The Sexual Contract

Chapters 3 and 4 extend Pateman’s argument about the inadequacy of contract theory by analyzing the source texts: Her goal is to demonstrate the actual character of contract and patriarchy as relations of subordination and sexual differentiation, respectively, that secure one another. Her discussion of the slave contract and the creation of modern fraternal patriarchy demonstrates the central paradox of contract: that it must simultaneously deny and affirm the humanity of the party whom the contract subordinates. This paradox becomes clearer when the sexual contract is brought into view.

In opening Chapter 3, Pateman explains why contract is seen as upholding freedom and equality:

The doctrine of natural individual freedom and equality was revolutionary precisely because it swept away, in one fell swoop, all the grounds through which the subordination of some individuals, groups or categories of people to others had been justified; or conversely, through which rule by one individual or group over others was justified. Contract theory was the emancipatory doctrine par excellence, promising that universal freedom was the principle of the modern era (39).

She goes on to point out that contract is also used to justify the subordination present in civil society: “A naturally free and equal individual must, necessarily, agree to be ruled by another. The creation of civil mastery and subordination must be voluntary: such relationships can be brought into being in one way only, through free agreement” (40). Calling back to the point that she makes in Chapter 1 about the use of stories/conjectural histories for people to make sense of themselves in the present, she discusses John Rawls’s A Theory of Justice, noting that “Rawls’ task is to find a picture of an original position that will confirm ‘our’ intuitions about existing institutions” (42). Pateman thus suggests that, at best, contract theory and the original contract have merely been ways for white male political philosophers and theorists to justify the hypocrisies of modern civil society—specifically, the contradiction of a modern civil society supposedly founded on a principle of universal freedom and equality that also includes the subordination and enslavement of certain (groups of) people.

This requires a lot of theoretical maneuvering, encapsulated in the idea of a “civil slave” as differentiated from the slave of the premodern era. This differentiation happens through the political fiction of property in one’s person. As Pateman writes:

The assumption that the individual stands to the property in his person, to his capacities or services, as any owner stands to his material property, enables the opposition between freedom and slavery to be dissolved. Civil slavery becomes nothing more than one example of a legitimate contract. Individual freedom becomes exemplified in slavery (64).

The idea is that a civil slave, although subject to the will of a master once the contract is entered, is neither property nor coerced because as an individual, he has the freedom to voluntarily subject himself to the authority of a master by contracting his own labor power. Furthermore, the master, even after securing that subjection, still does not have unlimited power over the enslaved person because that would be illegitimate in civil society. Such lines of reasoning have allowed proponents of contract to claim that slavery is/can be voluntary. For example, some have claimed that slavery is, in fact, “based on a contract between master and slave” and that a truly free system would allow an individual to sell himself into slavery (67). Others have claimed that the slave contract is merely a type of employment contract, with the only difference being the duration since a person is enslaved for life (63). More outright defenders of slavery have claimed that the slave contract is more beneficial than the employment contract because the master is obligated to provide protection and support in exchange for the enslaved person’s labor power (67). 

However, as most historians have pointed out, slavery is not in fact contractual, but instead “bound up with violence and conquest” (64). Certainly, “[s]lave-masters took pains to ensure that their slaves were marked as powerless through a variety of means, including naming, clothing, hair-styles, language and body marks, and use of the emblematic master's instrument, the whip” (64). Thus, civil slavery illustrates the primary paradox that plagues contract theory: the simultaneous denial and presupposition of the humanity of the subordinated party in a contract. Pateman argues that attention to the sexual contract makes this paradox all the more evident:

The contradiction inherent to slavery, that the humanity of the slave must necessarily be simultaneously denied and affirmed, recurs in a variety of dramatic and less dramatic guises in modern patriarchy. Women are property, but also persons; women are held both to possess and to lack the capacities required for contract–and contract demands that their womanhood be both denied and affirmed (60).

The contradiction is evident in the similarity between how classic contract theorists speak of women’s “voluntary” subordination and how they speak of the “voluntary” subjection to slavery. For example, although Pufendorf claims that the difference between men and women is not enough to secure men’s mastery over them, he also assumes “that a woman always agrees to subordinate herself as a wife, because of a man’s degree of superior strength” (51). The wife’s obedience is what she exchanges for protection (51). This is strikingly similar to his claim that “slaves freely offered services, 'being compelled by want or a sense of their own incapacity'. The slaves received in exchange a perpetual supply of food and other necessaries'” (69). Pateman also considers Hobbes, who, differing from his contemporaries by a considerable degree, argues that entrance into the slave contract is a matter of coercion prompted by the enslaved person not wanting to lose their life (47). Once the enslaved person has entered that contract, however, they become a servant under the protection of the patriarch’s family. Wives, too, are servants in the family under the protection of the male head of the family (48). As Pateman explains, for Hobbes, “Submission to overwhelming power in return for protection, whether the power is that of the conqueror’s sword or the mother’s power over her newly born infant, is always a valid sign of agreement” (45). 

Pateman’s interpretation reveals that no matter where the classic contract theorists fall in their rejection or defense of slavery as a contractual relation, they all imply and assume the “natural” subjection of women that precedes the original contract that creates civil society, and they assume that marriage reflects this natural subjection. Hobbes, for example, concludes that in the natural state, all women become servants as wives, so this servant status means that they are not party to the original contract (50). For Locke, women (or wives) are natural subjects to men (or husbands), so they are not even “individuals” and therefore have no part in the original contract (52). Rousseau justifies his exclusion of women from civil life based on his belief that “civil order depends on the right of husbands over their wives, which, he argues, arises from nature, from the very different natural attributes of the sexes” (53). Furthermore, because these theorists understand this subjection as “natural,” they do not consider it properly political. However, because marriage is also contractual, this raises the question of how women, naturally subordinate, have the capacity to (and in fact must) enter the marriage contract while supposedly lacking the capacity to enter the original contract. Again, there is a simultaneous denial and presupposition of the humanity of the subordinated party. For Pateman, the contradiction is explained through the fraternal pact that is the sexual contract, which is a necessary half of the original contract that does not get discussed. 

In Chapter 4, Pateman lays out the fraternal character of modern patriarchy, demonstrating that the sexual contract is the origin of men’s political right but hard to discern because it is subsumed under the marriage contract (which, having “natural foundations,” is considered nonpolitical). The sexual contract, then, shows how contractual relations created in the public sphere depend upon the contractual relations created in the private sphere, or the conjugal home. 

Understanding the fraternal character of modern patriarchy requires unraveling the meaning of “fraternity” and why it is integral to the freedom and equality that contract theorists claim undergird modern civil society. Pateman acknowledges that “[f]raternity is seen as a free union, and its proponents insist that ‘fraternity’ implies the existence of communal bonds that are civil or public, not confined to assignable persons, and that are freely chosen” (78). A trick of language happens in the discourse where “fraternity” becomes a synonym for a sexually undifferentiated community. According to Pateman, however, “fraternity” should be read literally as the masculine bond that it is. The men who defeat the fathers in the original contract must find a way to secure the political right that once had its origins in father-right. These new men are not only acting as brothers to defeat the father, but they also secure their political right through the transference of conjugal right to themselves. 

The fact that political right derives from conjugal right—i.e., male sex-right over women—is present but hidden in the classic contract texts because of the displacement of the sexual contract onto the marriage contract. In the debate between classic patriarchalists and proponents of contract, both sides endorse conjugal right even as they disagree over paternal right; they also bypass conjugal right to focus on paternal right. In her examination of Filmer’s theory, which draws on the story of Adam and Eve to proclaim that paternal right embodies political right, Pateman points out that:

If Adam was to be a father, Eve had to become a mother. In other words, sex-right or conjugal right must necessarily precede the right of fatherhood. The genesis of political power lies in Adam’s sex-right or conjugal right, not in his fatherhood. Adam’s political title is granted before he becomes a father (87).

On the other side of the debate over the legitimacy of father-right as political right, Locke makes some theoretical maneuvers that allow him to appear anti-patriarchal, all the while securing conjugal right. Through the separation of the natural and civil, as well as the private and public, Locke can acknowledge that the original political right was conjugal—i.e. it had its “consensual genesis in a ‘voluntary Compact between Man and Woman’” (93)—while simultaneously claiming that this particular agreement is nonpolitical because it belongs to the natural, private sphere. Therefore sex-right becomes hidden. Pateman writes:

The concealment was so beautifully executed that contemporary political theorists and activists can ‘forget’ that the private sphere also contains—and has its genesis in—a contractual relationship between two adults. They have found nothing surprising in the fact that, in modern patriarchy, women, unlike sons, never emerge from their ‘nonage’ and the ‘protection’ of men; we never interact in civil society on the same basis as men (94). 

That is, conjugal right, or sexual access to women’s bodies, is displaced onto the marriage contract, where the familial, private nature of marriage allows contract theorists to bypass the relation between men and women and instead go straight to fatherhood. They can then declare patriarchy dead since the father’s right over his sons is limited, in addition to declaring that marriage is nonpolitical since it exists in the private sphere. 

Again, contract theorists must emphasize sexual difference to justify why women’s subordination exists as a natural relation and is therefore irrelevant to political society. Although vague about the natural sexual differences, classic contract theorists do reference “man’s greater strength of body and mind, or his greater strength and ability” (94). In addition, Rousseau claims that differences in morality follow from “the development of sexual difference, a difference that necessarily entails that woman must be subordinate to men” (97). Therefore, this difference in morality means that “[w]omen lack the capacity to sublimate their passion and are a perpetual source of disorder, so they must ‘be subjected either to a man or to the judgments of men’” (98). For Freud, women “‘represent the interests of the family and of sexual life.’ Men, on the other hand, are able to develop a sense of fraternity or community” (99). Furthermore, “[w]omen remain a permanent threat to social and political order, because of their weaker, or even absent, super-ego, which is the ‘internal representative’ in each individual of the moral and political law” (100). For Hobbes, women “lack all that is required to create and then protect the protection [. . .] afforded by the state and law to civil individuals” (102).

Pateman argues that dominant interpretations of contract theory and the original contract story pay little to no attention to the fact that “the story is about masculinity and femininity and about the political significance of physical (natural) sexual difference—or that the structure of civil society reflects the division between the sexes” (100). In order to move from an insecure state of nature where each man is a master of his own family (101), men make a fraternal pact that binds them together through “their common interest in upholding the civil laws that secure their freedom” (102). This includes the common interest in upholding the law of male sex-right (102). Marriage, then, replicates the sexual contract by establishing the “natural” relation between men and women that is necessary to uphold the fraternity in civil society. In that way, marriage forms the “natural” basis for civil society where men can interact with one another on a free and equal basis. Fraternal patriarchy is what binds the private and public spheres.

However, because women enter into the marriage contract, it begs the question of how these natural subordinates who supposedly lack the capacity to enter contract (or at least the original contract) can and must enter the marriage contract. Again, there is the paradox that the subordinate’s humanity and ability to act as a free and equal being must be simultaneously denied and assumed. Pateman gives the reason for women’s entrance into the marriage contract:

The reason that women enter into the marriage contract in the classic stories, and must do so (a reason on which I shall elaborate in detail in chapter 6), is that if universal freedom is to be presented as the principle of civil society, all individuals, including women, must enter into contracts; no one can be left out. In civil society, individual freedom is exhibited through contract (112).

Like the slave contract, “voluntary” subjection is a prime indicator of freedom and equality through contract. However, unlike the slave contract, the marriage contract is considered to have natural foundations—sexually differentiated foundations—that are integral to both private and public spheres. Thus, through her analysis in Chapters 3 and 4, Pateman demonstrates the character of contract as the creation of a relationship of subordination and the character of modern patriarchy as a fraternity of male sex-right. Each enables the other, but in order to obscure their relationship and what is created through that relationship, contract theorists engage in theoretical maneuvers that appear to resolve the contradictions inherent to contract. When the sexual contract is retrieved from obscurity, the contradictions become more evident, and all contractual relations come into question.