The Sexual Contract

1
Contracting In

Telling stories of all kinds is the major way that human beings have endeavoured 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. An explanation for the binding authority of the state and civil law, and for the legitimacy of modern civil government is to be found by treating our society as if, it had originated in a contract. The attraction of the idea of an original contract and of contract theory in a more general sense, a theory that claims that free social relations take a contractual form, is probably greater now than at any time since the seventeenth and eighteenth centuries when the classic writers told their tales. But today, invariably, only half the story is told. We hear an enormous amount about the social contract; a deep silence is maintained about the sexual contract.

The original contract is a sexual-social pact, but the story of the sexual contract has been repressed. Standard accounts of social contract theory do not discuss the whole story and contemporary contract theorists give no indication that half the agreement is missing. The story of the sexual contract is also about the genesis of political right, and explains why exercise of the right is legitimate – but this story is about political right as patriarchal right or sex-right, the power that men exercise over women. The missing half of the story tells how a specifically modern form of patriarchy is established. The new civil society created through the original contract is a patriarchal social order.

Social contract theory is conventionally presented as a story about freedom. One interpretation of the original contract is that the inhabitants of the state of nature exchange the insecurities of natural freedom for equal, civil freedom which is protected by the state. In civil society freedom is universal; all adults enjoy the same civil standing and can exercise their freedom by, as it were, replicating the original contract when, for example, they enter into the employment contract or the marriage contract. Another interpretation, which takes into account conjectural histories of the state of nature in the classic texts, is that freedom is won by sons who cast off their natural subjection to their fathers and replace paternal rule by civil government. Political right as paternal right is inconsistent with modern civil society. In this version of the story, civil society is created through the original contract after paternal rule – or patriarchy – is overthrown. The new civil order, therefore, appears to be anti-patriarchal or post-patriarchal. Civil society is created through contract so that contract and patriarchy appear to be irrevocably opposed.

These familiar readings of the classic stories fail to mention that a good deal more than freedom is at stake. Men’s domination over women, and the right of men to enjoy equal sexual access to women, is at issue in the making of the original pact. The social contract is a story of freedom; the sexual contract is a story of subjection. The original contract constitutes both freedom and domination. Men’s freedom and women’s subjection are created through the original contract – and the character of civil freedom cannot be understood without the missing half of the story that reveals how men’s patriarchal right over women is established through contract. Civil freedom is not universal. Civil freedom is a masculine attribute and depends upon patriarchal right. The sons overturn paternal rule not merely to gain their liberty but to secure women for themselves. Their success in this endeavour is chronicled in the story of the sexual contract. The original pact is a sexual as well as a social contract: it is sexual in the sense of patriarchal – that is, the contract establishes men’s political right over women – and also sexual in the sense of establishing orderly access by men to women’s bodies. The original contract creates what I shall call, following Adrienne Rich, ‘the law of male sex-right’.1 Contract is far from being opposed to patriarchy; contract is the means through which modern patriarchy is constituted.

One reason why political theorists so rarely notice that half the story of the original contract is missing, or that civil society is patriarchal, is that ‘patriarchy’ is usually interpreted patriarchally as paternal rule (the literal meaning of the term). So, for example, in the standard reading of the theoretical battle in the seventeenth century between the patriarchalists and social contract theorists, patriarchy is assumed to refer only to paternal right. Sir Robert Filmer claimed that political power was paternal power and that the procreative power of the father was the origin of political right. Locke and his fellow contract theorists insisted that paternal and political power were not the same and that contract was the genesis of political right. The contract theorists were victorious on this point; the standard interpretation is on firm ground – as far as it goes. Once more, a crucial portion of the story is missing. The true origin of political right is overlooked in this interpretation; no stories are told about its genesis (I attempt to remedy the omission in chapter 4). Political right originates in sex-right or conjugal right. Paternal right is only one, and not the original, dimension of patriarchal power. A man’s power as a father comes after he has exercised the patriarchal right of a man (a husband) over a woman (wife). The contract theorists had no wish to challenge the original patriarchal right in their onslaught on paternal right. Instead, they incorporated conjugal right into their theories and, in so doing, transformed the law of male sex-right into its modern contractual form. Patriarchy ceased to be paternal long ago. 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.

Another reason for the omission of the story of the sexual contract is that conventional approaches to the classic texts, whether those of mainstream political theorists or their socialist critics, give a misleading picture of a distinctive feature of the civil society created through the original pact. Patriarchal civil society is divided into two spheres, but attention is directed to one sphere only. The story of the social contract is treated as an account of the creation of the public sphere of civil freedom. The other, private, sphere is not seen as politically relevant. Marriage and the marriage contract are, therefore, also deemed politically irrelevant. To ignore the marriage contract is to ignore half the original contract. In the classic texts, as I shall show in some detail, the sexual contract is displaced onto the marriage contract. The displacement creates a difficulty in retrieving and recounting the lost story. All too easily, the impression can be given that the sexual contract and the social contract are two separate, albeit related, contracts, and that the sexual contract concerns the private sphere. Patriarchy then appears to have no relevance to the public world. On the contrary, patriarchal right extends throughout civil society. The employment contract and (what I shall call) the prostitution contract, both of which are entered into in the public, capitalist market, uphold men’s right as firmly as the marriage contract. The two spheres of civil society are at once separate and inseparable. The public realm cannot be fully understood in the absence of the private sphere, and, similarly, the meaning of the original contract is misinterpreted without both, mutually dependent, halves of the story. Civil freedom depends on patriarchal right.

My interest in the sexual contract is not primarily in interpreting texts, although the classic works of social contract theory figure largely in my discussion. I am resurrecting the story in order to throw light onto the present-day structure of major social institutions in Britain, Australia and the United States – societies which, we are told, can properly be seen as if they had originated in a social contract. The sense in which these societies are patriarchal can be elucidated through the full story of the original contract; they have enough in common historically and culturally to enable the same story to be told (and many of my general arguments will also be relevant to other developed Western countries). The manner in which patriarchal domination differs from other forms of domination in the late twentieth century becomes much clearer once the sexual contract has been retrieved from oblivion. The connection between patriarchy and contract has been little explored, even by feminists, despite the fact that, in modern civil society, crucially important institutions are constituted and maintained through contract.

The relationship between employer and worker is contractual, and for many contract theorists the employment contract is the exemplary contract. Marriage also begins in a contract. Feminists have been greatly concerned with the marriage contract but their writings and activities have been ignored for the most part, even by most socialist critics of contract theory and the...