The Sexual Contract

Rosalind Coward (1952-Present) is a journalist and writer known for writing on feminist and environmental issues. She is an emeritus professor of journalism at Roehampton University. Her publications include Patriarchal Precedents: Sexuality and Social Relations and Female Desires: How They are Sought, Bought and Packaged. Coward is a key figure in Pateman’s text with Chapter 2 analyzing Coward’s argument in Patriarchal Precedents. 

Pateman discusses Coward’s interpretation of the second period of debate over patriarchy, with emphasis on Coward’s reading of Sir Henry Maine’s Ancient Law. Pateman notes that Coward interprets the second period of debate in much the same way that dominant analyses interpret the first debate—as a debate about paternal right rather than a debate about patriarchy as sex-right (26). Where Coward argues that Ancient Law marked a methodological and theoretical shift that overturned previous political theory, Pateman argues that Maine wrote within the parameters of his classic contract predecessors since wives still remained under the tutelage of their husbands after the overturning of the paternal patriarchal family (27). Thus, Coward serves as a key figure demonstrating the ways that feminist analyses of contract doctrine unwittingly read the debate over patriarchy within patriarchal terms, seeing it as a debate merely about father-right as political right rather than noticing the transfer of sex-right from father to sons—i.e., men as a fraternity—that characterizes modern patriarchy.

Zillah Eisenstein (1972-Present) is an American political theorist and gender studies scholar who specializes in political and feminist theory of class, sex, race, and the construction of gender. She is an emerita professor of politics at Ithaca College. Her numerous publications include Capitalist Patriarchy and the Case for Socialist Feminism, The Radical Future of Liberal Feminism, The Female Body and the Law, and Abolitionist Socialist Feminism. She is a key figure in The Sexual Contract, as Pateman discusses Eisenstein’s interpretation of the debate between Locke and Filmer in Chapter 2, which argues that most critiques of contract doctrine fall short because of confusion over what “patriarchy” means in contemporary discourse.

According to Pateman, Eisenstein, unlike many of her contemporaries, points out that Locke’s argument against paternal right as political right does not mean that he questions the power of husbands or the inequality between the sexes (22). However, Pateman argues that Eisenstein’s interpretation is ultimately inadequate because she is misled by Locke’s language of “paternal power,” calling the conjugal right in Locke’s work “paternal right.” Thus, Eisenstein serves as a prime example of feminist analyses that overlook the transformation of classic patriarchy to modern patriarchy by transferring sex-right from fathers to men as a fraternity.

Friedrich Engels (1820-1895) was a German philosopher, historian, political theorist, and revolutionary socialist. He was key to the development of what became known as Marxism, as he coauthored The Communist Manifesto, edited volumes of Das Kapital, and collaborated with Marx on a number of works in addition to financially supporting Marx’s research and work. Thus, Engels is a key figure in the development of socialism, so his theory is a point of interest in The Sexual Contract, which draws attention to the inadequacies of socialist critiques and interpretations of contract doctrine. 

In Chapter 5, Pateman devotes an extensive discussion to Engels’s The Origin of the Family, Private Property and the State. She calls the conjectural history included in The Origin the “locus classicus for the argument that wives are like workers” (133). Engels’s conjectural history treats all subordination as class subordination and draws no connection between sexual difference in the conjugal home and the capitalist market (134). Engels provides an example of the dual systems argument, whereby patriarchy is merely attached to socialist criticisms of capitalism rather than being seen as integral to the structure of capitalism. Pateman criticizes this dual systems approach throughout The Sexual Contract as she examines the marriage , employment , and prostitution contracts.

Robert Filmer (1588-1653) was an English political theorist who defended the divine right of kings. His most well-known work is Patriarcha, or The Natural Power of Kings, although it was published posthumously. He is a central figure in The Sexual Contract, as the defeat of classic patriarchalism, of which he was a strong proponent, is what allows contract theory to be interpreted as anti-patriarchal or post-patriarchal based on literal readings of patriarchy as paternal right. 

Pateman mentions Filmer’s debate with Locke in Chapters 1 and 2, noting that the work of classic contract theorists misses the sexual contract because of literal interpretations of patriarchy as paternal rule. She elaborates on Filmer’s perspective in Chapter 4, “Genesis, Fathers, and the Political Liberty of Sons,” drawing attention to how Filmer’s conjugal right is cloaked under fatherhood, even though Filmer makes it clear that political right is originally established as conjugal right (87). She also points out the procreative capacity of Filmer’s father and classic patriarchalism, which frame women as empty vessels for men’s ability to create physical life and appropriate women’s reproductive capacity in order to create political life (87). Pateman sees a return to this classic patriarchalism in the form of the surrogacy contract, which she discusses in Chapter 7. Thus, Filmer is key to Pateman’s analysis because without his role in the debate over patriarchy, classic contract theorists could not present contract as anti- or post-patriarchal or conceal the sexual contract integral to the original contract.

Sigmund Freud (1856-1939) was an Austrian neurologist and the founder of psychoanalysis. His work is influential across the fields of psychology, psychiatry, and psychotherapy. Although he is not typically considered in contract theory discourse, Pateman finds his conjectural history telling; he becomes a key figure in The Sexual Contract because his “stories make explicit that power over women and not only freedom is at issue before the original agreement is made, and he also makes clear that two realms are created through the original pact” (12).

Chapter 4 discusses this conjectural history at length. Pateman points out that sexual difference, whereby women supposedly lack the reasoning and moral capacities of men, is significant to Freud’s political order (99-102). Furthermore, Freud, like classic contract theorists, obscures sex-right as a beginning, even though he is more explicit about the two dimensions of a father’s political right being paternal and conjugal (103-05). Finally, there is the question of the original deed that establishes men’s political right being rape, although Freud himself denies that it is (107). Thus, Freud is a key figure in Pateman’s analysis because his conjectural history raises important questions about how/why contract establishes and secures fraternal patriarchy.

Georg Wilhelm Friedrich Hegel (1770-1831) was a German philosopher who is one of the most important figures in German idealism. His far-reaching influence in various fields makes him one of the fathers of modern philosophy. According to Pateman, he is considered the “greatest theoretical critic of contract” (15), particularly the ideas of the individual as owner and of contract all the way down (173). However, as Pateman demonstrates, even though his theory exposes some of the presuppositions of contract (56), he advocates for the marriage contract, the patriarchal construction of civil society, and a belief in sexual difference that has intellectual, ethical, and political significance.

Hegel is integral to Chapter 6’s examination of his debate with Kant over the marriage contract, where Pateman demonstrates the contradiction in contract theory that the subjection of wives is both denied and presupposed (168). Furthermore, feminist interpretations of Hegel’s perspective often miss the sexually differentiated constructions present in his theory and thus the sexual contract in his work. Therefore, Hegel serves as a key figure in Pateman’s analysis not only because his criticism of contract draws out some of contract’s contradictions, but also because it lies within the same patriarchal parameters of contract proponents.

Thomas Hobbes (1588-1679) is considered one of the fathers of modern political philosophy and contractarianism. His influence extends into fields of history, jurisprudence, geometry, physics, theology, and ethics. His most important work is perhaps Leviathan, where he expounds on social contract theory.

As a social contract theorist and contractarian, Hobbes is integral to Pateman’s analysis. In Chapter 1, she acknowledges Hobbes as the classical contract theorist who articulates contract’s most radical form, contractarianism, which holds the “individual” as the bedrock of contract and civil society (14). In Chapter 3, Pateman points to significant aspects of Hobbes’s theory that stand counter to his contemporaries—aspects that his contemporaries must reject in order for modern fraternal patriarchy to emerge. Even with those significant differences, Hobbes remains within the patriarchal tradition based on his assumption that in the state of nature, all women become servants to their husbands. Hobbes is central to Pateman’s insistence that feminist and socialist critiques of contract theory (and thus their subsequent solutions to exploitation and inequality) fall short; it is precisely their reliance on the Hobbes/contractarian “individual” that allows them to overlook the ways that contract is inherently patriarchal.

Immanuel Kant (1724-1804) is a central figure in modern philosophy. The fundamental idea underlying his work is that of human autonomy, which human reason facilitates. For Kant, human reason is the source of general laws of nature, so scientific knowledge, morality, and religious belief are all consistent with one another because they rest on the same foundation of human autonomy. His most important works are Critique of Pure Reason, Critique of Practical Reason, and Critique of the Power of Judgment. 

As a key figure in The Sexual Contract, Kant features in Chapter 6, where Pateman breaks down his view of the marriage contract and exposes the simultaneous denial and affirmation of women as “individuals” who can be party to the marriage contract. For Kant, all humans have reason and therefore the capacity to participate in civil life, yet human capacity is sexually differentiated, so women do not have political and civil reason (168). In other words, all women are meant to serve a master, i.e., a husband. Furthermore, while Kant denies the idea of property in the person, he makes certain theoretical maneuvers whereby entrance into the marriage contract allows both parties to become both owners and owned (although Pateman makes clear that the wife in Kant’s contract is the possession). Therefore, Kant provides a prime example of the contradictions inherent to contract as well as the patriarchal assumptions underlying contract regardless of whether theorists accept or reject certain contract ideas.

Gerda Lerner (1920-2013) was an Austrian-born American historian specializing in the field of women's history. She is one of the founders of the field of women’s history, being integral to the development of women’s history curricula as well as establishing the first doctoral program in women’s history. In addition to numerous scholarly publications, she has published poetry, fiction, theater pieces, and screenplays. Among her published titles are The Creation of Patriarchy, The Creation of Feminist Consciousness: From the Middle Ages to Eighteen-Seventy, The Woman in American History, Black Women in White America: A Documentary History, and The Female Experience: An American Documentary.

Lerner figures prominently in Chapters 2 and 3, as Pateman extensively discusses the conjectural history in The Creation of Patriarchy and Lerner’s speculation about the origins of slavery. With regard to The Creation of Patriarchy, Pateman demonstrates that even feminist interpretations of patriarchy are inadequate based on their assumptions about literal meanings, familial relations, and universality and ahistoricism, all of which cause them to miss the historical distinctiveness of modern patriarchy and the modern civil order (29-30). With respect to slavery, Lerner speculates that slavery originates in the model of subordination already established by men’s right over women, which included the sexual use of female slaves (65). Lerner is a key figure, then, not only because of her conjectural history of patriarchy’s origins, but also because she draws attention to the ways that men’s sexual access to women’s bodies is a key feature of women’s subordination. 

Claude Levi-Strauss (1908-2009) was a French anthropologist and ethnologist key to the development of structuralism and structural anthropology, which hold that there are certain underlying patterns of thought in all human activity. This structural theory is integral to the conjectural history on the origins of culture that makes him a key figure in The Sexual Contract.

In Chapter 4, Pateman examines Levi-Strauss’s conjectural history, whereby culture emerges from the law of exogamy, a law that is both universal and based in nature and holds that all men are equal in the competition for women, excluding their mothers and sisters (111). Therefore, marriage as the archetype of exchange is not about the exchange between men and women, but rather the exchange of women, which is what binds men together in fraternity as they become brothers-in-law (111). Pateman also points out in Chapters 1 and 3 that contemporary feminists draw on Levi-Strauss’s theory, missing the idea of sexual domination that is integral to it.

John Locke (1632-1704) was a British philosopher, medical researcher, and revolutionary. His work is characterized by opposition to authoritarianism and belief that government is legitimate only when it is established by the consent of the governed. In one of his most notable works, The Second Treatise of Government, Locke claims that sovereignty resides in the people and explains the establishment of legitimate government in terms of natural rights and social contract. Locke therefore is one of the classic contract theorists whose work Pateman examines extensively, drawing out much of the sexual contract integral to Locke’s conjectural history and theory of civil society. 

Locke figures most prominently in Chapters 3 and 4. In Chapter 3, Pateman notes his outright exclusion of women from the category of “individual” based on Locke’s assumption that women are naturally subordinate to men; this subordination is reflected in conjugal relations (52). Chapter 3 also discusses Locke’s distinction between freedom, free labor, and slavery, whereby contract ceases slavery between men (70). In Chapter 4, Pateman discusses how Locke conceals the nature of modern fraternal sex-right through his use of the language of “paternal power” and reiterating his belief in a natural foundation for women’s/wives’ subjection (93). His debate with Sir Robert Filmer underpins the book: It is precisely this debate with classic patriarchalism that makes Locke and his fellow contract proponents appear post- or anti-patriarchal, which is why, as Pateman points out in Chapter 1, his idea of property in the person as a defense for contract becomes attractive to socialists and feminists (13). 

Sir Henry Maine (1822-1888) was a British jurist and historian. He is most known for his text Ancient Law, in which he argues that society developed from status (based on associations within traditional groups like the family) to contract (characterized by individual autonomy and free associations). He is therefore a key figure in The Sexual Contract because of his contribution to social contract theory and because the publication of Ancient Law prompted the second great period of theoretical debate over patriarchy. 

In Chapter 1, Pateman notes that Maine’s idea of “status” is part of the theoretical maneuvering that allows social contract theory to appear post- or anti-patriarchal. Because “status” is understood as deriving from paternal jurisdiction, the patriarchal family, and the family as the fundamental unit of society, contract appears diametrically opposed; contractual relations replace paternal jurisdiction and make the “individual” the fundamental unit (9-10). In Chapter 2, Pateman notes the inadequacies of Rosalind Coward’s interpretation of Ancient Law, which reflect confusions about the meaning of patriarchy in the modern sense. Pateman demonstrates that Maine writes within the parameters of political theory set by his contract predecessors, and in Chapter 5, she points out Maine’s awareness that conjugal right is secured through the original contract and indicated in English Common Law (120).

Karl Marx (1818-1883) was a philosopher and philosophical anthropologist. He is most known for his criticism of capitalism and development of historical materialism, as well as The Communist Manifesto and Das Kapital. Marx’s critical theories about society, economics, politics, and class conflict now fall under the label of Marxism, and they have been influential to intellectuals, laborers, artists, politicians, and subsequent articulations of socialism. Marx’s philosophical conjectures and analyses make him a key figure in The Sexual Contract, as Pateman demonstrates how Marxist (and other socialist) critiques and embraces of contract miss crucial features of contract theory and modern patriarchy.

In Chapter 1, Pateman notes the socialist emphasis on exploitation, which she argues obscures relations of subordination created through contract, as well as socialists’ tacit acceptance of the idea of property in the person. In Chapter 5, she discusses the dual systems approach that characterizes much socialist analysis of capitalism and patriarchy. This approach applies the Marxist analysis of capitalist exploitation and extraction of surplus value to conjugal relations with inadequate results (133). For Pateman, Marx (and Engels) paid no attention to the sexual contract in the analyses of their socialist predecessors (136). Finally, in Chapter 7, Pateman discusses Marxist critiques of prostitution, noting that they make prostitution a symbol of capitalist exploitation but pay no attention to the sexual differentiation of the capitalist market (201-02). Therefore, Marx serves as a figure whose theory and influence are emblematic of the inadequacies of socialist analysis of contract theory, which often misses the patriarchal structuring of capitalism itself as well as the private/public split that is integral to modern patriarchy.

John Stuart Mill (1806-1873) was an English philosopher considered to be the most influential English-language philosopher of the 19th century. His work and theory fall within the camps of naturalism, utilitarianism, and liberalism, and he explores the consequences of absolute empiricism. Some of his most notable works are System of Logic, Utilitarianism, and On Liberty. He figures prominently in The Sexual Contract because of Pateman’s examination of On Liberty and his views on the marriage contract. 

In Chapter 3, Pateman discusses On Liberty, where Mill argues against state enforcement of the slave contract based on the reasoning that “[t]he principle of freedom cannot require that he should be free not to be free” (74). According to Pateman, Mill applies this same reasoning to the marriage contract and the subjection of women and is sympathetic to socialist concerns regarding the employment contract, but he does not bring these two criticisms together (75). In Chapter 6, there is an extended discussion of Mill’s view of the marriage contract. He likens becoming a wife to becoming a slave, and he calls for reform of the marriage contract to make it more like a business contract in which parties negotiate the terms on an equal basis (162). However, Pateman points out that Mill, like classic contract theorists, assumes natural sexual difference that leads to a sexual division of labor and women “naturally” choosing domestic servitude (162-63). Thus, Mill is another example of the inadequacies of socialist critique that find no connection between conjugal subordination and the capitalist structure; he also illustrates that even those who oppose slave contracts and advocate for women’s nominal equality often believe in natural sexual difference that justifies the sexual division of labor in civil society.

Samuel von Pufendorf (1632-1694) was a German jurist, political philosopher, historian, and economist whose theoretical approach is characterized as sexual, non-metaphysical, and anti-authoritarian. Among his views are the belief that marriage is the foundation of social life, with a natural obligation that nonetheless originates in a consensual pact. Therefore, he is also a key figure in The Sexual Contract. 

In Chapter 3, Pateman discusses Pufendorf’s conjectural history about the original contract. Although he argues that the difference between the sexes is not enough to ensure men’s natural mastery over women, it is enough to secure men’s conjugal right. Women, i.e., wives, owe obedience to their husbands in exchange for protection since men are naturally superior in strength (51). Similarly, he also writes a conjectural history of slavery that makes it compatible with the natural condition, with slaves also agreeing to obedience in exchange for the master’s protection (69-70). Pufendorf provides an example of the ways that contract theory justifies both women’s subordination and slavery, which for Pateman should give feminists and socialists pause when endorsing the idea that contract can establish equal relations.

John Rawls (1921-2002) was an American political philosopher falling within the liberal tradition. He is known for his theories of justice as fairness (that is, society constituted by free citizens with equal basic rights and an egalitarian economic system) and political liberalism (i.e., the legitimate use of political power within a democracy and civic unity within the diversity of perspectives that free institutions allow). His theory of justice as fairness places him within the social contract tradition, and he serves as a key figure in The Sexual Contract for the “original position” and views he lays out in A Theory of Justice. 

In Chapter 3, Pateman discusses A Theory of Justice, noting Rawls’s view of contract as an idea of reason rather than a political fiction (42). Thus, the original position that Rawls lays out is meant to confirm existing institutions, which in Rawls’s analysis have an intuitive correctness (42). Although classic contract philosophers would probably not characterize their state of nature in this way, Rawls explicit advocacy for a “‘desired solution” demonstrates that the theoretical maneuvers of contract, including its contradictions, work to justify the inequalities and subordination present in civil society by suggesting that people have entered freely into relations of subordination. Furthermore, Pateman points out that although Rawls attempts to make his “individual” in the original position sexless, the “individual” is necessarily still a sexually differentiated, patriarchal figure (43). Thus, Rawls represents the later contract theorists who uphold the sexual contract in their work while maintaining that the “individual” can include women.

Jean-Jacques Rousseau (1712-1778) was a Genevan philosopher who made important contributions to political philosophy and moral psychology. His influence on later thinkers is tremendous, and his most notable works include Discourse on Inequality, Julie, or The New Heloise, and Emile, or On Education, all of which receive attention in Pateman’s discussion. Rousseau’s primary concern in his work was achieving and protecting freedom, which he held was possible through the exchange of natural freedom for civil freedom. Therefore, Rousseau is one of the classic contract theorists whose work Pateman examines for evidence of the sexual contract.

In Chapter 1, Pateman discusses Rousseau’s view of civil mastery and civil subordination: that freedom allows individuals to subject themselves to civil subordination (7). Although he is critical of the slave contract and anything resembling slavery, Rousseau endorses the sexual contract and the subjection of women based on his belief in natural sexual difference. In Chapter 3, Pateman shows that Rousseau maintains that right of husbands over wives arises from the different natural attributes of the sexes, and he is vocal about what it is in women’s natures that justifies their exclusion from the civil arena and their subordination to their husbands (53-54). Chapter 4 discusses Rousseau’s view that women must be subject to be men not only because they are naturally subversive to men’s political order, but also because women who do not submit to men’s conjugal mastery threaten civil society since marriage and the family are the natural foundation of civil life (96-98). Rousseau, then, demonstrates the belief in natural sexual difference and the belief that political difference follows that undergird modern civil society.