Can Separate Be Equal? Intimate Economic Exchange and the Cost of Being Special
Responding to Jill Elaine Hasday, Intimacy and Economic Exchange , 119 Harv. L. Rev. 491 (2005)
How does the law respond to economic exchanges in the intimate sphere? Professor Hasday answers this important question by illustrating that the legal system is “eager to differentiate intimate relations” and does so by locating these relations in “a sphere of life removed from the market.” Although the general argument for separation of spheres is far from being new, it is voiced in this Article in a nuanced and careful tone. Professor Hasday convincingly demonstrates that the law differentiates intimate exchanges from regular market exchanges not only by refusing to enforce the transactions made between spouses or in the familial context (passive approach), but also by applying special rules upon recognizing such exchanges (active approach). In an attempt to explain the law’s use of these opposed techniques, Professor Hasday suggests that they actually aim at the same goal. They seek to mark “the dignity and specialness of intimate relations” by “claiming that they are separate from the market.”
As a realist description, this analysis sharpens our understanding of how the law defines the intimate sphere as special. It is more problematic, however, to accept this notion normatively. Here Professor Hasday seems to remain ambivalent: she expresses an ongoing belief in a legal approach that dignifies the intimate sphere through its distinction — even as she acknowledges the downside of such an approach. This ambivalence may be associated with four axiomatic assumptions that are worthy of further consideration. First, the separation of the intimate sphere is presented as a given, as if the intimate realm has always been removed from the market. Second, it is assumed that the legal efforts to segregate are based only on the “urge to signify the dignity and distinctiveness” of intimate relationships, and no other ground is considered. Third, and as a result of the previous point, it is presumed that the law’s successes in separating the spheres, as in of itself, is desirable, “valuable,” helpful, serves “an enormous societal interest,” and “seeks to protect something of tremendous importance.” Fourth, the alternative suggested in the Article is based on preserving the basic mechanism of drawing lines between intimate economic exchanges and other economic exchanges. Under this alternative, intimate exchanges will be allowed in the market but nevertheless they will not be seen as “normal” market exchanges.
119 Harv. L. Rev. F. 19 (2005) | DOWNLOAD PDF
