The Sexual Contract

“If the problem has no name, patriarchy can all too easily slide back into obscurity beneath the conventional categories of political analysis.”

Pateman refers to contemporary suggestions that political discourse should abandon the language and concept of “patriarchy” since there is little consensus on what it means or its relevance to modern society. She counters this suggestion by demonstrating that “patriarchy” has taken a distinct fraternal form in modern civil society.

“In civil society all men, not just fathers, can generate political life and political right. Political creativity belongs not to paternity but masculinity.”

Here, Pateman reiterates that modern patriarchy is fraternal, not paternal (as literal interpretations of “patriarchy” would assume). Because of this fraternal configuration, contract theory and contractual relations can appear post- or anti-patriarchal, but as Pateman shows, modern civil society and political right are structured by this fraternal pact.

“One of the advantages of approaching the question of patriarchy through the story of the sexual contract is that it reveals that civil society, including the capitalist economy, has a patriarchal structure.”

Again, Pateman argues that fraternal patriarchy structures modern civil society. Furthermore, the integral role it plays in the capitalist economy reveals that patriarchy is not confined to the private sphere, as dominant interpretations of patriarchy would suggest. 

“In civil society, all absolute power is illegitimate (uncivil), so the fact that a husband’s right over his wife is not absolute is not sufficient to render his role non-political. On the other hand, a distinguishing feature of civil society is that only the government of the state is held to provide an example of political right. Civil subordination in other ‘private’ social arenas, whether the economy or the domestic sphere, where subordination is constituted through contract, is declared to be non-political.”

Here, Pateman alludes to the bifurcation of civil society that allows the private sphere to seem nonpolitical. She goes on to show that it is precisely the husband’s conjugal right, secured through the sexual contract, that provides the “natural” foundation for men’s political right and participation in the civil sphere. Therefore, marriage and other private associations are political and should be considered in modern political theory.

“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.”

Again, Pateman points out that feminist analyses of the marriage contract stand to gain insight about the character of contract from contractual defenses of slavery and their contradictions. In light of slavery, there is room to consider how marriage establishes a relation of subordination and to explicate the theoretical maneuvers that make the unequal relation compatible with a civil society supposedly founded on a basis of freedom and equality.

“Although the claim that men have the capacity to give political birth stretches across the centuries, the argument neither continues unchanged until the present (as some feminist discussions suggest), nor disappears by the eighteenth century after the defeat of classic patriarchalism by the social contract theorists. The stories of an original contract and the revolutionary assumption of natural individual freedom and equality marks a fundamental change in the tradition of patriarchal argument.”

This quote alludes to the distinct character of modern patriarchy. It challenges the assumption of many political theorists that patriarchy is a universal feature of human society and the ahistoricism and fixity that accompany this assumption. The original contract, as well as the notions of individual freedom and equality, allow the transformation of patriarchy from a paternal right to a fraternal right. Furthermore, it is only those (white) men who are a part of this fraternal pact that enjoy individual freedom and equality in civil society.

“The birth of a human child can produce a new male or female, whereas the creation of civil society produces a social body fashioned after the image of only one of the two bodies of humankind, or, more exactly, after the image of the civil individual who is constituted through the original contract.”

Here, Pateman suggests that civil society is created in the image of white men. That is, civil society is constituted by relations of subordination whereby white men are the social standard against which all others are measured, i.e., subordinated. Although Pateman’s primary emphasis is on the sexual aspect, she does acknowledge that racially based subordination is integral to the configuration. Thus, the social body is both raced and sexed (and, as she goes on to show, classed).

“There is no need for the classic contract stories to include an account of the sexual contract. The original contract that creates civil society (which encompasses both the public and the private spheres) implicitly incorporates the sexual contract. In these stories, marriage and patriarchal family appear as the natural, necessary foundation of civil life. The natural foundation already exists (the sexual contract is presupposed) so that there is no need to tell a story about its origins.” 

Pateman explains that the origin of political right is conjugal right. However, because the contract theorists were able to ideate a state of nature in which marriage, family, and unequal conjugal relations already existed, along with the bifurcation of the private and public spheres, this conjugal right is a necessary but nonpolitical foundation for the original social contract. Therefore, the story of civil/political origins represses the origins of the private sphere, the fraternal sexual contract. 

“To tell the missing half of the story, to uncover the sexual contract and the origins of the private sphere, is necessary for an understanding of modern patriarchy. Yet, it is very difficult to reconstruct the story of the sexual contract without losing sight of the fact that the two spheres of civil society are, at one and the same time, both separate and interwoven in a very complex manner.”

This bifurcation of civil society, or the private/public split, is an integral construction of modern patriarchy. Their separation ensures that the fraternal pact is obscured in the creation of political right even as the patriarchal right of men in the private sphere enables their participation in the public sphere. What it means to be a “man” in the public sphere depends on the creation of manhood in opposition to womanhood in the private sphere.

“Civil society (as a whole) is patriarchal. Women are subject to men in both the private and public spheres; indeed, men’s patriarchal right is the major structural support binding the two spheres into a social whole.”

This reiterates the previous point that the private and public spheres are interwoven by patriarchal right, or the creation of the meaning of “man” in opposition to “woman.” Because men pass through both the private and public spheres, sexual differentiation in both is necessary for men to have a sense of themselves as social beings. Therefore, even when women enter the public sphere, the fraternal pact continues to structure the relationship between men and women.

“The sexual contract is made only once, but it is replicated every day as each man makes his own ‘original’ marriage contract. Individually, each man receives a major part of his patriarchal inheritance through the marriage contract.”

Throughout her analysis, Pateman notes that the sexual contract is hard to discern in the classic theory because it is subsumed under the marriage contract. This quote underscores that point. Patriarchal political right is secured in the conjugal home, as conjugal mastery provides the “natural” basis for civil mastery and participation in the public sphere. The patriarchal inheritance, then, is the right of access to women’s bodies that establishes men as women’s masters.

“Conjugal relations are part of a sexual division of labour and structure of subordination that extends from the private home into the public arena of the capitalist market.” 

Again, conjugal mastery is the “natural” foundation for men’s civil mastery and participation in the public sphere. The attachment of womanhood to domestic labor, or to being a “housewife,” provides the meaning for a man as a “worker.” Men’s employment presupposes the conjugal relation. Even when women enter employment contracts in the public sphere, domestic labor remains their responsibility.

“The question that is bypassed in all the argument about the duration of the employment contract, fair wages and exploitation is how this peculiar property can be separated from the worker and his labour. All the parties to the argument, in other words, tacitly accept that individuals own property in their persons.” 

Here, Pateman illuminates the problem with contractarian, socialist, and feminist defenses of contract. The idea of property in the person and the subsequent separation of labor power or services from the person is a political fiction that attempts to obscure the real subject of the contract: the body of the person. In all contractual relations, one party to the contract gains right over the body of the other party, thereby creating subordination, which would seem to contradict the freedom and equality of contract. The political fiction of property in the person is meant to solve this contradiction.

“To argue for the assimilation of marriage to the model of economic contract in the heyday of freedom of contract (if such a period ever existed) is to assume that the public and private worlds can be assimilated and to ignore the construction of the opposition between the world of contract and its ‘natural foundation’ within civil society. Contract appears as a solution to the problem of patriarchal right (status) because contract is seen as a universal category that can include women.”

This points to the inadequacy of the dual systems argument that often considers the extension of “individual” to women as the solution to their unequal status in the marriage contract. It overlooks the fact that the private/public split is integral to modern civil society and that “individual” is a patriarchal category that cannot include women. Through the private/public split, which is also the natural/civil split, “individual” is a political construct created in opposition to the meaning of “woman.”

“The conclusion is easy to draw that the denial of civil equality to women means that the feminist aspiration must be to win acknowledgement for women as ‘individuals.’ Such an aspiration can never be fulfilled. The ‘individual’ is a patriarchal category.”

Again, Pateman reiterates that the meaning of “individual” depends upon its construction alongside and opposition to the meaning of “woman.” Therefore, when feminist analyses advocate for the inclusion of women in the category of “individual,” they overlook the fact that their incorporation as “individuals” does not mean incorporation into the civil sphere with the characteristics of womanhood intact, but rather as replications of men.

“Indeed, recent studies by feminist historians show that prostitution in the contemporary sense—the form of prostitution that makes possible the contractarian defence of ‘sound’ prostitution—is a distinct cultural and historical phenomenon, which developed in Britain, the United States and Australia around the end of the nineteenth and beginning of the twentieth century.”

As with patriarchy, there is an assumption that prostitution is a universal feature of all human societies. The assumption involves ahistoricism and fixity: Pateman points out that an examination of contemporary prostitution reveals that it is a distinct form endemic to modern civil society. She elaborates on the legislation that allows this distinct form to take root and become a part of the capitalist structure and a facet of the sexual contract.

“The story of the sexual contract provides another explanation for the difference between prostitution and other paid employment in which women predominate. The prostitution contract is a contract with a woman and, therefore, cannot be the same as the employment contract, a contract between men.”

While prostitution is, indeed, a part of the capitalist structure, there are limitations to its comparison with employment. For one, as Pateman notes, it is not an employment contract between a worker and a capitalist, who are both presumed to be men. It is between two sexually differentiated parties, and that matters because it upholds the terms of the sexual contract, in which men gain the right of sexual access to women’s bodies. The prostitution contract, then, illustrates that patriarchal right is not confined to the private sphere. It is also articulated and affirmed in the public, capitalist market.

“Civil subordination is a political problem not a matter of morality, although moral issues are involved. To try to answer the question of what is wrong with prostitution is to engage in argument about political right in the form of patriarchal right, or the law of male sex right.”

Again, Pateman emphasizes that prostitution is one of the ways that men secure and affirm patriarchal right through the public, capitalist market. While dominant discourses have tended to focus on the moral implications of prostitution, Pateman argues that they should instead focus on the political implications. The moral arguments are merely a decoy to turn attention away from men’s participation in the prostitution contract and why that participation exists.

“The story of the sexual contract reveals that the patriarchal construction of the difference between masculinity and femininity is the political difference between freedom and subjection, and that sexual mastery is the major means through which men affirm their manhood.”

Pateman succinctly states that political difference follows from sexual difference. Furthermore, the difference is expressed through men’s sexual access to women’s bodies. Therefore, sexual mastery forms an integral part of political right, meaning that the private sphere is not apolitical, as dominant discourses have suggested.

“Thanks to the power of the creative political medium of contract, men can appropriate physical genesis too. The creative force of the male seed turns the empty property contracted out by an ‘individual’ into new human life. Patriarchy in its literal meaning has returned in a new guise.” 

Here, Pateman refers to the way that the surrogacy contract again transforms patriarchy into something much closer to the classic patriarchalism of Filmer. While the discourse around the surrogacy contract relies on the fiction of property in the person, and therefore it appears that a woman contracts the use of her birthing capacity, Pateman’s argument is that the woman contracts the use of her body. Because the man gains additional property in the form of the child produced from the surrogacy agreement, the surrogate mother becomes the empty vessel of classic patriarchalism.

“The contractual subjection of women is full of contradictions, paradoxes and ironies. Perhaps the greatest irony of all is yet to come. Contract is conventionally believed to have defeated the old patriarchal order, but, in eliminating the final remnants of the old world of status, contract may yet usher in a new form of paternal right.”

Again, Pateman points to how the surrogacy contract appears to be a further transformation of patriarchy back to its origins as political right. This suggests that contract in some ways undermines itself by enabling the very political structures it attempts to make illegitimate.

“To begin to understand modern patriarchy the whole story of the original contract must be reconstructed, but to change modern patriarchy, to begin to create a free society in which women are autonomous citizens, the story must be cast aside.” 

Pateman points out that society must abandon the theory of contract in and of itself to realize equality between the sexes. While the sexual contract offers a reconstruction of the original contract that illuminates many of contract theory’s inherent flaws and contradictions, adherence to the idea of contract will prevent new political possibilities from emerging. Because modern patriarchy is about domination, and contract is the vehicle through which that relation of domination and subordination is created, contract cannot fulfill the ideals of autonomy or equality. 

“An exploration of contracts about property in the person to which women must be a party—the marriage contract, the prostitution contract and the surrogacy contract—show that the body of a woman is precisely what is at issue in the contract. Furthermore, when women are a party to the men’s contract, the employment contract, their bodies are never forgotten. Women can attain the formal standing of civil individuals but as embodied feminine beings we can never be ‘individuals’ in the same sense as men.”

Pateman summarizes why she has considered the marriage, prostitution, and surrogacy contracts through the lens of the sexual contract. They deconstruct the political fictions that make contract appear compatible with freedom and equality and demonstrate that contract creates relations of subordination. Furthermore, she points to why contract must be abandoned altogether. The bedrock of the “individual” is constructed in opposition to women, so even juridical equality calls for women to replicate men rather than being incorporated into civil society as women on equal footing with men.