The Sexual Contract Twenty-Five Years Later: A Response

by Carole Pateman

     I would like to thank the contributors for their generous acknowledgment of the anniversary of The Sexual Contract and for their commentaries. It is hard to believe that a quarter century has passed since my book was published, yet, as the contributors point out, a good deal has changed. But not everything looks different; for example, despite advances by women, men still monopolize the authoritative positions in politics, the judiciary, higher education, and the economy, while women still earn less than men and are more likely to be poor than men.

     Fashions in terminology also change. I made use of the term "patriarchy" but, as Robyn Marasco observes, in certain Anglo-American academic feminist circles patriarchy now has a very old-fashioned ring (but I am not sure that it is so true elsewhere). My attempt in chapter two to show that patriarchy had a history was perhaps not successful. Is its use to speak of the power of men over women also now seen as an indication of being mired in a "binary"? However, if the term patriarchy is abandoned, the question becomes what should replace it. "The terms of feminist discourse," Marasco writes, "must be drawn from new realities." But first it has to be decided what exactly are the "new realities" and how they should be characterized. One enormous change is the much greater extent of the power exercised today by the economic doctrine of neoliberalism than was the case twenty-five years ago, and I shall touch on that again later.

     Another obvious candidate for a new reality is marriage. My book focused on the traditional marriage contract in Anglo-American countries and its legal underpinnings; the latter have been transformed since 1988, but some of the assumptions and attitudes that they embodied are harder to eradicate. Moreover, as Jack Jackson emphasizes, in the past twenty-five years "the law has moved from viewing same-sex marriage as being unthinkable" to the position in 2013, where in a number of countries and a number of states in the USA, it is now legal. Jackson also comments that criticism of the institution of marriage, still flourishing when I was writing The Sexual Contract, is now rarely heard. This is one of the more curious developments (as is the extremely large sums of money that are spent on weddings) when, as Marasco mentions, married couples now comprise slightly less than half of American households (78 percent in 1950). But the public benefits attached to marriage are numerous (for example, while I was writing this response, the British Prime Minister has announced legislation to give tax breaks to married couples) and exclusion from the benefits helped fuel campaigns for same-sex marriage.

     Gay marriage highlights the transformation of marriage, but Jackson argues that it also shows that my analysis of the original contract is wanting. He writes that "homosexuality is cast out of the social contract" and that it is "banished" from political life. Instead of women being "the impossible signatory to the original contract" it is, rather, "men who are not men, men who desire men." Stories of original contracts are stories about the creation of and justification of the power structures of the modern state. They are also stories about incorporation into those structures. None of the inhabitants of the state of nature are left out of the original contract—but that is not the same as saying that they are all signatories, or that they are all incorporated in the same way. The original contract is made by men; women take no part in it, but they are incorporated as men's subordinates. The sexual contract, one dimension of the original contract, justifies (is said to justify) the government of women by men across the three major institutions of the modern state: family (the marriage contract), economy (the employment contract), and citizenship (the social contract). Homosexual acts are one form of sexuality, but does the original contract also create "homosexual" as a modern identity?

     The Sexual Contract is about heterosexual relations. I endeavored to show how theoretical argument about one dimension of the original contract helped shape the structures of the modern state, and how fundamental theoretical assumptions are reflected in actual contracts that reproduce men's domination within major institutions. Clearly this perspective must, and does, leave a lot out. As Rousseau once remarked, it is not possible to discuss everything at once. However, towards the close of my book I state that my argument is actually less than half the story, as I had been claiming, because the men who made the original contract are white men. More recently, in a contribution to the study of the racial contract, I have looked at the doctrine of terra nullius and the way in which the native peoples of North America and Australia, who were not signatories to the original contract, were nonetheless incorporated (in this case as "savage" or "uncivilized" peoples) into the territory and jurisdiction of the modern states that their colonizers were constructing.¹

     Does my lack of attention to homosexuality undermine my analysis? I would like to reassure Jackson, who accuses me of being "at a loss to imagine sexual beings" who are not heterosexuals, that I have no difficulty on that score. He also says that I imagine homosexuals as irrelevant to "the sexual or social contract." On the latter point, I fear I must plead guilty in part. Let me make two comments and pose some questions; first, about the "social contract."

     The Sexual Contract is about institutions that are (said to be) created through the original contract, including marriage and (modern) heterosexuality; it is not about individual practices or identities. Jackson does not provide a story about homosexuals in the original condition, or say anything about homosexuality in the seventeenth or eighteenth centuries. The classic theorists of an original contract offer only very few scattered, oblique remarks about unnatural practices, from which it is unclear how prevalent they were in the state of nature.² Portrayals of the state of nature, except for that of Hobbes', include recognizable heterosexual families. Of course, married men can and do engage in homosexual practices, but that is different from "homosexual" as a contemporary identity. Without further argument, it does not seem obvious that homosexuality was "cast out" before the original pact was sealed. One could perhaps tell a story about how in the natural condition some heads of households go about their duties as masters and fathers, but sometimes engage in homosexual activities. Is that sufficient for them to be denied participation in the original contract? Once civil society is created, men, at least in recent times, spend a good deal of time and effort on "policing" heterosexual masculinity (the "policing" that Jackson attributes to me was merely theoretical). Homosexuals are not unique in the development of the modern state in being socially marginal, subject to legal sanction, and having to form movements to struggle for rights.

     Be all that as it may, my second point is about the sexual contract. Jackson quotes one passage in which I mention homosexuality, but ignores another. My argument was that government instituted by the original contract was fraternal in form. On pages 192-193, I briefly mentioned "the taboo" against homosexual relations between members of the fraternity, and wrote, "there is always a temptation to make the relation more than a matter of fellowship." I also wrote that if they succumbed to temptation, the foundation of the original contract could be shaken. Re-reading this brief passage twenty-five years later, my thoughts now are that, rather than the original contract, it is the sexual contract that is at issue. Jackson's comments raise an important question that has its staring point in the possible implications of legalizing same-sex marriage. I argued that the marriage contract, the employment contract and the social contract were all connected. This was true of the traditional Anglo-American marriage contract, but is it still true of the transformed marriage contract? Has the connection between the marriage contract and the economy and citizenship been weakened, even severed?

     I would not agree with Marasco that "what remains of the sexual contract are the private and public feelings attached to it." The sexual contract is not only about marriage and intimate relations between the sexes more generally; it is about men's government over women throughout the whole of social and political life, through politics, the economy, the law and social attitudes. As I noted at the beginning of my response, men still control most of the important positions in social, economic, and political life. Has the sexual contract begun to crumble, or crumble in certain respects, or is it, or are parts of it, beginning to take on a new form—a form suited to transformed marriage laws and anti-discrimination legislation in a more unequal, diverse, commercialized, sexualized, and privatized society? The very large question of the character of the changes over the last twenty-five years is complicated by neoliberal economic reforms. I think that, in the multitude of changes now taking place, it is too early for a definitive answer. Still, it is questions such as these that need to be addressed.

     Elisabetta Galeotti also discusses the connection between the original contract and the marriage contract. She states that a puzzle I am answering, is "why had the law defining marriage and the family to be called ‘contract,'" when women were already excluded from the original pact. She argues that I ignored private contracts, a feature of Roman law, in which the parties were unequal, and that the marriage contract secures legitimate heirs for the family property. In Hobbes' state of nature one reason why paternity is uncertain is the absence of matrimonial laws, and for women to be parceled out as subordinate wives, one to each man, is a way to attempt to overcome this difficulty. But this consequence of the marriage contract is peripheral to my own analysis. In fact, I posed a different question in The Sexual Contract: why was women's freedom both denied and affirmed in arguments about the original contract and civil society? I discussed why contract, including contracts about property in the person, is seen as the exemplar of freedom, and discussed the peculiarities of the marriage contract as a "contract." My answer was that if the claim that civil society (the modern state) is a realm of freedom was not immediately to be doubted, then the whole population, not merely half of it, had to enter at least one major contract.

     Two concepts that are central to my argument are property in the person and subordination. For the most part, commentators on my book have had relatively little to say about my argument about property in the person. Galeotti refers to self-ownership but, as I have discussed elsewhere, the two concepts are not synonymous.³ My argument is concerned with the consequences of voluntary entry into contracts about property in the person. It is not about unequal conditions of entry into contracts or exploitation, significant though these problems are. As Galeotti acknowledges, I am unlikely to agree that we should pursue the "hidden potentialities" of self-ownership. As she states, my argument is that "the property paradigm of freedom is to be overcome." This paradigm has been expanding apace with the power of neoliberalism.

     Virtually nothing now escapes the category of private property, whether it is genetic materials, seeds, or formerly public services and assets (privatization). This means that contract and the idea of property in the person, the latter still largely unacknowledged, are more significant than ever but, strangely, Marasco states that contract no longer has "the same purchase" as when I wrote The Sexual Contract. Labor markets are being constructed globally and so more and more people are entering employment contracts (commentators have said even less about my dissection of the employment contract than about property in the person). But employment contracts in the Anglo-American countries are no longer typically for jobs that in the 1980s still provided working-class men (the "breadwinners") with secure employment and decent wages and conditions. The industries in which such employment was located have mostly been swept away, while jobs for women in the service sector have multiplied. Today's jobs, for a "flexible" labor force, are increasingly temporary, part-time, or "zero contracts," with poor or no benefits and low wages. The neoliberal expansion has included the markets that make up the multi-billion dollar, global sex industry, which has also expanded enormously since I wrote my book.

     And this brings me to the "rather unfortunate episode," as Marasco calls it, of my discussion of prostitution. My definition of (modern) prostitution has aroused her particular ire, and it is thus rather unfortunate that she seems to have misunderstood what I was writing about. The Sexual Contract, as I noted above, is about structures and institutions, and my argument about prostitution is not about individual prostitutes but the institution of prostitution, which is part of the trade in property in the person and part of capitalism. No doubt my analysis could be improved upon, but only if the criticisms are directed at what I actually wrote about rather than resting on such fashionable notions as transgression, feelings, experiences, desires. To study the experiences of prostitutes would require an ethnography, not an analysis in political theory. I do not know if empirical evidence is available about the proportion of prostitutes who enter the trade because of desire or who experience even "a little bit" of satisfaction, but I would expect that it would be very far outweighed by the proportion of those who enter for economic reasons, drug addiction, or because of destitution. Most prostitutes are women (I left aside, as I noted in my book, the not-inconsiderable demand for little girls, and also male prostitutes). My definition is of an institution that involves the exchange of money for sexual services (property in the person) and, as an institution, has nothing to do with women's desire, but has a lot to do with women's survival—and the very large profits of those who control the global sex industry.

Notes

¹ Carole Pateman, "The Settler Contract," in Carole Pateman and Charles Mills, Contract and Domination (2007). Since writing The Sexual Contract I have come to see that the original contract has three dimensions, the social contract, the sexual contract and the racial contract. The three dimensions are simultaneously brought into being as the original contract is sealed (none is prior to the other; the sexual contract does not precede or provide grounds for "the social contract" as so many commentators assume).

² Jackson is writing about male homosexuals, not females.

³ Carole Pateman, "Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts", Journal of Political Philosophy 10, no. 1 (2002): 20–53.