The Legal Frame of the Gift in Ideal Contexts of Authority

Abstract

The anthropological discourse on the gift repeatedly underlines the impossibility of a free gift. This seems to be a truly universal, trans-cultural and trans-historical fact, since the gift always follows the unavoidable Maussian obligations to give, to receive and to reciprocate – every gift implicitly demands a gift in return. From this anthropological perspective, the gift plays a major role in establishing personal ties between people. However, this been said, it does not imply that the personal ties are only between equals – for instance, potlatch is a gift used to establish status hierarchy among people, a gift of rivalry in which the one who receives a gift is obliged to respond with another gift of a greater value. In this article I intend to analyze the way in which legal rules that apply to donations manage to deal with gift's anthropological function in the context of authority and hierarchy, since the civil laws in European-continental legal family explicitly state that donations are unilateral and gratuitous acts, contradicting the anthropological discourse. In analyzing the function of legal provisions of the gift in the context of authority, I will use Alexandre Kojève's classification of subjects of authority – Master, Judge, Leader and Father – in order to see the way in which the gift functions in these ideal-type power relations and the role of the gift law in these particular symbolic contexts.