over the land like a rolling fog.
Rain had begun to fall, a fine drizzle that made the fading horizon in
the west a dim grey streak. Infinite mournfulness breathed in the
gust of a wet winter wind. Tired horses plodded past Aymery as he
sat motionless by the roadside, the hood of his cloak turned over his
helmet. A party had been out to bring in forage, and Aymery had
had the handling of the escort, a few archers and men-at-arms.
The last tired horse had gone splashing by, and the creaking of
the saddles and the breathing of the beasts were dropping into the
darkness before Aymery turned to follow his men. He was about to
push his horse to a trot when he heard the sound of a man running
along the wet, wind-swept road. Aymery drew up across the road,
and saw a figure come out of the darkness, head down, hands
paddling the air.
The man seemed to see neither horse nor rider till he was almost
into them. He stumbled, recovered himself, and drew back out of the
possible reach of a possible sword.
“Montfort—Montfort?”
Aymery reassured him, and he staggered forward and leant
against Aymery’s horse, panting out his news, for he had run two
miles or more.
“Lording, there is an army on the march down yonder. I was
carrying faggots from a wood, when I saw them riding out of the
dusk. Their vanguard halted under the wood, and I hid myself, and
listened, and then crept away and ran like a rabbit.”
He panted, pressing his ribs with his two hands, as though his
heart was gorged with blood. Aymery bent down, and looked into
the hind’s mud-stained face.
“Quick, good lad——”
“It was the van of the King’s host, lording, they are riding on
Southwark out of the night.”
“How near are they?”
 “The wood is a mile beyond the cross where the roads branch.
They were resting their horses, the beasts had been hard ridden,
and their bellies were all mud.”
Aymery straightened in the saddle, and sat motionless. The night
gave no sound for the moment save the soughing of the wind
through some poplars that grew near. Half a furlong away the
darkness thickened into a black curtain, hiding the world, tantalising
those who watched with the wraiths of a thousand chances.
Yet, as they waited there on the wet road, a confused sense of
movement came to them from somewhere out of the darkness, like
the sound of the sea galloping in the distance over a mile of
midnight sand. Aymery swept round, pulled off his glove with his
teeth, and threw it at the man’s feet.
“Look to yourself, my friend,” he said. “They are coming through
the night yonder. Bring that glove to the Earl, and you shall have
your due.”
Aymery clapped in the spurs, and went away at a gallop. He did
not doubt that it was the King’s arms behind him, pouring upon
Southwark to surprise De Montfort’s weak force there, and take him
or slay him before the Londoners could gather to his aid.
As Aymery galloped through the night, the lights of Southwark
and of the city beyond the river came to him in a blur through the
mist of rain. He did not slacken even when he came to the outskirts
of the place, but rode straight for the Earl’s lodging, shouting to
those whom he passed in the street.
“Arm, arm,” was his cry as he galloped through. “The King’s men
are on us.”
And so he brought the news to Simon the Earl.
De Montfort and his knights and gentlemen were at supper, but
they left the wine cups unemptied, and made haste to arm. The Earl
sent his son Simon to ride across the bridge and rouse the train-
bands in the city. The narrow streets and alleys of Southwark were
soon in a great uproar with the running to and fro of men, the
tossing of torches, and all the tumult of a hurried call to arms. A bell
began to clash somewhere up in the darkness. The narrow ways
were full of movement, of an infinite confusion that struggled and
chafed like waters meeting and beating against one another.
Trumpets blared. Leaders sought their men, men their leaders. From
beyond the river also bells began to peal, the city was bestirring
itself, and humming like a hive of bees.
Aymery, rushing out from the Earl’s presence, ran against a man
with a fiery tangle of bright-red hair. It was Waleran de Monceaux,
that rebel of rebels, driven by Gaillard out of Sussex. He caught
Aymery by the shoulder, and blessed God fiercely because the
Sussex men were the first to show their shields.
“Brother,” he shouted, “I have thirty spears for a charge home. I
heard you were here. Come. We shall have the van.”
They went out together into the street where some of the Earl’s
men were already under arms. None the less there was a dire tangle
everywhere, the place choked with disorder that promised well for
the King’s men if they lost no time. Aymery and Waleran found their
bunch of Sussex spears standing steady and stiff for the night’s
need. They were soon joined by other knights and their men who
gathered out of the wet gloom. De Montfort himself came out, and
ordered his archers forward into the outskirts of the suburb, to scout
and discover what was happening in the darkness yonder.
A shout rose suddenly, and went from mouth to mouth. Young
Simon came out of the darkness with torches, riding his white horse,
and a mob of half-armed men with him.
“Sire, treachery, the gates at the bridge are locked.”
Such in truth was the case, for the King had planned the trick,
and those of the wealthier citizens who were in his pay had locked
the gates and thrown the keys into the river.
Simon saw his imminent hazard, but his sword was out to
hearten his men.
“Break down the gates.”
And then, standing in his stirrups:
“Sirs,” said he, “let the King’s men come to us. They will find it
hot here, despite the rain.”
A number of archers came running back out of the night,
shouting that masses of men were pouring along the dark streets at
their heels. A blare of trumpets tore the darkness. The narrow main
street began to roar with the rush of mounted men. The Earl’s
trumpets gave tongue in answer. In an instant a black torrent
poured forward as though a dam had broken, and fell with fury upon
the flood that lapped from wall to wall.
A man has no time to remember what happens in such a fight
when he is caught by a whirlwind of human fury, and driven this way
and that. Horses reared, fell, and crushed their riders. The narrow
street rang like a hundred smithies. Blows were given and taken in
the darkness, men grappled together in the saddle, for there was no
room often for the swing of a sword. Aymery found himself and his
horse driven against the wall, and pinned there by the mass that
filled the street. He struck out, with cries of “Montfort, Montfort,”
and was struck at in turn by those who bawled for the King.
Aymery found himself being forced along the wall his horse,
scared and maddened, backing along the street. The tide had turned
in the King’s favour. The Earl’s men were being driven by sheer
weight of numbers. The night had a black look for Earl Simon and
his party.
Of what followed Aymery could have given no clear account, all
that he knew was that he went on striking at those who struck at
him, and that he remembered wondering that he had not been
wounded or beaten out of the saddle. His brain seemed to become
dulled by the din and clangour, and by the tumult in the darkness
and the rain. A roar of voices rose suddenly, flowing from
somewhere out of the night. “Montfort, Montfort!” A great rallying
cry came up like the sound of the sea, for the Londoners had broken
the gates, and were pouring over the bridge into Southwark to
rescue the Earl.
For a while the fight stood still, and then slowly, and with a sense
of infinite effort it began to roll towards the fields. New men seemed
to come from nowhere, streaming up alleys and side streets to break
in on the flanks of the King’s party. Aymery found himself with space
to breathe; his sword arm ached as though he had been swinging a
hatchet for an hour. Comrades came up on either side of him, they
gathered and pushed on, shouting for Earl Simon, and fighting
shoulder to shoulder, Aymery found the street opening suddenly
upon a small square before a church. In one corner a torch had
been thrust into an iron bracket on the wall of a house, and still
burning brightly, despite the rain, it seemed to serve as a rallying
point for those whose stomachs were not sick of the fight.
It was becoming a hole and corner business now, a question of
group fighting against group, man against man. Each party had been
tossed into so many angry embers, like a fire scattered by a kick of
the foot. The Londoners were still streaming over the bridge. Their
shouts of “Montfort, Montfort,” held the night. The surprise had
failed, thanks to the hind who had run two miles in the mud.
Aymery was pushing his horse across the square, battered shield
forward, right hand balancing his sword, when his eyes were drawn
towards a skirmish that was going on where the torch burnt in the
bracket on the wall. A big man in green surcoat, and mounted on a
black horse was keeping some of the Londoners at bay. And behind
the green knight, just under the torch, Aymery saw a knight in a
blue surcoat on a grey horse, a contrast in colours that struck him as
familiar. The blue knight was taking no part in the tussle. His
comrade seemed to be defending him, backed up by a few men-at-
arms whose harness gleamed in the light of the torch.
Aymery spurred forward, and came to blows with the man in
green. Nor had he had much to boast of when a mob of Londoners
came up at a run and broke into the thick of the scrimmage. Aymery
found himself driven close to the knight in blue. He struck at him,
but the other seemed to have lost his sword, for he did nothing but
cover his head with his shield. Aymery caught the blue knight’s
bridle, and urged both the horses out of the press. He had a glimpse
of the man on the black horse trying to plunge through the
Londoners towards him. But he was beaten back, and disappeared,
still fighting, into the night.
Aymery got a grip of the blue knight’s belt. The man appeared to
have little heart left in him, for he dropped his shield, and
surrendered at discretion.
“Quarter, messire, quarter.”
The voice that came through the grid of the great battle helmet
seemed more the voice of a boy.
 Aymery kept a firm hold of the gentleman, and rode back with
him into the main street. The grey horse went quietly as though
thoroughly tired of the night’s adventure. Aymery had no trouble
with either beast or man.
A great crowd had gathered at the bridge head. Earl Simon was
there, guarded by an exultant and shouting mob of Londoners who
were carrying him across the bridge into the city. The crowd was so
great that Aymery had to halt with his prisoner, and bide his time.
Torches had been lit and their glare and smoke filled the street
where a thousand grotesque faces were shouting “Montfort,
Montfort.”
Aymery felt a hand touch his arm, for he still had hold of the blue
knight’s sword belt.
“Ah, messire, see what manner of prisoner you have taken.”
The blue knight had lifted the great helmet and let it fall with a
clash upon the stones. Aymery saw masses of dark hair flowing, and
a white face looking into his.
“Mother of God,” said he, “what have we here?”
“A woman, lording,” and she laughed a little, and then said again,
more softly: “A woman.”
Aymery scanned her by the light of the torches, and it seemed to
him that he had seen her face before. Her hair was dark as night,
her skin the colour of a white rose, and she looked at him with eyes
that seemed full of an amused yet watchful glitter.
For the moment Aymery thought of letting her go free, but the
lady herself appeared to have no such ambition.
“I am in your hands, messire,” she said. “Keep me from the mud
and the mob, and I will thank you.”
Aymery asked her name, being puzzled to know what to do with
such a prisoner.
“My name?” and she laughed, and gave him a look that was
meant to challenge a possible homage. “I dropped my name with
my shield. Nor would you know it if I told it you.”
Aymery was asking himself what had best be done with this lady
in man’s guise. To many men the answer would have been gallant
and none too difficult. But Aymery coveted neither the responsibility
nor the possible romance. Nor was he sorry when a happy chance
intervened between him and the dilemma.
A number of knights came riding out of Southwark with Simon
the Younger on his white horse at their head. And Simon who was
an adventurous and hot headed gentleman with the eyes of a hawk
when a woman was concerned, caught sight of Aymery and his
prisoner, and swooped down instantly towards the lure.
“Hallo, my friend, who are you, and what have you here?”
Aymery showed his shield, but the Earl’s son recognised his face.
“Sir Aymery, out of Sussex! And what is this treasure, messire,
that we have taken?”
At the sound of Aymery’s name the woman’s eyes had darted a
look at him, like the momentary gleam of a knife hidden under a
cloak. Then she moved nearer to young De Montfort, and was soon
speaking on her own behalf.
He bowed gallantly to her when she had done.
“Since you offer us no name, madam,” he said. “Let us call you
Isoult of the Black Hair. I am Simon, the earl’s son. Also, I am your
servant, unless our friend here stands between us.”
Aymery renounced all prestige, not having Simon’s capacity for
instant infatuations.
“It is no concern of mine, sire,” he said, with a bluntness that
was hardly courteous to the lady.
A laugh hailed this frankness. De Montfort’s son was looking at
Etoile.
“Will it please you to command my courtesy?” he asked.
Etoile smiled at him. He took her bridle, and they went riding
together over London Bridge into London City. Nor did Simon guess
that this was the first ride along a tortuous road that would lead him
to bring death upon the great earl, his father.
 CHAPTER XXI
Winter had come, and since Denise’s cell stood on the northern
slope of Mountjoye Hill, it was bitter cold there, nor would the north
wind be stopped by such things as a thorn hedge or a closed door.
To Denise the cold was but part of the misery that was closing upon
her, for people were hardier in those days, and less softened by the
luxury of glass and carpets. But it was not the cold that kept her
wakeful through the night, but the blank and unpitying face of the
future that never departed from before her eyes. Denise knew the
truth now, and soon the world might know it also.
The Abbey folk had sent her no winter gear, but that was Dom
Silvius’s affair, perhaps due to his meanness, or his discontent with
her, or to the feeling that a recluse whose prayers went unanswered
needed to be chastened by wind and frost. It seemed very far from
that day in May when the meadows were sheeted in gold, and the
singing boys sang her into the Abbey leuga. Denise would have had
no winter clothes, had not a good woman who distrusted Dom
Silvius, sent her a lamb’s-wool tunic, and a cloak lined with rabbit’s
skin.
So the winter deepened, and Denise saw always that shame that
was coming nearer day by day. She knew now how utterly she had
failed, and the reason thereof seemed in herself. Life had thrust
hypocrisy upon her insidiously and by stealth. She would have fled
from it, but the wide world seemed cold and empty, nor was she free
to follow her own will. Reginald the Abbot was her lord now, both in
the law and in the spirit, he could have her taken if she fled,
condemned, whipped, and turned forth with contumely in the eyes
of all. Denise had her woman’s pride, a pride that shrank from the
thought of a public scourging and of open shame.
Two weeks or more after Christmas, on a clear frosty morning,
three women came to Denise’s cell, and one of these women was
the smith’s wife, Bridget. They had loitered on the road awhile,
talking volubly, priming one another for some enterprise. No one had
come near Denise for a month or more, save the Abbey servant who
left food at the cell, but never saw her face.
So the three women came to Denise’s cell, and stood before the
closed door, smirking and making a mystery of the event. They had
christened each other “Warts,” “Sterility,” and “Thorn-in-the-Thumb,”
and their business was to win a glimpse of Denise.
Dame Bridget, or “Thorn-in-the-Thumb,” made a devout
beginning. She was a big woman with a high colour, and a mouth
that was generally noisy, a woman of coarse texture, and of gross
outlines that showed Nature as a craftswoman at her worst.
Bridget had picked up some Latin words, and she began with
these, as though such a prelude would impress Denise with their
seriousness in coming.
“Sister,” she said with a snuffle, when she had come to the end of
her Latinity. “Here are three poor women in need of a blessing. We
pray you to come out to us, Holy Sister, and to touch us with your
hands.”
Denise had no thought of treachery that morning, and she
opened her door, and stood there on the threshold. The three
women were kneeling humbly enough in the wet grass, their hoods
drawn forward, their hands together as in prayer.
Bridget showed a thumb red and swollen about the pulp.
“There was a thorn twig in a faggot, Sister,” she said. “I laid my
hand to the sticks, and the thorn went into my thumb. It has kept
me awake o’ nights with the pain of it.”
Then Sterility had a hearing, and while Denise bent over her, for
the woman chose to whisper, Thorn-in-the-Thumb nudged Warts
with her elbow, and stared Denise over from head to foot.
Lastly, Warts displayed her imperfections, looking most meekly
into Denise’s shadowy eyes. And when Denise had touched them all
and given them her blessing, the three women departed, walking
very circumspectly till they gained the road. Then Thorn-in-the-
Thumb flung her arms about the necks of her neighbours, crumpled
them to her, and laughed gross laughter that was not pleasant to
hear. And they went up the hill together, gaggling like geese,
blatantly exultant over the thing that they had discovered.
Very soon hardly a man or woman in the five boroughs of Battle
had not heard what Bridget and her neighbours had to tell. Rumours
had been rife of late, but this last cup was spiced with the palatable
truth. The women spoke more loudly than the men, were more
strenuous and vindictive, more self-righteous, more eager to have
the hypocrite proclaimed. Mightily sore were some of the worthy folk
who had gone on their knees for nothing before Denise’s cell. They
were quick to cry out that they had been cheated, more especially
those who had left an offering to bribe the Blessed Ones in Heaven.
The insolence of this jade, setting herself up as a virgin and a saint!
“Out with her,” was the common cry. As for Dom Silvius he was little
better than a fool.
With all these hornets humming even in the midst of winter,
some of the older burghers and the head men of the boroughs went
secretly to speak with Dom Silvius, and to show him discreetly how
matters stood. Such an open sore needed healing; it was an offence
and an insult to St. Martin, and the saints. Old Oliver de Dengemare
was their spokesman, a man with a wise eye and a sagacious nose.
Dom Silvius kept an imperturbable countenance, and heard them out
to the bitter end, though inwardly he was aflame with wrath and
infinite vexation. “The jade, the impudent jade.” His brain beat out
such imprecations while the old men talked.
No sooner had they gone than he crept off to whisper it all to
Reginald the Abbot. Now Reginald was a man of easy nature, bland,
kindly, one who chose a suave word rather than a sour one. Silvius
came to him, cringing yet venomous, slaver dropping from his mouth
as he stuttered and spat his wrath. He took the thing as infamous
towards himself; the greed, the self-love, and the ambition in him
were tugging at the leashes.
“Let them hound her out and spit upon her,” he said, driving the
nails into the palms of his hands, the muscles straining in his
pendulous throat. “Let them spit upon her.”
Abbot Reginald placed the sponge of his placidity over Dom
Silvius’s mouth.
 “Brother,” he cautioned him; “such things should not be spoken
till the anger is out of one. A hot head at night calls for penitence in
the morning.”
He saw very clearly how matters were with Silvius, that the
monk’s zeal had turned sour, and sickened him; and that he was
mad that all his astuteness should have taken, in the eyes of his little
world, the motley of the fool.
“You are too hasty, my brother,” he said. “Does a man whose wife
has lost her virtue, shout it from the house-tops? Come, my friend,
let us consider.”
But Silvius would not be appeased. The fanatical cat had spread
its claws, a beast more cruel than any creature out of the woods.
Reginald of Brecon watched him, as a fat man who had dined well
might watch the petulant tantrums of a child. He took to turning the
ring upon his finger, a trick habitual with him when he was deep in
thought.
“It is growing dark,” he said at last, glancing at the window.
Then he rose and stood awhile before the fire. Silvius had ceased
to spit and to declaim.
“My cloak and hood, Brother Silvius. You will find them there in
the recess.”
The monk obeyed his lord. When he returned with the cloak,
Reginald held up two fingers, and spoke one word:—
“Peace.”
There was not the glimmer of a star in the sky when two dim
figures climbed Mountjoye Hill. A north wind was blowing and
whistled coldly into Reginald’s sleeves. Dom Silvius jerked from side
to side, looking restlessly into the darkness as though his blood were
still hot and bitter in him despite the cold. Reginald understood the
savage impatience that possessed his monk, for he bade him wait at
the gate in the hedge, and went on alone to the cell.
Silvius kept watch there, striding to and fro, blowing on his nails,
and beating his arms against his body like a great black bird. He
envied his Abbot the rights of an unbridled tongue, for Silvius would
have been a libertine that night in the matter of godly invective and
abuse. He could hear voices, the dull, half-suppressed voices of
people who spoke earnestly, and yet with passion. Once he thought
that something stirred in the hedge near him, for he was startled,
and stood still to listen. A prowling fox might have taken fright, or a
bird fluttered from its roosting place.
Meanwhile on the threshold of that dark cell stood Reginald the
Abbot, shocked, unable to retain much store of anger. A shadowy
something knelt there close to him. The very heart of Denise
seemed under his feet.
“Lord, let me go,” was all that she could ask.
And again—
“Lord, let me go, away yonder, into the dark.”
Reginald looked down at her from the serene height of his
abbacy.
“Daughter,” he said at last, with no sententiousness, “go, and
God pity you. It is better that this should end. Yet, wait till the day
comes. You would lose your way on a night such as this.”
“I will wait, lord,” she answered, utterly humble because of his
kindness, and her own poignant shame.
When Abbot Reginald returned through the gate in the thorn
hedge, Dom Silvius’s voice hissed at him out of the darkness, for the
cold had sharpened a venomous tongue.
“The jade, has she confessed?”
Reginald was possessed by a sudden unchristian lust to smite
Dom Silvius across the mouth.
“My son,” he said very quietly, “take care how you cast stones.”
And he was more cold to Silvius on the homeward way than the
breath of the winter wind.
But Silvius, that dreamer of dreams, that most mundane monk,
who thought more of the jewels crusting a reliquary than the Cross
of Christ, did a vile and a mean thing that night. Denise, poor child,
was to slip away, so Reginald said, at dawn; but Reginald did not tell
Dom Silvius that he had left money on the stones whereon she
knelt. And Silvius, still venomous because he deemed himself
befooled, took pains to betray Denise’s secret going. And the
method of the betrayal was the meanest trick of all.
 When he had seen Abbot Reginald safe within the Abbey, he
called two servants and went out with a basket of victuals to visit
certain of the sick poor. That the hour was a strange one for such
charity counted for nothing with Silvius whose head was full of the
ferment of his spite. Many of the folk had gone to their beds, but
some few he found still lingering about the covered embers on the
hearth.
It was counted for holiness to Silvius that he should come on
God’s errand at such an hour.
“Feed my sheep,” the Lord had said.
And Silvius fed certain of them that night with hypocritical
humilities, shaking his head sadly, and dropping a few treacherous
words like crumbs into mouths that hungered.
 CHAPTER XXII
A red, wintry dawn was in the east when Denise stood ready for
her flight from the Abbey lands, her rabbit-skin cloak about her, and
the hood drawn over her head. She had knotted the money that
Reginald had given her into a corner of her under tunic, and the
food that she had saved from yesterday she carried wrapped in a
clean cloth. Denise had thought of seeking Grimbald, but her heart
had failed her at the thought of meeting the familiar faces of the
people who had looked upon her as something superhumanly pure
and wonderful. The passion that obsessed her for the moment was
the passion to escape from the inquisitive eyes of those who knew
her, and to slip away into the world where she would be nothing
more than a mere woman.
A robin twittered on the thorn hedge as she left the cell and,
crossing the grass, went out by the wicket gate. The land was white
with hoar frost, each twig and blade beautiful to behold, and the
arch of the east red with an angry dawn. The hills looked big and
blue, and very sombre, and in the north the sky had an opaqueness
as of coming snow.
The brittle silence of a frosty morning seemed unbroken as yet,
and Denise, after looking half fearfully about her, came out from the
shadow of the thorn hedge, and walked quickly in the direction of
the road. She would be away and over the Abbey bounds before
anyone knew in the town that she had gone. Reaching the road, she
climbed down the path into it, for the road ran in a hollow there. A
bramble had caught the latchet of her shoe and pulled it loose, and
Denise bent down to refasten it, putting the cloth with the food on
the bank beside her.
Now Dom Silvius’s treachery had betrayed her to the people, and
Denise, as she fastened her shoe-latchet, was startled by a shrill,
gaggling laugh that seemed to rise out of the ground close to her.
The banks on either side of the road were covered with furze
bushes, and a number of these bushes were suddenly endowed with
the miraculous power of movement. They rose up from where they
had grown, and came jigging down the steep banks into the road.
Moreover these same furze bushes burst into loud laughter, and
began to crow with exultation.
“A miracle, a miracle!”
“St. Denise has worked a wonder, at last!”
“Holy virgin, see how the bushes dance!”
Denise stood still at the foot of the bank, and the furze bushes
came jigging round her like mummers in a mask. Flapping skirts and
shuffling feet gave a human undercurrent to the green swirl of the
furze. Now and again she saw a red, triumphant face, or a pair of
brown arms holding a bough, while the frolic went on with giggles
and little screams of laughter. Then, at a given shout from one of
them, these women of the winter dawn flung their furze boughs
upon Denise, as the Sabines threw their shields upon Tarpeia.
The thorns were as nothing compared with that circle of coarse
and jeering faces that stood revealed. Old hags with white hair,
skinny arms, and flat bosoms; women in their prime, rough and
buxom, with hard features and loud mouths; young girls, whose
tongues were pert and insolent. Bridget, the smith’s wife, led this
wolf pack, like a hungry and red-eyed dam.
Denise’s face was bleeding, but she did not flinch now that her
pride had been driven against the pricks. She looked round at the
women, holding her head high, although they had beaten her across
the face. And for the moment the women hung back from her as she
pushed the furze boughs aside, and made as though to pass on
without answering a word.
Bridget, the smith’s wife, stood in her path. She flung up her
head and laughed like a great raw-boned mare, and an echo came
down from Mountjoye Hill like the answering neigh of a horse. On
the ridge above, where the dawn light shone, were crowded the
men who had come out to see their women bait Denise.
Bridget began the savage game with a word that brought the
blood to Denise’s face. The women shrieked with delight. Taunts
struck her on every side as they crowded close on her, gloating,
screaming, their mouths full of cursing and derision. They began to
shake their fists, and to stretch their claws towards her, and the
smell of their bodies was in her nostrils.
Bridget swung forward, and spat in her face.
“She would work miracles, this jade, this wanton! Where is my
boy, you minion? Answer me that, I say!”
“Where is your man, eh?”
“We know him, we know him! Let him show his face here!”
“Look at her, the pretty jade!”
“Spoil her beauty. Strip her naked.”
“Out with the harlot. Let her freeze.”
Warts, Sterility, and fifty more were howling about her, drunk
with the very noise they made. For a moment Denise stood white-
faced in the midst of them. Then she disappeared in a swirl of
coarse and violent movement, like a deer that is dragged down and
smothered beneath the brown bodies of the wolves.
The road that morning was a martyr’s way as the redness of the
dawn waned and the sky became cold and grey. Mouths spat upon
her, hands smote her, and clutched at her clothes. Buffeted at every
step, jostled, and torn, she was brought to the boundary of the
Abbey leuga, and driven out thence into the world. The women even
caught up stones and pelted her when they had let her go,
screaming foul words, and laughing in loud derision.
Denise was as dazed and as exhausted as though she had been
wrecked, and washed ashore half dead by some lucky wave. Her
face was bruised and bleeding, her clothes in tatters, her tunic torn
open so that her bosom showed. She drew her ragged clothes about
her, and went unsteadily down the road, with the cries of the women
still following her as she went. Denise’s pride made a last brave
spreading of its wings. It carried her beyond the sound of those
voices, though her feet dragged, and her knees gave under her, and
a kind of blindness filled her brain.
Perhaps she struggled on for a mile or more before she turned
aside, and lay down under some hazels beside the road. And as she
lay there, dull-eyed, grey-faced, and still half dazed, the power to
think came back like the sense of reviving pain. Horror of herself and
of the world took hold of her by the throat. It was as though those
women had spat upon her soul, and made her revolt from herself as
from something unclean. Those mocking faces symbolised the
mercies of her sister women. All those who knew the truth would
scoff, and draw away their skirts. She was an outcast, a thing whose
name might broider a lewd tale.
Denise was no ignorant child, but a grown woman, yet she was
weak and in pain, and her very weakness made her anguish the
more poignant. She lay there a long while under the hazels, not
noticing the cold, nor the sodden soil, for her heart seemed colder
than the frost. Life held its helpless, upturned palms to the
unknown. What use was there in living? God had deserted her, and
had suffered her innocence to be put to shame. She was too weary,
too miserable even for bitterness or for rebellion. Inert despair had
her, body and soul.
Presently a boy came along the road towards Battle, driving an
ass laden with paniers full of bread. Close to the spot where Denise
lay under the hazels, the ass was taken with the sulks, and stood
obstinately still. The boy tugged at the bridle, shouted, thwacked the
beast with his stick, but make her budge he could not. Denise sat up
and watched him, this piece of byplay thrusting a wedge between
her and the apathy of despair.
The boy was a sturdy youngster, with brown face, brown smock,
and brown legs splashed with mud. He rubbed his nose with a
brown hand, and catching sight of Denise, took her to be a beggar,
and perhaps a bit of a witch.
“Hi, there,” he shouted, “give over frightening the beast.”
“It is none of my doing,” she said, surprised somehow at the
sound of her own voice.
“She stopped here, none of your tricks, old lady,” said the boy.
Denise put back her hood, and the youngster stared.
“Lord,” said he, “you have been fighting, and you are not old,
neither!”
His curiosity was curtailed by the curiosity of the ass, who took to
kicking, sending sundry loaves rolling on the road.
“Hi, there, come and help.”
 Denise rose up, and went towards the struggling pair. She took
the bridle from the boy, and began to pull the donkey’s ears, to rub
her poll, and talk to her as though she were a refractory child. The
beast grew suddenly docile, and the bread was saved.
Denise helped the boy to pick up the loaves. He looked hard at
her when they had refilled the paniers, and then offered one of the
loaves to Denise.
“Take it,” he said almost roughly, yet with the brusqueness of a
boy’s good-will.
“It will be missed.”
The boy gave a determined shake of the head.
“Father’s bread. The jade served him the same trick last week,
kicked the loaves on to a dung heap. He can’t blame me.”
He thrust the loaf into Denise’s hand, gave her a friendly grin,
and cut the ass viciously across the hind-quarters with his stick. The
response on the beast’s part was a wild and hypocritical amble.
This simple adventure on the road heartened Denise in very
wonderful fashion, even as the voice of a child may interpose
between a man and murder. It was like a mouthful of wine in the
mouth of one ready to faint upon a journey. Denise watched the boy
disappear, hardly thinking that she had been saved from despair by
the obstinacy of an ass. She had the loaf in her hand and the boy’s
smile in remembrance, and the mocking voices of the morning
seemed less shamefully persistent.
Denise broke and ate some of the bread, and finding a ditch near
with a film of ice covering it, she broke the ice with her shoe, and
soaking one corner of her tunic in the water, she washed the blood
from her mouth and face. It was then that she found the money that
Abbot Reginald had given her still knotted up in her clothes. And
these two things, the bread and the money, comforted her with the
thought that she was not utterly forgotten of God. Both blessings
had come to her by chance, but when a soul is in the deeps it
catches the straws that float to it, and believes them Heaven-sent.
Despite her wounds and her bruisings Denise walked five miles
before noon. The passion to escape from familiar faces and to sink
into the outer world, had revived in her. She skirted Robertsbridge
and its Abbey, crossing the Rother stream by a footbridge that she
found. On the hill beyond she met a pedlar travelling with his pack,
and taking out a piece of money bought a rough brown smock from
him, a needle and some thread. About noon she found some dry
litter under the shelter of a bank of furze. She put on her brown
smock, and mended her cloak, and then despite the January cold,
such an utter weariness came upon her that she fell asleep.
When Denise awoke it was with a rush of misery into the mind, a
misery so utter that she wished herself asleep again, even sleeping
the sleep of death. She was so stiff with the cold and her rough
handling that it hurt her to move, and the infinite forlornness of her
waking made her shudder. Something soft touched her face, like the
drifting petal of apple blossom out of the blue. A wind had risen and
was whistling through the furze bushes, and buffeting them to and
fro. The sky had grown very sullen. Snow was beginning to fall.
Denise dragged herself up and drew her cloak closer about her.
She must find shelter for the night somewhere, unless she wished to
tempt death in the snow. Yet she had gone but a short way along
the road when a sudden spasm of pain seized her, pain such as she
had never felt before.
Denise stood still, clenching her hands, her eyes full of a
questioning dread. The spasm passed, and she went on again
slowly, the flakes of snow drifting about her, the sky and the
landscape a mournful blur. She had walked no more than a furlong
when the same pain seized her, making her catch her breath and
stand quivering till the spasm had passed. Nor was it the pain alone
that filled her with a sense of infinite helplessness and dread. The
birth of a new and terrible consciousness seemed to grip and
paralyse her heart. She knew by instinct that which was upon her, a
state that called up a new world of shame and tenderness and fear.
Denise went on again, a woman laden with the simple and
primitive destiny of a woman. It so happened that she came to a
wood beside the road, and at the edge of the wood under the bare
branches of the trees she saw a lodge built of faggots, and roofed
with furze and heather. The place seemed God-sent in her necessity,
and her anguish of soul and body. Denise found it empty, save for a
mass of dry bracken piled behind some faggots in one corner of the
lodge. The place had a rough door built of boughs. Denise closed it,
and hid herself in the far corner of the lodge, sinking deep into the
bed of bracken. The pangs were upon her, and all the dolour and the
foreboding that take hold of a woman’s heart.
It was bitter cold that night, and the snow came driving from the
north, a ghost mist that wrapped the world in a garment of mystery.
The wind roared in the trees whose bare boughs clapped together,
creaking and chafing amid the roaring of the storm. It was a night
when sheep would die of the cold, or be smothered in the snow
drifts banked against the hedges.
The sky began to clear about dawn, patches of blue showing
between ragged masses of grey cloud. The sun shone out fitfully at
first, flashing upon a white world, upon a world of brilliant snow
schemes and glittering arabesques, with the wood’s sweeps of black
shadow across a waste of white.
The wind had dropped, and there was the silence of snow
everywhere, not a voice, not a sound, save the occasional creaking
of a rotten bough and the swish of its falling snow. The sun climbed
higher, and the whiteness of the world became a pale and blinding
glare.
Now, the silence of the wilderness was broken that morning by a
slow and steady sound that grew on the still air. It was the muffled
beat of hoofs upon the snow of the road that ran southwards along
the ridge of the hill. Presently the snorting of the horse, jingle of
metal and the creaking of leather were added to the plodding of the
hoofs. A man’s voice rang out suddenly into a burst of song. The
white world was glorious in the sunshine, marble and lapis lazuli,
with flashes here and there of gold.
The muffled beat of hoofs ceased by the wood where stood the
lodge built of faggots. The snow was virgin about it, and the man
turned his horse towards the wood, swung out of the saddle, and
began kicking the snow aside as though to give the beast a chance
of cropping the grass. Taking wine and meat from a saddlebag, he
brushed the snow from a log that lay outside the lodge, and sat
down to make a meal.
 And as he sat there in the sun he talked to his horse, and gave
the beast some of the bread from his own breakfast. The horse
nosed against him like a dog, its breath steaming up into the frosty
air, its eyes the colour of sapphires seen against the snow. And there
were no sounds save the man’s voice, the breathing of his horse,
and the dripping from the boughs as the snow thawed in the sun.
In due course the man remounted, and rode off down the road
with the morning sunlight upon his face. Cowering on the bracken in
the lodge Denise lay dazed, and weary, hands and feet numb with
the cold. She had prayed to God that the man might not enter the
place, and find her there on her bed of bracken. He had been so
near to her that she had been able to hear the sound of his
breathing, and even the breaking of the crust of the bread.
Beside her on the bracken lay a white thing that neither moved
nor uttered a cry. Denise lay and stared at it, half with dread and
mute wonder, half with a passion of primeval tenderness that was
too deep for tears. And as Aymery rode away from her into the
morning, she kept her vigil beside that innocent thing that did not
whimper and did not move. The snow and the secret silence thereof
seemed part of her life that morning, and the eyes of the world were
full of a questioning mist of tears.