The Gender of Capital: How Families Perpetuate Wealth Inequality, Céline Bessière and Sibylle Gollac, translated by Juliette Rogers

The first time I read this book, I came away feeling quite hopeful—or not unhopeful—about law. Yes, the book showed the existence of a profound wealth gap between women and men. Yes, the book showed how the ways in which money and property are arranged within families perpetuate this gap and thereby disadvantage women. And yes, the book showed how law is implicated in the construction of these arrangements, even where, as in the case of France (the book’s point of focus), the legal framework in question is ‘formally egalitarian’ (p70). But there was nevertheless a sense, running through my reading at least, that whereas the question that the authors were posing here was about how this was all possible, and whereas their analysis showed how law was involved in the rendering of it possible, there was some potential for law here, some way in which law could be engaged in rethinking the ways of being and living that it had, on the authors’ analysis, been implicated in. It wasn’t clear, exactly, what this could involve, or the degree to which the answer—to the extent that there could be an answer—could lie solely within law. But insofar as the analysis presented in the book demonstrated the sheer capacity of law, this was a live capacity. If only, the sense was, we could find a way of shifting things within the legal framework, a way of challenging the assumptions and worldviews embedded within that legal framework, a way of improving understanding of that framework. If only.

When I came back to the book, some time later, I was struck by something different: the sense that this is really a book about how families bind themselves. To the question of how it is that families perpetuate wealth inequality, the authors answer: in the way in which they arrange themselves, conceive of themselves, and locate themselves; and in the way in which they involve law in so doing. Families do all of these things, of course, in a wider social, political, economic, and cultural context; and the need to consider that context and bear its implications in mind is an emphasis that runs through every chapter. But what Céline Bessière and Sibylle Gollac also do, from the very outset of their book, is foreground the socio-economic doing of the family and the force underpinning this doing. Law is used in this, is implicated in this, runs the argument, but this use and implication is subject to the workings and dynamics of the family. It’s the family, Bessière and Gollac argue—and specifically, the heteronormative family—that produces ‘relations of economic domination’ in such a way that it is simply impossible to fully understand the ordering of gender and class without looking at family relations (pi-x). It’s the family, the sense is, that is the force to be reckoned with. And so to the question that, for Bessière and Gollac, presents the real mystery here—‘[h]ow is it that, despite a formally egalitarian legal framework, family wealth arrangements usually enrich men and impoverish women?’ (p70)—comes the answer: because of what is going on in the way in which law is being used by families, because of what is going on in the way in which law is being employed by families.

Coming back to the book now, and thinking it through once again, what strikes me most of all is the degree to which this is a book that is also about the way in which a split is maintained between a formal framework of equality and a practice that legitimates and formalizes inequality. It is this split that is at the heart of the book, in many ways, the book being one that demonstrates, in the words of Bessière and Gollac, ‘the extent to which the egalitarian norm, which has now become a myth of established equality, produces economic inequality in practice’ (pxii). It is a split between what the authors describe as a ‘normative frame, which is one of the most egalitarian in the world’ and practice (pxi), between accounting practices that ‘look neutral and technical’ but in fact ‘[incorporate] gender norms that ultimately favor men, especially those from far higher economic classes’ (p13), between formal neutrality and actual reality. It is a split that is, for me, expressed most finely in the following lines from the introduction: ‘The primary cause of the gender wealth gap is to be found in the everyday struggles of family life, rather than in Wall Street dealings. This inequality is produced by the unspoken practices of men and women when they act as spouses and partners, fathers and mothers, daughters and sons, brothers and sisters. It takes different forms according to social class…’ (p10). It is the word ‘acting’ that captures my attention here. It suggests something about the roles in question—about the norms bound up in these roles, about the expression of norms through these roles, about the putting of these roles on. It speaks to the sense of the gap between theory and practice that sums up the split here. So how, on the analysis of the authors, does it come about? How is it maintained? What is its function? These are questions that this book speaks to.¹

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The Gender of Capital begins in an idea of the family as an economic institution: ‘an economic institution like any other, a place where wealth is produced, circulated, controlled, and assigned value’ (p13; see further Ch.1). What this entails most immediately is a deconstruction of the family as a category of analysis and a focus instead on the individual members of the family and the transfers of money and property that go on between them. The two contexts that Bessière and Gollac focus on in this respect are inheritance (including estate planning) and the separation of cohabiting couples, both being ‘extraordinary moments that formalize [family wealth arrangements] and lay them out in explicit detail’ (p11) and both being situations that ‘include key moments of confrontation and clarification’ (p37). Tracking the transfers that go on here—through extensive family histories, observations, and interviews—reveals the extent to which the arrangements in question are ‘always about more than money and property’ (p11). Rather, they are spaces in which, and means through which, questions of belonging, position, expectation, status, and what it means to be in the family play out. Moreover, they play out differently: ‘[m]en and women aren’t in the same position in this process, as they are not socialized to act in the same way or to have the same aspirations; family expectations are not the same for women and men’ (p11). These, then, are transactions of money and property, yes; but they critically also reveal something about how members of the family are related to within the family—and, at the same time, about how members of the family relate to one other. And so it is that when it comes to questions of recalling transactions, it is not only that recollections themselves sometimes differ (‘brothers and sisters sometimes had very different recollections of the settlement of their parents’ estate: they did not count the same assets, assign them the same values, or have the same conceptions of what a fair inheritance might mean’ [p11]), but that experiences of the same transactions and arrangements differ.

Bessière and Gollac go on to locate the observations that they make about their case studies in the context of a wider statistical analysis, emphasizing, in the process, the extent of the wealth gap between women and men and the role of inequalities that are produced and perpetuated within family relationships. They highlight the way in which in couple relationships, any inequalities relating to housework, care work, and wealth are often exposed starkly on separation—a finding that echoes, of course, what family lawyers see going on all the time. But the book also brings to the fore the role of inequalities in relationships between siblings and between adult children and their parents; and this struck me as an especially interesting line of analysis for family lawyers, particularly in the light of scholarship that suggests a need for family law to move beyond its tendency to focus on couple relationships and the relationships between (minor) children and their parents and to think about a wider ‘range’ of family relationships.²The Gender of Capital highlights the importance of such a broader analysis, not only for thinking about the role of law in relation to these relationships, but also for thinking about the histories of the parties to the relationships that have tended to form the focus of family law. These histories, the book quietly reminds us, form part of the histories of the relationships themselves; and they are relevant to thinking about the material and economic consequences of the breakdown of any relationship, as well as to the financial arrangements that are made in that moment of ending.

In relation, then, to sibling and adult child-parent relationships, Bessière and Gollac show how the inequalities that emerge here involve ideas relating to birth order and gender and are also shaped by the idea that a family holds of itself and its ‘strategies of social reproduction’ (p43) (developed by families ‘to maintain or improve social status’ [p42]) more widely. Concrete examples of an early embedding of inequality that run along these lines include instances where children are socialized differently from the outset, with a view to later arrangements—as where, for example, there’s an early expectation that an eldest son will take on a family business and that child is consequently seen as having the potential in question. Family members are not only prepared differently in this way, but they are also seen and perceived differently too. In one of the histories discussed in the book—of the transfer of a family bakery and house to the son and then of real estate shares to the three daughters (two of whom also received daily bread and pastries for over ten years)—Bessière and Gollac discuss how ‘the family produced gendered individuals who were taught to play differentiated and ranked roles according to the family strategy of social reproduction’ (p44). The status of the family emerged as central in this history, such that the grievances of the sisters about the fairness of the arrangement were suppressed, at least in front of the notaire. Rather, they considered it important that ‘the bakery remain in the family because the shop provided a locally situated social status to the entire family’ (p43-44).

Bessière and Gollac go on to show how inequalities that emerge and develop in this context of the original family might then be carried on into other relationships too, interacting along the way with other inequalities, such as gender inequalities in the labor market. Moreover, these inequalities are not only carried on into other relationships; rather, intergenerational economic transfers exacerbate social class divisions more widely too, by way of the effects of the transfers themselves and the way in which they are conceived of and enacted in the first place. As the authors summarize: ‘in the upper classes, a variety of wealth transfers add up over the course of one’s life, favoring individual autonomy and opening new opportunities. In the working classes, the main form of intergenerational aid is living together under the same roof rather than passing along assets. … Finally, among the wage-earning middle classes, investment in children’s educations chips away at parents’ assets and undermines their ability to help their children acquire property before inheritance’ (p28). The question of family wealth arrangements is, in this way, a question both in relation to relationships between women and men and also in relation to social classes.

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Law plays a fundamental role in this context, shaping the arrangements that families make in two senses. There is firstly the way in which the arrangements themselves are shaped by the understandings, ideas, and assumptions that families and individual family members hold about their own legal positions and law itself. These include ideas about who owns what in a couple, about how family law and property law might apply to a given set of circumstances, about legal obligations and responsibilities, and about legal status more broadly. The wider thread that these ideas speak to—about how individuals and families relate to law, and about their legal awareness in that sense—is one that runs through the book more broadly, and Bessière and Gollac draw out the disparities and inequalities that they identify here especially clearly. These are disparities and inequalities relating to access to law, opportunities to interact with law, and socialization within and in relation to law; and a key question arising in this respect is of whether a given encounter with law is one of confrontation in the context of a crisis or part of a wider process of anticipation and planning. As Bessière and Gollac put it, ‘[p]eople’s confrontations with the law can… take different forms, depending on their social backgrounds… Some will anticipate and make quiet arrangements in the shadow of the law, while others must endure the harsh questioning of the justice system and bureaucracies’ (p74). Differences that arise in this way—and that relate to knowledge of law, understanding of law, familiarity with law, access to legal professionals, opportunities to discuss economic arrangements, and the resources required for all of these things—are shown to carry significant implications in practice. They affect, for example, whether and when people see a legal professional, the type and level of information with which they are provided, and the overall involvement of legal professionals in the economic arrangements themselves. Different and unequal ways of engaging with clients are recorded in the analysis in this context too, with gender, the social proximity of clients to notaires and lawyers, ideas of the ‘good’ and ‘bad’ client (p85-94), and the levels and degrees of diversification of wealth emerging as influential factors in this respect.

And that in turn really brings us to the second way in which the economic arrangements that are made by families are shaped by law, which is about the way in which these arrangements are formalized and rendered into law. Bessière and Gollac emphasize in particular the accounting techniques that are used by notaires and lawyers in this context—techniques that are about ‘[moulding] family economic arrangements into the legal framework’ (p114) and that include ‘reversed accounting’ (working backwards from the outcome to the inventory and valuation [see esp. p108-114, 124-132, 164-165; see also p201-202 in relation to child support]) and tax avoidance (‘optimization’) strategies (see esp. Ch.5). What emerges especially clearly is the way in which these accounting techniques incorporate gendered norms and assumptions about family relationships and roles within the family—not necessarily intentionally, Bessière and Gollac emphasize, but with that effect in practice. These include assumptions about who should receive ‘structuring assets’ (assets that ‘define the framework upon which legal professionals build family wealth arrangements’ [p114]), assumptions about who knows what within a family when it comes to the management of wealth in the first place, and assumptions about who ‘the rightful heir’ is (‘[n]otaires generally have a gendered and socially situated conception of ‘the rightful heir’ that fits that of propertied families’, the authors note [p120]). But then there are also the assumptions that shape practice more generally too, such as those that are cast as being bound up in the apparent disinclination of judges to use the legal tools that would (or potentially could) compensate for economic inequalities between members of a separating couple (see esp. Ch. 6) and those that relate to the expectations that are held of mothers and fathers including in relation to childcare and child support (see esp. Ch 7). Such assumptions shape practice, the authors emphasize; and in that way they shape the economic inequalities between women and men and between social classes.

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It would, as I hinted at earlier, be possible to see in all this some potential for rethinking the way in which law is used and practised. So much of it is to do with the practice of law, the sense is; so much of it is to do with techniques and assumptions that underpin that practice. But reading it in this way overlooks the extent to which what is happening at the level of law involves a formalization of arrangements that are made within the family. As Bessière and Gollac make clear throughout, there is, in this context, a joining together of family arrangements with law, a rendering of family narratives legal narratives. The point is one about the meeting of law and family arrangements: a meeting that involves a use of law.

The question that this raises for family lawyers—or one of the questions, rather, that it raises for us as family lawyers—is of where this leaves us in relation to law. Some of the themes that emerge in The Gender of Capital are familiar ones: we have seen in multiple different contexts, for example, the way in which heteronormative values and assumptions can shape arrangements and legal structures; and the fundamental gap that is discussed in the book—a gap between the theoretical form of a legal framework and its realization in practice—is one that comes through in other areas too. But in its focus on the processes and dynamics underpinning family arrangements, and in its attention to the histories and production of these arrangements, the book also raises further questions for family lawyers too: about the relationships that we choose to focus on in our work, about how we think about history in the context of family law, about the construction of stories about families in and through law, about what happens in the practice of legal professionals, and about, more subtly too, perceptions of family law. At one point, Bessière and Gollac refer to a lawyer they talked to as ‘one of the few lawyers, female or male, that we met who considered family law to be noble and technically complex’ (p125). It may well be that we would all, as readers of this journal, challenge the idea that family law is anything but ‘noble and technically complex’ (p125); and it may well be also that we have seen such characterizations of our subject (as not being ‘noble and technically complex’ [p125]) before. But what struck me seeing such a reference here again now was a sense of curiosity about this characterization, and then a question: what is the function of such portrayals of family law? What is the function of such perceptions of family law, particularly when they are held—as is the implication here—by actual practising family lawyers? What do such portrayals and perceptions enable and obstruct?

Thinking along these lines led me to wonder whether there was perhaps another chapter underlying The Gender of Capital in this way: a chapter about the function of that view of family law, about why and for what purpose family law is perceived in such a way when the work of family lawyers so clearly indicates the complexity of the field. That would, I think, be a chapter for another day, but that these questions are raised at all is a measure of the depth and breadth of the book itself. It is, as you will no doubt see if you turn to it yourselves, so many things at once: a sociology of law, an examination of the practice of family law, a sociological engagement with the question of capital, a study of family finances and financial arrangements, and a contribution to feminist legal theory. But it is also, fundamentally, a study of power and power relations—a study of the construction and ordering of relations between women and men, a study of the forces underpinning the ordering of inequality.

Footnotes