Epstein Reviews The Purchase of Intimacy

For Love or Money
Richard A. Epstein
The New York Times
September 18, 2005

THE PURCHASE OF INTIMACY
By Viviana A. Zelizer
356 pp. Princeton University Press. $29.95.

It's no easy matter to come to grips with the messy realities of social life. The precise principles available to describe gravity and other physical phenomena have no parallel in the social sciences. Nonetheless, social scientists of all stripes seek to divide and categorize experience in order to understand it better. In The Purchase of Intimacy, Viviana A. Zelizer, a professor of sociology at Princeton, initiates a prolonged and spirited attack upon what she sees as one influential but misguided dichotomy -- that between intimate relationships and market relationships.

Today, many scholars take the position that love and money do not mix, and that some combination of law and social norms should strengthen the barrier between them, by resisting, for example, such insidious practices as exchanging sex for money. At the other extreme, the rational choice economists flatten and distort reality because they see no place for the emotions. Zelizer consciously resists both extremes to make a straightforward but powerful point. The sharp division scholars want to draw between money and intimacy does not capture the multiple relationships of ordinary people.

How so? Simple observation shows, for instance, that people routinely use money in courtship to buy the engagement rings and fancy dinners that can lead to marriage. At the same time, within marriage's sacred precincts the law may not intervene in the routine business of daily life, but it does play a huge role in shaping the major transitions of life, marriage, childbirth and death.

To make her point Zelizer begins, somewhat oddly, with a dispute from the 1840's over the right to some promissory notes that Samuel Miller handed over to his concubine Patsy, his mulatto slave, for collection after his death. The bequest, however, was contested by Miller's heirs, who eventually had it voided because Patsy could not show that she was emancipated when she received the notes, and hence was unable to claim title to them.

Patsy's travails tell us a lot about transactions in contemplation of death. But they tell us nothing about intimacy. The outcome of the case turned on Patsy's status, as well as on Miller's acts and intentions. It didn't even matter whether Patsy was an intimate or a total stranger. And it most assuredly didn't matter whether Miller made the transfer out of love or guilt. So it is with all business relationships coming out of marriage. The validity of a family trust or will doesn't depend on whether the spouses adore or hate one another. Intimacy and business travel along adjoining paths that sometimes cross. Legal relationships don't tell us much about social relationships, and vice versa.

At this point, we'd like Zelizer to spend less time on lawsuits, and more on the social dynamics of the business arrangements between married couples. Which couples choose to adopt prenuptial agreements, and why? Which couples keep separate property after marriage, and which do not? Does the movement of women into high-level positions in the work force alter family planning? Zelizer needs to dwell less on the law and more on the sociology, which, after all, is her field. Yet her book is strangely silent on matters that fall within her competence.

The Purchase of Intimacy also suffers from a weakness that's implicit in its title. The phrase ''purchase of intimacy'' is meant to suggest, somewhat paradoxically, that intimacy and money are in fact compatible. But the truth of that paradox depends critically on the meaning that is given to the phrase ''intimate relationships.'' In ordinary English, the only relationships unquestionably covered by those words have a strong sexual and durable component, within marriage or outside it. Relationships between parents and children, for example, are surely close or personal, but it is a delicate question whether they are intimate as well. So, too, even with the best of friends, who often keep things from each other.

But these hard cases do not mark the outer limit of Zelizer's inquiry. Her list includes at one point ''physicians, nurses, spouses, children, neighbors or live-in servants.'' Later on a longer section covers ''friends, partners, neighbors, co-workers, employer-employee, professional-client and parents-children.'' The only people excluded are those engaged in anonymous relationships, like toll collectors. Within her broad class of relationships, Zelizer is right to make fine-grained distinctions.

It's also appropriate to make distinctions within the various relationships. Everyone has business and close friends. Some neighbors are total strangers, others not. But the moment the net is cast so wide as to take in strangers, then the connections she is trying to draw between intimacy and money lose all their meaning. Can one possibly imagine an (intimate?) employment relationship that doesn't have money as one of its central terms? At this point, it is better to ask how social arrangements differ from confidential ones, and how both differ from intimate relationships. The term ''intimacy'' is asked to do too much work.

Consider Zelizer's discussion of the professional rules of conduct for psychiatrists. Sure, confidential information goes from patient to physician. But is this relationship intimate, given the utter lack of reciprocity of disclosure? The therapist does not bare his soul to his patient, and indeed has been instructed to keep all personal affairs to one side. The explicit prohibition against any form of sexual connection, moreover, is meant to prevent intimacy, not encourage it.

And so it goes. Zelizer's many sage observations about a wide range of social relationships work at cross-purposes with her central thesis. Instead of showing how people purchase intimacy, we often learn how they purchase lots of different things. In Zelizer's hands, alas, the purchase of intimacy ceases to be a paradox and becomes a misnomer.

Richard A. Epstein is a professor of law at the University of Chicago and a senior fellow at the Hoover Institution.

Copyright 2005 The New York Times Company

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Richard A. Epstein