The Sexual Contract

Pateman published The Sexual Contract in the waning days of second wave feminism: a loosely defined movement that began in the 1960s and focused on a range of issues, including reproductive rights and employment outside the home. Second wave feminism comprised a variety of perspectives and approaches, with Pateman coming out of the radical tradition specifically. Though itself diverse, radical feminism generally seeks to uncover and dismantle the root causes of women’s oppression, which it locates in patriarchy rather than, for example, in class (as a Marxist feminist might). However, with its focus on systemic injustice and the politics of even the personal, radical feminism perhaps diverges most from liberal feminism, which critiques women’s oppression from within the Western liberal tradition, emphasizing women’s claim to individual autonomy and equality before the law. This liberal tradition is precisely what Pateman critiques in The Sexual Contract.

In the beginning chapters, Pateman explains the inadequacy of dominant interpretations of contract and patriarchy. By pointing out that contract creates relations of domination and subordination (as opposed to securing freedom) and that modern patriarchy is fraternal rather than paternal, she argues that contract creates and secures modern patriarchy. The relationship between contract and modern patriarchy can only be understood when the sexual contract, an integral half of the original contract, is retrieved from obscurity. This is because the sexual contract tells the story of the construction of sexual difference that permeates and intertwines private and public spheres. The beginning examination of the assumptions underlying interpretations of contract sets the stage for Pateman’s later analysis of contracts in both spheres. 

In the preface, Pateman makes the crucial claim that “The sexual contract is a repressed dimension of contract theory, an integral part of the rational choice of the familiar, original agreement” (ix). This claim requires an explanation of what the original contract is and how dominant analyses present it. Thus, in Chapter 1, Pateman writes that the original contract stories, conjectural histories attempting to explain the social world, provide “[a]n explanation for the binding authority of the state and civil law, and for the legitimacy of modern government [. . .] by treating our society as if it had originated in a contract” (1). She also explains how the original contract is presented, noting that while the original contract is a social-sexual contract, many interpretations emphasize the social aspect while ignoring the sexual aspect (1). The emphasis on the social aspect frames the story as one of freedom, based on two qualifying factors: one, that the original contract entails the exchange of the insecurities of natural freedom for the equality-based, civil freedom protected by the state; and two, that the original contract also entails the replacement of paternal rule with civil government as proper political right (1). For example, Rousseau claims that “the social contract enables individuals voluntarily to subject themselves to the state and civil law” (7), and Sir Henry Maine presents the creation of modern civil society as the movement from the old world of status, i.e., literal patriarchal father-right, to the new world of contract (9). Pateman is not disputing that these claims are integral to the original contract story. Instead, she is arguing that when the sexual contract is brought into view, the meanings of “civil,” “freedom,” and “contract” and the question of whose freedom is protected by the civil state become clearer.

Without the sexual contract story, it is easy for the supposed freedom granted by contract to appear universal and factual. Pateman writes:

The genius of contract theorists has been to present both the original contract and actual contracts as exemplifying and securing individual freedom. On the contrary, in contract theory universal freedom is always a hypothesis, a story, a political fiction. Contract always generates political right in the form of relations of domination and subordination (8). 

The “relations of domination and subordination” noted here rest on the notion of patriarchal right (8), but the character of this patriarchy is missed in dominant interpretations of contract theory. As Pateman notes at the beginning of Chapter 2:

‘Patriarchy’ refers to a form of political power, but although political theorists spend a great deal of time arguing about the legitimacy and justification of forms of political power, the patriarchal form has been largely ignored in the twentieth century. The standard interpretation of the history of modern political thought is that patriarchal theory and patriarchal right were dead and buried three hundred years ago (19).

The misunderstanding about patriarchy arises from several assumptions that Pateman points out in both Chapters 1 and 2. The main assumption is the literal interpretation of “patriarchy” as father-right or paternal rule. In Chapter 1, Pateman notes that the debate between Sir Robert Filmer, a proponent of patriarchy in the literal sense of the word as political right, and John Locke, who “insisted that paternal and political power were not the same and that contract was the genesis of political right” (3), allows Locke and his fellow contract theorists to appear anti-patriarchal or post-patriarchal. Another significant assumption arising from the literal interpretation is that patriarchal relations are merely familial relations (23). This assumption allows political debate to ignore patriarchy because of the separation of the private and public spheres in modern civil society. Thus, when it comes to political debate between liberals and socialists, “Patriarchal domination lies outside their frame of reference, along with questions about the relation between the marriage contract and employment contract and any hint that the employment contract, too, is part of the structure of patriarchy” (13). The third assumption, that patriarchy is a universal feature of human society (23), implies a certain ahistoricism and fixity that obscures “the historical distinctiveness of the modern civil order” as well as modern patriarchy’s integral role in capitalism (30); patriarchy is instead seen as a “feudal relic or a remnant of the old world of status that sets the familial, paternal, natural, private sphere apart from the conventional, civil, public world of contract and capitalism” (23).

By pointing out these assumptions in the understanding of patriarchy, Pateman not only shows their interconnectedness to one another, but she also draws attention to how they allow socialists and feminists to join hands with proponents of contract and miss the subordination inherent to it. Integral to this joining and misinterpretation is the notion that “every man has a property in his own Person” (13), an idea put forward by John Locke, which becomes seemingly universalized to every “individual” in the form of contract doctrine put forward by Hobbes and other contractarians (14). As such, Pateman notes that “[t]he subject of all the contracts with which [she] is concerned is a very special kind of property, the property that individuals are held to own in their persons” (5). This notion of property in the person allows socialists and feminists to focus on exploitation rather than subordination, even though, according to Pateman, contracts about property in the person create a relation of subordination by placing the “right of command in the hands of one party to the contract” (8).

In other words, while socialist and feminist critiques recognize that contracts are often entered into on unequal terms that facilitate exploitation, they have not recognized that contracts necessarily render one party dominant and one subordinate. This critique of socialist and feminist analyses is perhaps where Pateman’s stance as a radical feminist is clearest. Pateman sees sexed subordination as civil society’s organizing principle, flipping the socialist argument that gender inequality arises from economic relationships and outright rejecting the liberal tradition as inherently oppressive.

The character of modern patriarchy and the relation of subordination created through contract only become clear when the sexual contract is brought into view as integral to the original contract. As Pateman argues, “Modern civil society is not structured by kinship and the power of fathers; in the modern world, women are subordinated to men as men, or to men as a fraternity. The original contract takes place after the political defeat of the father and creates modern fraternal patriarchy” (3). This fraternal patriarchy surfaces in the classic contract texts that hold that differences in rationality follow from natural sexual difference (5), thus viewing sexual difference as political difference (6). In other words, “what it is to be ‘man’ or ‘woman,’ and the construction of sexual difference as political difference, is central to civil society” (16), and only men, who pass through both private and public spheres, are the “individuals” to whom civil freedom is granted. This implies that fraternal patriarchy is the binding ingredient between the private and public spheres, which gives rise to questions about the relationships between actual contracts in both spheres, especially those involving women. Drawing Chapter 2 to a close, Pateman makes her trajectory for the rest of the book clear:

To understand modern patriarchy, including capitalist economic relations, it is necessary to keep the contract between master and servant or master and slave firmly in mind, and to consider the connection between ‘personalized’ contract in the domestic sphere and contract in the ‘impersonal,’ public world of capitalism (37).

She intends to do so by demonstrating that the sexual contract reveals that all of civil society, not just private relations, have a patriarchal structure, and that this structure masks relations of domination and subordination as relations that preserve equality and freedom through contract and the idea of property in the person.