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In his 1950 study of the history and practice of social interaction involving the exchange of “gifts,” Marcel Mauss does not intend, as he clearly explains, for his monograph to constitute so narrowly a focused subject matter as the mere exchange of gifts. Rather, he delves deeply into the subject of gift exchanges as a pretext for the development, or evolution, of economic theory and contract law. By focusing on “archaic” cultures, specifically, the Polynesians, Melanesians, and Native Americans of the Pacific Northwest, and the intricate processes by which gifts, including services and human beings, were historically transferred and reciprocated, he illuminates the broader societal and economic ramifications of such transactions. In his introduction to The Gift: The Form and Reason for Exchange in Archaic Societies, Mauss explains his concept of “total services” and the context in which these ancient customs and practices represented their own form of complex contract law:
“For years our attention has been concentrated on both the organization of contractual law and the system of total economic services operating between the various sections or subgroups that make up so-called primitive societies, as well as those we might characterize as archaic. This embraces an enormous complex of facts. These in themselves are very complicated. Everything intermingles in them, everything constituting the strictly social life of societies that have preceded our own, even those going back to protohistory. In these ‘total’ social phenomena, as we propose calling them, all kinds of institutions are given expression at one and the same time—religious, juridical, and moral, which relate to both politics and the family; likewise economic ones, which suppose special forms of production and consumption, or, rather, of performing total services and of distribution.”
It is important to keep in mind that The Gift is not a cultural study of ancient traditions; that is not its purpose. Mauss’s intention was to present economic theory through the prism of these ancient cultures by emphasizing the means by which formal transactions were conducted – transactions that took complicated forms and the ramifications of violations of which could result in armed conflict. He does this by emphasizing that those ancient practices were not simple exchanges of item for item, of the mere presentation of gifts from one to another. On the contrary, Mauss’s study demonstrates that gift giving, or exchanges, was a component of a much broader process, which has parallels in modern contract law:
“In the economic and legal systems that have preceded our own, one hardly ever finds a simple exchange of goods, wealth, and products in transactions concluded by individuals. First, it is not individuals but collectivities that impose obligations of exchange and contract upon each other. The contracting parties are legal entities: clans, tribes, and families who confront and oppose one another either in groups who meet face to face in one spot, or through their chiefs, or in both these ways at once. Moreover, 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, in which economic transaction is only one element, and in which the passing on of wealth is only one feature of a much more general and enduring contract which economic transaction is only one element, and in which the passing on of wealth is only one feature of a much more general and enduring contract.”
These practices do present a portrait of early manifestations of modern contract law. Anyone who has studied contract law and torts will likely recognize in Mauss’s discussion the similarities in intent and structure, if not in the itemization of human beings as part of transactions (the sports world, however, could provide a useful exercise in the modern trade in human beings, as athletes contractually obligated to a specific organization can, absent a provision in their contracts precluding such a possibility, be “traded” to another organization in exchange for another athlete, draft pick or money. And, of course, in regions of the modern world where slavery is still practiced, such transactions continue to occur). Complex modern contracts can comprise numerous provisions qualifying each stage or element of a transaction, for example, completion of the transaction may hinge on the physical condition of the item being transferred, or the contract could include an “out” wherein one party can walk away from the transaction if certain, specified conditions change. Mauss’s point, though, is that the practices he describes have parallels in modern contract law that provide an instructive picture of how cultures formerly viewed as “primitive” were, in reality, anything but.
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