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Overview
How to regulate the transfer of wealth from one generation to the next has been hotly debated among politicians, legal scholars, sociologists, economists, and philosophers for centuries. Bequeathing wealth is a vital ingredient of family solidarity. But does the reproduction of social inequality through inheritance square with the principle of equal opportunity? Does democracy suffer when family wealth becomes political power?
The first in-depth, comparative study of the development of inheritance law in the United States, France, and Germany, Inherited Wealth investigates longstanding political and intellectual debates over inheritance laws and explains why these laws still differ so greatly among these countries. Using a sociological perspective, Jens Beckert sheds light on the four most controversial issues in inheritance law during the past two centuries: the freedom to dispose of one's property as one wishes, the rights of family members to the wealth bequeathed, the dissolution of entails (which restrict inheritance to specific classes of heirs), and estate taxation. Beckert shows that while the United States, France, and Germany have all long defended inheritance rights based on the notion of individual property rights, they have justified limitations on inheritance rights in profoundly different ways, reflecting culturally specific ways of understanding the problems of inherited wealth.
Product Details
| ISBN-13: | 9780691187402 |
|---|---|
| Publisher: | Princeton University Press |
| Publication date: | 06/05/2018 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 392 |
| File size: | 2 MB |
About the Author
Read an Excerpt
Inherited Wealth
By Jens Beckert Princeton University Press
Copyright © 2008 Princeton University Press
All right reserved.
ISBN: 978-0-691-13451-2
Chapter One INTRODUCTION
The regulation of inheritance law on the basis of the essential personal or social conditions always appears to be a reflection of the various opinions of an age, which are shaped by national character, its cultural level, and economic considerations. Heinrich Ahrens (1871, 249)
1.1. Inheritance and Modern Society
Everyone who dies leaves something behind. Everyone who owns property leaves it behind. But to whom does this property belong? All societies that recognize individual property rights need rules to reallocate property upon the owner's death. In modern societies, a codified inheritance law defines the rights of the testator to dispose of his or her property by will, the rights of the deceased's family members, and the rights of the state to appropriate all or part of the property. But societies regulate these issues in different ways. How to regulate them became a major topic of intense political, legal, economic, sociological, and philosophical debate in the nineteenth and twentieth centuries. For Alexis de Tocqueville the question of inheritance was so important to a society's development that when "the legislator has once regulated the law of inheritance, he may rest from his labor" (1980 [1835], 1:48). John Stuart Mill (1968 [1848], 202-3) saw inheritance law as the most critical area of law, equaled in significance only by contract law and the status of laborers.
The present book explores the development of inheritance law in Germany, France, and the United States since the late eighteenth century. By examining four central controversies over inheritance law during these three centuries, I try to explain how inheritance law developed and why differences exist to this day between the legal systems of these three countries. The four areas of conflict are (1) the degree of testamentary freedom; (2) the legal rights of the testator's relatives, especially his or her spouse and children; (3) entails; and (4) inheritance taxation. Why is the testator allowed only minimal testamentary freedom in France, while that freedom is almost unlimited in the United States? Why did the principle of real partitioning come to prevail in France? Why do family interests play a much more important role in German inheritance law than in American inheritance law? Why, in all three countries, was inheritance taxation introduced or fundamentally reformed in the early twentieth century? Why were much higher estate taxes introduced in the United States than in Germany? Why were entails banned in Germany only in 1919, 140 years later than in the United States and 70 years later than in France?
Inheritance Law and Social Solidarity
These questions lie at the heart of the present study. At the same time, its analysis is embedded in a comprehensive theoretical framework that owes much to Émile Durkheim's sociology of law (1984, 1992). Durkheim analyzed the development of legal institutions as an aspect of the macrosocial evolution of society. He regarded the development of the relationship between individuality and the normative structures of society as a major topic for the sociological analysis of the process of modernization. According to Durkheim, the development of the law is an indicator for the relationship "of the individual to social solidarity" (1984 [1893], xxx).
As early as The Division of Labor in Society, but especially in the lectures Professional Ethics and Civic Morals, Durkheim applied his view of the law to property rights. According to Durkheim (1992 [1957], 146), the right of property expresses a direct moral bond between the thing owned and the owner. The moral position of the individual is reflected in the legal rights of the owner. The violation of property rights is punished because society recognizes it as a violation of the owner himself. According to Durkheim, the moral status of the individual in relation to the family, to intermediary institutions, and to the state is admitted into the rights and duties of the disposition of property because of the link between property rights and the person. These law-based normative structures of modern society become visible through an examination of the historical genesis of property law.
Durkheim touched on inheritance law in the fragmentary book of lectures Professional Ethics and Civic Morals, but his analysis concentrated on contract law. Yet it is the study of the development of inheritance law that allows us to trace most clearly the structures of the relationship of individuality and its social embeddedness. In conflicts over inheritance law, questions about the relationship between individual freedom in the disposition over property, the claims of the family and the state to this property, as well as the role of ascription and individual achievement take center stage and provide a concise indicator of the normative structures that carry out the social integration of the individual. The close link of inheritance law to this question of social integration can also be seen in the fact that inheritance as a social problem emerges only when property rights are individualized and a purely family-based understanding of private property is transcended.
The development of modern inheritance law is linked to the dissolution of the economic unit of the household, in which there was no right of inheritance in the modern sense, because the unit itself was considered immortal (Weber 1978 [1922], 1:359). Upon death, a member ceased to be the bearer of an idealized "share" of the property, but that did not amount to a real transfer of property. According to Max Weber, it was only the processes of differentiation through individualized forms of acquisition, the separation of household and workplace, the growing significance of capital in relation to land as a factor of production, and the institution of dowry that led to increasingly calculated internal family relations and to the individualization of property rights. This, in turn, contributed to the dissolution of the household and created the social problem of assigning property mortis causa. Thus, the development of inheritance law is intimately linked with processes of social differentiation. However, as I want to show, this is not a process of individualization, understood as an increasing separation of the individual from society, but rather, in the Durkheimian sense, a transformation of social solidarity. How individual disposition over property mortis causa is embedded in conceptions of social solidarity in the three societies investigated is the subject of the present book.
Discourse on Inheritance Law and Legal Development
Although this book follows Durkheim in connecting the examination of the evolution of law with the understanding of modernization, my approach is different from Durkheim's: in The Division of Labor in Society, Durkheim suggested that we consider social reactions to violations of the law as an indicator of the development of individuality and social solidarity. For Durkheim, the declining importance of criminal law reflected the diminishing relevance of "solidarity through likeness" and the increasing crystallization of the individual as the moral subject of modern society. The decline of the repressive sanctions of criminal law, through which traditional societies assure their social cohesion, can be read as a sign of the waning significance of collective consciousness. This indicator of moral development, however, is unsuitable for inheritance law. From the outset, inheritance law concerns mostly questions of civil law-although criminal law plays an indirect role with regard to crimes like tax evasion, forgery, or fraud. Moreover, Durkheim's emphasis on the changing reactions to the violation of legal provisions leads him to focus on the actual development of the law. However, Durkheim's focus on the examination of the evolution of legal rules is limited because it obscures most information about the collective representations concerning the transmission of wealth that exist in society. Much of that information can only be found through an analysis of the political discourses surrounding the reform of inheritance law.
As a result, this study is focused largely on the legal and political debates on questions of inheritance law. To be sure, some aspects of the relationship between the testator's individual rights of disposal and obligations toward his or her family and society can be seen in the development of the law itself. Yet the goals of the actors and the arguments for or against certain provisions become clear only if one looks at the legal and political discourse conducted within the legislative process, and sometimes outside of it. The structure of these debates provides insights into the perception of causal relationships, the values held by the actors involved, and the structures of political power and the changes they undergo. The discourses reveal different positions along with the fundamentally contentious nature of the legal provisions ultimately adopted. I thus follow Durkheim's insight that the development of law can be used as an indicator of macrosocial processes of change. At the same time, the inclusion of legal and political discourses allows for an expanded study that makes the significance of discursive structures accessible for the purpose of studying the development of the law. Among other things, including this level of analysis may allow different collective representations in the three countries to become apparent, representations that might otherwise be hidden behind similar legal developments.
The acceptance of legal regulations, as Durkheim noted, depends on a moral core from which they derive their legitimacy. The emphasis on linguistic processes of communication points to something else in addition, namely the role that a value-oriented formation of political objectives plays in the social integration of modern societies. The political sphere is the "forum" in which-on the basis of the ideas of social justice and causal relationships implicit in a political culture-the legitimacy of rules of law is created or contested, a legitimacy that is usually the precondition for the political enforceability of these rules, and in every case the basis for their practical acceptance. Thus, the examination of legal and political conflicts over the institutionalization of inheritance law takes on a double meaning: the arguments advanced for or against legal reforms are an indicator of the development of ideas about "social solidarity"; at the same time, the moral constitution of society is created and reproduced precisely in these discursive processes.
It is therefore not a question of simply replacing one indicator with another, but of advancing Durkheim's approach on a theoretical level. Durkheim believed that norms derive their validity from religious symbols that in turn, derive their significance from collective experiences during religious rituals. Jürgen Habermas, in particular, objected that Durkheim's explanation did not adequately recognize the "trend toward the linguistification of the sacred" (Habermas 1987, 2:46) and thus the important role that linguistically mediated, norm-guided interaction plays in the integration of modern societies. Social solidarity is created precisely out of linguistic processes of communication (Verständigung) in which actors are forced to justify their claims about what constitutes appropriate actions within the normative context of roles and institutions (1987, 2:56). Habermas thus refers to the production of morally binding forces in discourse and rejects the idea of a simple imprinting of norms and values in the process of socialization.
While I share Habermas's assessment of the importance of the role of discourse to the normative development of society, the way in which I incorporate it into my analysis differs from Habermas. Unlike Habermas, I am not concerned with the development of a procedural ethics and with the orientation of processes of communication toward claims of universal validity and the concepts of secularization that go along with this. The role of discourses can also be understood in a very different way.
In his critique of Durkheim's sociology of religion, Hans Joas (2000, 67ff.) pointed out that Durkheim linked processes of institutionalization too directly to experiences of collective excitation. What Durkheim's theory of institutions obscures, Joas argued, is that "the individuals who participate in the collective experience having developed differing interpretations of this experience, ... only then refine into a collective interpretation through a process of discussion and argument (a process that is pervaded with power)" (2000, 67-68). It is only out of the dynamic of this contingent process of dealing with collective experiences-that is, the interpretation of causes, reasons, results, and possibilities-that institutions emerge, change, and solidify.
Against this background, I regard discourses on inheritance law as processes that generate socially recognized viewpoints and thus lay the foundation for the process by which inheritance law becomes institutionalized. They are not analyzed as ways of generating universally recognized norms of behavior, or as symbolic reflections of the infusion of power into social relations. Instead, the goal of my approach is to examine the intersubjective and conflictual creation of ideas of justice as well as the conceptions of causal relationships and their significance for explaining the development of inheritance law.
Orders of Justification in Inheritance Law
By explaining the development of inheritance law and how it has differed in France, Germany, and the United States, on the one hand, and by examining the development of the relationship of the individual to society, on the other, I am pursuing two goals in this study. These goals are linked by the thesis that the development of inheritance law itself cannot be explained independent of the discursive structures in each of the three countries. The explanation of the development of inheritance law that I am striving for is based on a multidimensional heuristic that incorporates economic interests, demands by the state, and the role of social institutions (especially the family and the legal system), as well as culturally based values that are expressed in the discourse on inheritance law. All of these dimensions are significant for each of the four areas of conflict examined here, although different elements of explanation are paramount in each area. What emerges, therefore, is a complex picture of the development of institutions of inheritance law, which depicts this development as dependent on economic, governmental, social, and cultural influences. This multidimensional explanation of the development of inheritance law stands close to Max Weber, whose theory of institutions was based precisely on the presumed link between ideas and interests. The three countries included in this comparative study, Germany, France, and the United States, can be seen as part of modern Western capitalism as defined by Max Weber. From the late eighteenth to the early twentieth centuries, all three countries were undergoing a process of profound social, political, and economic transformation. While this development took place against the background of different initial conditions, its thrust was essentially the same in all three countries, as a result of which they confronted fairly similar functional problems. The selection of Germany, France, and the United States is based on this relative similarity, which suggests that inheritance law might have developed in parallel ways.
(Continues...)
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Table of Contents
Acknowledgments vii
Introduction 1
Inheritance and Modern Society 1
Social Dimensions of Inheritance Law 12
The Right to Bequeath: Testamentary Freedom and the Individuality of Property 21
France: Equality versus the Freedom of Private Disposition over Property 23
Germany: Testamentary Freedom versus Family and Social Justice 50
United States: Equality of Opportunity versus Individual Rights of Disposition 69
Conclusion 80
Equality and Inclusion: The Inheritance Rights of the Family 83
The Principle of Equality in Intestacy Law 87
The Spouse in Intestacy Law 90
The Integration of Illegitimate Children into Inheritance Law 99
Conclusion 109
Political Structure and Inheritance Law: The Abolition of Entails 114
The Double Abolition of Substitutions in France 119
The Delayed Abolition of Fideikommisse in Germany 131
The Abolition of Entails in the American Revolution 156
Conclusion 163
Social Justice through Redistribution? The Taxation of Inheritance 167
Equality of Opportunity versus Private Property: The Estate Tax in the United States 171
"Sense of Family" versus Social Justice: The Inheritance Tax in Germany 209
Destruction of National Wealth? The Progressive Inheritance Tax in France 243
Conclusion 270
Conclusion: Discourses and Institutions 275
The Method of Content Analysis of Parliamentary Debates 295
Notes 299
References 343
Index 367
What People are Saying About This
This excellent book is the first major comparative exploration of inheritance law as it pertains to the social sciences that I know of. Marked throughout by the author's erudition on the subject, its analysis is framed in sociological terms, but the main chapters can be read without any knowledge of sociology. Indeed, they contain much that will prove extremely useful for historians, political scientists, economists, and others, and which is hard to find elsewhere.
— Richard Swedberg, Cornell University
Inherited Wealth is a fine piece of scholarship, worth reading from beginning to end. We learn much in this book. First and foremost, we learn the guiding principles of inheritance law in three very influential countries. In a highly readable manner, Jens Beckert presents a very complex topic that has, until now, been accessible only to legal scholars.
— Juan Diez Medrano, Universidad de Barcelona and Institut Barcelona d'Estudis Internacionals (IBEI)
"This excellent book is the first major comparative exploration of inheritance law as it pertains to the social sciences that I know of. Marked throughout by the author's erudition on the subject, its analysis is framed in sociological terms, but the main chapters can be read without any knowledge of sociology. Indeed, they contain much that will prove extremely useful for historians, political scientists, economists, and others, and which is hard to find elsewhere."—Richard Swedberg, Cornell University"Inherited Wealth is a fine piece of scholarship, worth reading from beginning to end. We learn much in this book. First and foremost, we learn the guiding principles of inheritance law in three very influential countries. In a highly readable manner, Jens Beckert presents a very complex topic that has, until now, been accessible only to legal scholars."—Juan Díez Medrano, Universidad de Barcelona and Institut Barcelona d'Estudis Internacionals (IBEI)