The Sexual Contract

The political fictions of contract theory are a running consideration throughout Pateman’s analysis. She illuminates these political fictions, thereby showing that contract creates relations of domination and subordination. The two primary political fictions handled in Pateman’s analysis are the story of the original contract itself and the idea of property in the person.

Pateman opens Chapter 1 by immediately acknowledging that contract theory is itself a fictional endeavor:

Telling stories of all kinds is the major way that human beings have endeavored to make sense of themselves and their social world. The most famous and influential political story of modern times is found in the writings of the social contract theorists. The story, or conjectural history, tells how a new civil society and a new form of political right is created through an original contract (1).

She reiterates the point in the concluding chapter of her analysis: “The original contract is merely a story, a political fiction” (219). The underlying motivation for this story is the Rawlsian idea of a “desired solution,” although Rawls himself would disagree with the notion that the original contract story is a political fiction. In Chapter 3, Pateman writes of Rawls that his “task is to find a picture of an original position that will confirm 'our' intuitions about existing institutions” (42). That is to say, in a society that claims to have a basis in freedom and equality, there must be some justification for why relations of mastery and subordination exist. The original contract story and the idea of contract itself provide this justification; the white male capitalists who dominate civil society can reason through the contradictions inherent to a society supposedly founded upon freedom and equality even as they institutionalize the opposite in the form of racially-based slave relations, sexually-based conjugal relations, and wage slavery.

Although Pateman only deals with slavery insofar as it is relevant to marriage (and to some extent employment), she does point out that it is the primary contradiction of contract and uses it to demonstrate how contract theorists use “reason” to make the contradiction seemingly disappear. In Chapter 3, she notes James Buchanan’s argument that “once the weak are conquered, a contract is made in which the weak agree to produce for the strong in exchange for ‘something over and above bare subsistence’” (61). Hobbes argues that slaves, after being captured and imprisoned by a master, enter into a contract in order to secure their release from prison and spare their own lives (68). Pufendorf claims that slaves freely offer their services, “being compelled by want or a sense of their own incapacity” (69). Further, he claims that men who acquired more in the natural state invite the poor to hire themselves out, thereby forming a mutually beneficial contractual relation (69). Each of these claims relies on the creation of an original state of nature—or, in the words of Rawls, an “original position”— that affirms the existence of slavery in civil society.

The same is true of the marriage contract, in which Pateman also sees the contradiction of slavery. Justifications for the subordination of wives to their husbands rely on constructing an original position in which this subordination is naturally based. The conjectural histories of contract theorists attempt to make the subordination inherent to contemporary institutions compatible with the claim that freedom and equality characterize civil society. The stories give white men (and capitalists) a sense of themselves in the present that absolves them of the violence, force, and conquest required to secure their power. As Pateman notes in Chapter 3, “slavery originated not in contract but in war and conquest” (64), and the conquerors employed a variety of means to “ensure that their slaves were marked as powerless” (64). In Chapter 5, she writes that “in practice, men continue to uphold their patriarchal right over women through 'strength', that is, through force and violence” (95), and women as wives face the threat of violence when they do not meet the demands of their husbands (130). Furthermore, she acknowledges that “[c]ontemporary capitalist managers enforce workers' obedience by regular evaluations of personal character and work-habits” (148), which, although not outright displays of violence, still imply a degree of coercion.

The fictionalized narrative of an original contract that attempts to both justify and obscure the subjugation created by contractual relations is supported by another political fiction—that of property held in the person. Pateman first acknowledges this fiction in Chapter 1 when she notes that Locke’s notion that “every Man has a property in his own person” is the juncture where patriarchy, contract, socialism, and feminism meet (13). The idea that one’s labor power or labor services can be separated from their person is central to the defense of contract. According to contract theory, treating one’s bodily capacities as a piece of property allows for the protection of the property through mutual agreement to contract out that bodily capacity on an equal basis. However, as Pateman points out in Chapter 5, there is no procedure that makes it possible to contract out labor power:

Labour power, capacities or services, cannot be separated from the person of the worker like pieces of property. The worker's capacities are developed over time and they form an integral part of his self and self-identity; capacities are internally not externally related to the person. Moreover, capacities or labour power cannot be used without the worker using his will, his understanding and experience, to put them into effect. The use of labour power requires the presence of its 'owner', and it remains as mere potential until he acts in the manner necessary to put it into use, or agrees or is compelled so to act; that is, the worker must labour (150-51).

She reiterates the integrity of the self and the self’s capacities in Chapter 7:

Masters are not interested in the disembodied fiction of labour power or services. They contract for the use of human embodied selves. Precisely because subordinates are embodied they can perform the required labour, be subject to discipline, give the recognition and offer the faithful service that makes a man a master (206).

Therefore, what is created in the contractual relation is the right of one party over the other party’s body or self. The political fiction of property held in the person provides further justification for inherently unequal institutions. By pretending that the subordinated party has agreed to the use of their “services,” civil masters—in whatever form they take—can absolve themselves of the violence, force, and coercion required for them to have mastery over another person’s body. The fiction is a theoretical maneuver on the part of contract theorists to make what are essentially conditions of slavery based on inequality compatible with the notions of freedom and equality.

Although the fiction of property in the person is meant to support the fiction of an original contract, it runs counter to it in some ways. It raises the question of how a natural subordinate (as the fiction of the original contract creates) could equally enter a contract in which they are exchanging their labor power or services (as the fiction of property in the person suggests). Pateman’s consideration of the political fictions of contract theory illuminate that it is full of attempts to reason through its own contradictions. What the idea of contract ultimately circles back to—what it has tried to explain away—is that force and absolutism are required for the establishment and maintenance of contractual relations (232-33). This force and absolutism are defining features of modern patriarchy and therefore modern civil society.