Excerpt: The Sexual Contract
From “The Sexual Contract,” by Carole Pateman (Pages 149-152)
Feminist and socialist critics of the marriage contract and employment contract severely weaken their criticism when they rely on the categories ‘exchange’ and ‘labour power’. When argument is couched solely in the terms of labor power, critics tend to concentrate on the absence of a fair exchange between capitalist and worker; that is, they concentrate on exploitation (both in the strict Marxist sense of extraction of surplus value and the more popular sense of unjust and unfair treatment). Subordiniation can then be seen as arising from explitation (or as part of exploitation) rather than as the relation that makes exploitation possible. Marx provides an illustration of this point. In his polemic against Lassalle in the Critique of the Gotha Programme, Marx argues that Lassalle takes wages at face value as payment for the worker’s labour, instead of seeing that wages are payment for labour power. Marx stresses that the worker can only gain his livelihood if he works for nothing for a certain time for the capitalist (i.e., the latter expropriates surplus value). Capitalism depends on the extension of this free labouor by such means as lengthening the working day; *’consequently’*, Marx states, ‘ the system of wage labour is a system of slavery.’ But wage slavery is not a *consequence* of exploitation - exploitation is a *consequence* of the fact that the sale of labour power entails the worker’s subordination. The employment contract creates the capitalist as master; he has the political right to determine how the labour of the worker will be used, and - *consequently* - can engage in exploitation.
If the free worker is to stand on one pole and the slave in his absolute servitude is to stand at the other - or, conversely, if the employment contract is to be extended into the civil slave contract - it is necessary to make a sharp distinction between the sale of the slave himself (he is a commodity or a piece of property) and the sale of the worker’s labour power (a commodity external to himself, the owner). [Pateman here refers to the worker-as-abstract-person OWNing his body as a piece of property] The ‘individual’ [abstract - that’s why she uses quotes] owns his labour power and stands to his property, to his body and capacities, in exactly the same external relation in which, as a property owner, he stands to his material property. The individual can contract out any of his pieces of property, including those from which he is constituted, without detriment to his self. However, although labour power is property, a commodity, it is not quite the saem as other material property. One difficulty is that,
“with most commodities at the contract of sale, the acquisition of the use-value, are concluded more or less at the same time. In the case of wage-labour there is a problem for the capitalist in that after hiring the worker he must find ways of enforcing performance of work with desired quality and in maximum quantity.”
Socialists have not been alone in noticing that labout power is an extremely odd commodity. T. H. Green, for example, a liberal writing in 1881, argued that ‘labour . . . is a commodity which attaches in a peculiar manner to the person of man . . . [Labour] differed from all other commodities inasmuch as it was inseparable from the person of the labourer.’ Green insisted that it folowed from this peculiarity of labour that freedom of contract, the right of the individual to do as he wills with his own, is never unlimited. He argued that a slave contract cannot be a valid contract, albeit entered into volunterily, since it prevents any further exercise of a man’s freedom and free use of his capacities. Restrictions can legitimately be placed on the sale of this commodity so that all men can remain in a position ‘to become a free contributor to social good’ and enjoy their freedom on the same footing as others. Green does not spell out exactly why it is that the curious attachment of labour power to the person means that freedom of contract must be curtailed. Unless the case is made in full, contractarians can always respond that the restriction is arbitrary paternalism. The questionthat 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.
… … In short, the contract in which the worker allegedly sells his labour power is a contract in which, since he cannot be separated from his capacities, he sells command over the use of his body and himself. To obtain the right to the use of another is to be a (civil) master. To sell command over the use of oneself for a specified period is not the same as selling oneself for life as another’s property - but it is to be an unfree labourer. The characterstics fo this condition are captured in the term wage slave.
The term wage slave ceased to be fashionable among socialists a long time ago. In its own way, ‘wage slave’ is as indispensable as ‘patriarchy’. Both terms concentrate the mind on subordination, and, at a time when contract doctrine is so popular, such reminders are necessary if feminist criticism of the marriage contract and socialist criticism of the employment contract are not to tip over into collusion with contractarianism…
… … The wage slave is subject to the discipline of the employer - but the workplace is also structured by patriachal discipline. Women workers are not wage slaves in the same sense as male workers, and nor is the subordination of the wage slave the same as that of a wife. Both employer and husband have a right of command over the use of the bodies of workers and sives, but although each h usband has his own specific demands, the content of the labour of a housewife is determined by the fact that she is a woman. The content of the labour of the worker is determined by the capitalist, but since capitalism is patriarchal, the labour of women workers is different from that of male workers. because the subjection of wives derinves from their womanhood and because the sexual division of labour extends into the workplace, it is tempting for feminists to conclude that the idea of the [absract] individual as owner [of the body] is anti-patriarchal. If women could be acknowledged as sexually neuter ‘individuals’, owners of the property in their persons, the emancipatory promise of contract would seem to be realized. Or so many critics of the marriage contract now argue.
[Get this book! -SG]
DeAnander:
Wombs For Rent… Cheap
speaks for itself.
here’s the “free market contract” in action.
20 April 2006, 8:50 pmStan:
Jeez! This must be the development that neoliberalism has been promising.
20 April 2006, 9:33 pmDeAnander:
Yeah, this is that promised “increased prosperity” that global capitalism is bringing to the third world.
Some rather poorly written random thoughts on a related topic
the one point I managed to make here which has been haunting me for some time is this: the fair wage for the dirty jobs is what someone would have to pay you or me to do them.
if we would not do the job for the same wage we’re willing to pay to have it done, then I think it is de facto exploitation (and spare me all the cr*p about different living standards blah blah).
what would someone have to pay me to tent houses for termites and expose my skin and lungs to neurotoxins on a daily basis? a helluva helluva lot. what are the almost-entirely-Hispanic work crews being paid who do this job in my state? minimum wage? wanna bet?
anyway I touched briefly in the ramble cited above on the disingenuity of hiding relations of dominance under the flexible notions of “specialisation” and “comparative advantage”.
thinking about the rent-a-womb business I find myself wanting to ask those (poor things, unable to procreate and perpetuate their ghastly lifestyle) American couples, “What would someone have to pay you, Sir, and you Ma’am, to provide this service for a stranger?”
the whole thing reminds me weirdly of droit de Seigneur…
21 April 2006, 1:48 amElaina:
GAH!!! De- I read that and you know? It’s stuff like that that makes me take stock of the privilege I have as a gringa Woman, makes me stop bitching for a few minutes about my own life and think about how no matter how fucked up it is, well, at least I don’t have to sell children that come from my body to gringo yuppie scum.
Lord have mercy.
Even if I AM a white, wage-slavery poster-child. Hopefully I’m being dutiful at least in some ways, in not aiming to be part of that couple with the means to fly around the world to get a person to have a child for them.
And yeah, I think I’m gonna have to get this book.
21 April 2006, 2:52 amStan:
To any and all, the post De links above is well worth the time spent reading it and refecting on its implications.
This body-as-property thing is pregnant with challenges, to coin a metaphor. That’s why Pateman’s book just blows me away. The example of the Indian women contracting to “carry” children is a staggering example. (The term “carrying” children goes back to the patriarchal notion that men are the agents of generation, and women merely the vessels to provide them with children. No whiff of slavery there, eh?)
I know that for some folks who’ve been padding about in these thickets for a long time, this is not an epiphany. But as a novitiate, the body-as-property piece strikes me as a primary toe-hold to climb up and begin the demolition of liberalism/libertarianism.
Working out the basics here… nothing rigorous.
Point 1 - You don’t HAVE a body. You ARE a body.
Point 2 - If you claim to have a body, then identify the possessor of the body. Locate him/her in time and space, and describe this owner.
Point 3 - Personhood is NOT a property relation.
Point 4 - The assertion of bodily-personhood undermines the fiction of property.
Point 5 - Domination involves the appropriation of time and space - via the bodies of others - through fictional entitlement.
Our existence begins and ends with the body. Our relations are mystified - and power concealed - by abstraction.
Thoughts over coffee.
21 April 2006, 9:05 amDeAnander:
starts with separation of body and soul (dualism).
more later.
21 April 2006, 5:44 pmDeAnander:
Contract theory is also how the modern military is kept docile…?
Anti-Wat Soldiers
volunteering implicates them…
and of course in a sense it does. just as “choosing” prostitution implicates some women, especially in the eyes of contract theorists. for many of these boys and men the choices they went in with were a rather circumscribed menu… not as limited as the choices of many prostituted women, but still limited (cf my earlier link on freedom and choice).
I wish we could get past this cynical use of the concept of agency to duck any assessment of the contraints w/in which people are exercising their agency. said it before, say it again: you can exercise choice in how you approach the scaffold but it doesn’t change the material conditions (i.e. being about to be hanged, and marched along by armed guards).
21 April 2006, 9:04 pmelaina:
Great God Almighty, I think I just had a blog-induced wah-wah moment.
We’ve abstracted our minds into their own critters. How fucked up is that? When I think about how often I say stuff like “my body” does this, or “my body” wants that…egad.
I AM somebody! For some reason this makes me want to go to the gym.
21 April 2006, 9:06 pmJosiah:
Not to take focus off of Carol Pateman, but there’s another excellent work in the contractarian tradition by a Jamaican philosopher, Charles W. Mills, called “The Racial Contract†that I would recommend to people here. (Mills and Pateman, as far as I understand, are now writing a book together called “Contract and Domination.”) “The Racial Contract†is the best examination of the state or polity from the standpoint of race that I have read, by far. Some people will call Mills a “liberal,” but his writing is a radical rejection of liberalism as it actually has existed, with personhood and citizenship being limited to Europeans (with intra-racial inequalities of gender and class, of course) for most of modern Western political history. Here’s a review:
22 April 2006, 1:50 pmhttp://www.politicalreviewnet.com/polrev/reviews/CONS/R_1351_0487_007_19285.asp
Stan:
Mills is a very distinguished socialist and his collaboration with Pateman can be nothing but good. This is one to look forward to.
22 April 2006, 2:49 pmJulian Real:
That the body/mind/spirit isn’t contractible isn’t discussed (or realised) in proper CRAP society. That human beings, especially of Colour, especially women, are not “things” is not regarded generally, or manifested, in CRAP. As MacKinnon asks: Are Women Human?
From dictionary.com:
Main Entry: 1con·tract
Pronunciation: ‘kän-”trakt
Function: noun
Etymology: Latin contractus from contrahere to draw together, enter into (a relationship or agreement), from com- with, together + trahere to draw
1 : an agreement between two or more parties that creates in each party a duty to do or not do something and a right to performance of the other’s duty or a remedy for the breach of the other’s duty; also : a document embodying such an agreement…
Intriguingly, there is this definition of contract as well:
con·tract (kn-trkt, kntrkt)
v. con·tract·ed, con·tract·ing, con·tracts
1. To reduce in size by drawing together.
2. To become reduced in size by or as if by being drawn together, as the pupil of the eye.
3. To acquire or incur by contagion or infection.
Conceptions/treatments/mistreatments of self/Self/others/Other that allow for contracts to be drawn, dividing up the self into profitable pieces, manageable morsels, means that the bosy/mind/spirit is rended, or contracted, reduced in size.
I have not read these authors, but am aware that they may be dealing with these issues, and I will be reading them soon. They come highly recommended to me by a woman whose opinion I deeply trust, and I see no reason to hold up making reference to them even though I have not yet taken in their wisdom/knowledge/analysis:
Kesho Scott: “The Habit of Surviving: Black Women’s Strategies For Life”, “Tight Spaces: Singular Lives”
Pearl Cleage: Deals with the Devil: And Other Reasons to Riot (essays). She is also a novelist and playwright, poet, and journalist.
Franz Fanon:
http://www.english.emory.edu/Bahri/Fanon.html
22 April 2006, 3:14 pmCharles Brown:
Legal contracts involve promises exchanged and conditioned on each other. Many sexual relationships involve exchanges of promises and are “contractual” in that sense. Agreements. However, of course, these romantic and exchanged promises are not enforceable in law courts in quite the same way as the contracts taught in law school or tested in bar exams.
Legal marriage vows certainly give rise to legally enforceable rights, but I don’t know if we can say any longer that they entail contract like remedies. Have to think about that a bit.
Historically marriage was termed a contract legally. But what unequal bargaining power between the parties ! A contract of adhesion if there ever was one.
Ironically, today women have won much greater equal bargaining power as compared with the original marriage contracts. This would cut in favor of analyzing marriage as contracts.
Anyway, I think this discussion is using “contract” more broadly than only for marriage, yet, including all marriage , no ? Or did I misread ?
I would not say that any sexual promises are enforceable in anyway in law courts. Used to be that not baring children was a basis for divorce. Now divorce can be had at will. Oh that is another reason that marriages are no longer contracts. Contracts that are rescindable at the will of one or both of the parties are termed illusory contracts. No fault divorce laws render all marriage contracts illusory.
Also, there used to be heinous law of no rape in marriage. This has been abolished. Another victory for women’s liberation movement ! In context of this discussion, this means directly that promise of sex in marriage ( in marriage vows etc.) is not legally enforceable, ( thank God !).
In U.S. can say that promise of sex in marriage is not an enforceable contract right in the legal sense of contract.
Obviously, a promise of sex outside of marriage is not only not enforceable in court, but depending on the consideration, that promise for which it is exchanged, might be nonlegal, so to speak. ( “Consideration” is the promise for which a promise is exchanged. There must be reciprocal promises for there to be a contract. Promise going in one way only is a “gift”, not contract).
Is an exchange of sexual promises analogizable to legal contract ? Maybe. There is an exchange of promises. Again, in this analysis of unequal power or bargaining strength between the parties -they do not bargain at arms length , is the expression of art - the notion of a contract of adhesion might apply. The basic idea is that there is an unfair pre-contract bargaining situation, so one party is able to get an unfair advantage in the contract that is “agreed” to.
If one party does not have “free will”, then there isn’t a true “meeting of the minds”. Contracts made with one party under duress are voidable; can’t hold a gun to someone’s head and make a binding contract with them.
If in general, women are in a less powerful and poorer position and status than men, then the promises they exchange for romance are “contracts” of adhesion , made under unequal bargaining power. Obviously, this is a generalization for which there would be specific cases for which it is not true.
Relationship between master and slave is not a contract. This book and thread interestingly push thinking exactly how master/slave relation is different from capitalist/wagelabor relationship.
It was the law that the slave did not own her own body in the U.S. under Washington, Jefferson ,et al.
Any promises made by Jefferson to Sally Hemmings were certainly not enforceable…
Thus, contract metaphor might analyze sexual exchanges of promises.
I do not look at employment contract, as that is analyzed widely elsewhere in working class partisan literature, for evident reasons. Clearly, the worker and boss do not have equal bargaining power, in general, etc.
23 April 2006, 11:30 amStan:
This excerpt is not enough to outline the history of contract that Pateman covers, which is in no way metaphorical. I put the excerpt in as a teaser to try and convince folks that this is a worthwhile read.
The Mills-Pateman collaboration on contract regarding sex and race is very exciting.
33 of the states still retain “exceptions” for marital rape, and one body of US law still denies that rape can happen either in marriage or to a man by another man. The Uniform Code of Military Justice.
The crux of this critique of liberal law, however, is the remains the abstract “possessive individual,” and the fragmentation of mind-body.
Many presumptions underwrite the contract in general. One that underwrote the contract theorists who claimed that slavery is a contractual relationship (and there were those who DID) is the same as the presumption that underwrites gender domination now… “the exchange of protection [read warranty of physical survival] for obedience.” This is where Pateman is going.
23 April 2006, 11:51 amCharles Brown:
Yes, I analyzed marriage in terms of literal contract. I only mentioned metaphorical contract so as not to imply that concept of contract isn’t useful in thinking about it, even though it doesn’t fit literal contract all the way. Fits some, but…
Not surprised somebody claimed master-slave relation is a contract. But employment-at-will doctrine means employment contract can be terminated at will of either party (employment contract is different than other contracts in this regard). Clearly, that was not the case in master-slave relationship.
Also, contracts are initiated between two people with “free will”. Slaves are forced into relationship. So, can’t be a contract in the literal sense. Then Dred Scott decision held Black man (sic) has no rights white man is bound to respect. It follows from that that there could be no contract relationship between them. With due respect, analyzing master-slave relation as contract doesn’t make any sense. Women slaves were doubly unfree in this regard.
I’m not defending contract concept as desirable. It’s definitely liberal, i.e. bourgeois. However, I am knowledgeable about this bourgeois legal principle.
Separation of mind/body is a famous (bourgeois) philosophy issue, so not surprising it arises in contract conception. I’m trying to figure the further implications of this for politics here.
As to abstract possessive individual, most certainly agree. That’s fundamental to the notion of PRIVATE PROPERTY.
Abolition of private property in this sense is central aim of you know who.
24 April 2006, 2:21 pmJulian Real:
RE: Also, there used to be heinous law of no rape in marriage. This has been abolished.
This does not mean that rape doesn’t happen frequently in marriage, or in many heterosexual relationships, however.
What the whitemale supremacist laws still demand is that people become gendered, and that a man’ed person is allowed to marry a woman’ed one, with disproportionately negative consequences for the woman’ed person.
What the law doesn’t seem concerned with, as noted earlier, is how becoming woman’ed, in part, according to CRAP, means relinquishing the right to say no, or that a no doesn’t mean no, such as to a husband. I know a woman who had sex with her husband often, but never really wanted to. She felt obligated to. What does the law call that? I only hear silence.
25 April 2006, 1:44 pmJulian Real:
What whitemale supremacist law also doesn’t wish to own, is that making a person man’ed means infusing “his” mind and attitudes with entitlements and privileges which allow him, legally, to take advantage of women’ed people sexually, and emotionally.
25 April 2006, 1:45 pmDeAnander:
there were cases I believe where a woman could file for divorce on the grounds of nonconsummation, i.e. the male not fulfilling his contractual marital obligations. but only among the upper classes where marriage was contractual in larger senses — political alliance, property rights, lines of inheritance.
25 April 2006, 6:49 pmCharles Brown:
Julian,
Yes, in general ,the law in the U.S. is male supremacist, racist and _capitalist_.
However, the legal concept treats parties to a contract as equals. So, to refer to a “sexual contract” implies somehow that there are some sexual relations between women and men in which they are treated equally by the law, as with a contract no ? So, I am saying that referring to sexual relations between women and men as a “contract” might be misleading, since, as you imply, in general, sexual relations are not equal relationships, i.e. _not_ like contracts. See ? Calling unequal sexual relations a contract gives it too much credit, though I’m not trying to compliment contract law. I don’t give a damn about contract law. I’m just examining the use of the term “contract” to describe sexual relationships. The problem with referring to sexual relations as a contract is that the “parties” are not equal, they don’t have equal bargaining power in forming the “contract”, etc.
Contract law is the law the business class has for equal relations among themselves.
As to white male supremacist law requiring people to become gendered to become married, does it ? The law requires that parties to a marriage be of opposite sexes. If one of the parties is a crossdresser, or otherwise publically represent themselves as of a gender different than their sex the law doesn’t prohibit marriage on that basis. In other words, the law doesn’t prohibit a crossdressing male from marrying a female. Both parties to a marriage can legally wear female gendered clothing or the like.
Again, not to give the law credit, but in this regard the law is silent on gender. It is not precise to claim it is the law that mandates becoming gendered , as you put it.
As to a woman saying “no”, actually, the _law_ does prohibit rape, i.e.non-consensual sex. The law even puts an absolute prohibtion on minor females consenting to sex. The police and enforcers of the law may be piggish and look for “consent” where it is not. But the written law on its face defends very strongly a woman’s right to say no. The law defends a gendered woman’s right to say no. And in fact, if it is a white woman and a Black man, the police are going to go out of their way to lynch the Black man, in general still. In fact, as you well know, used to be the law and the vigilantes might lynch a Black man for even whistling at a white woman.
So, as much as I don’t like “the law”, it actually is extremely strong in protecting a gendered woman’s right to say no to sex. Rapists are outlaws.
In other words , the following is false:
“What the law doesn’t seem concerned with, as noted earlier, is how becoming woman’ed, in part, according to CRAP, means relinquishing the right to say no…”
As to , “I know a woman who had sex with her husband often, but never really wanted to. She felt obligated to. What does the law call that? I only hear silence, ” ,the law is partially silent. Not to give the law any credit, but it doesn’t require the woman to have sex if she doesn’t want to.
But the law is not silent as to what she can do about it. If she wants a divorce, she can get it on her unilateral desire to have it , without her giving a reason ( she doesn’t even have to say I want to stop him from bothering me about having sex; she can just say ” I can’t get along with him anymore” without saying a word about sex; that’s legally sufficient); and the law will divide the couple’s property evenly between them, and possibly give her spousal support if she hasn’t been working, and it will almost certainly give her custody of the children and child support. I hate to admit it, but the law is no longer male supremacist in the area of divorce law. Divorce law has come a long way, baby. The current state of divorce law is more feminist than the state of consciousness of actually existing men, in general. My attitude is count this advance in the law as a victory won by the women’s movement.
Of course, in general women are poorer after divorce, and economically improved by getting married, so economically, women want marriage more than men. How’s that for a paradox ? The only solution for that is pay equity, work for women, affirmative action. But that’s not an issue of divorce law. That a fight against capitalism and capitalist law.
Charles
26 April 2006, 5:26 pmStan:
US law is male, white, and bourgeois precisely because socially-structured male power over women, socially-structured white power over non-white, and socially-structured bourgeois power over other classes are operational before the operation of the law.
Liberal law accomplishes a remarkable feat in transforming inequality into equality, and subordination into freedom. It does this not merely through the fomral, legal contract, but through the conventions and presumptions that undergird liberal law, which are historically constituted out of the notion of “social contract.”
Pateman’s research on this history is thorough and impeccable. This book is seen by many as nigh-on canonical, and with good reason. That’s why I am suggesting folks read it if they haven’t BEFORE they dive into any commentary. My hope was that there might be a discussion of this book.
In any case, reference to a sexual contract does NOT imply anything at all. Pateman’s claims are explicit, not implicit. And at the very root of her claim is the fact that contracts are not the least bit equal. They are a device to transform real inequality into legal (abstract) equality, and real subordination into legal (abstract) freedom.
She focuses on three dimensions of contract — citizenship, employment, and marriage. She takes on the notion — now popular among liberal feminists — that contractarianism (libertarianism) has abolished patriarchy, and shows in great detail that (feudal) paternal patriarchy was not overthrown by capitalist contractarianism. It transformed “paternal” patriarchy into “fraternal” patriarchy. Making a metaphor of history, she shows that the fraternity of the male bourgeoisie established the contract over the dead body of the feudal father. They replaced the aristocracy with the citizen and the individual, but in every case, the citizen and the individual is presumed to be male.
An interesting instance of this is conservative opposition to the “paternal” state (ie, the state that meets social needs and extends its protections against abuse fo contract), and the fact that “legal equality” arguments with regard to gender have often proven more advantageous to men than women.
The sexual contract is — in a very real sense, though not a strictly legal one any more, with the abolition of couverture and the erosion through struggle of male sexual prerogatives in marriage (marital rape and a few elements of sexual coercion) — “an exchange of protection for obedience.” This unwitten contractual arrangement still informs the judiciary in many aspects of family law.
Legal contracts treat parties as equals, yes… but they are NOT in fact equals. That is precisely the trick. And the presumption of contract in the interpretation of law, that is rooted in the philosophical acceptance of society as a contract, and on the individual as posssessing her/his body as PROPERTY, is the basis of legitimacy for these laws and norms.
This is not misleading at all. It is contract itself which is misleading, and because it operates axiomatically, it remains hidden from view. In our discussion of Engels,there was much talk of father-right and mother-right as being part of the “conjectural history” of social development. Pateman says we have not studied sex-right. Men and women meet as mates before they meet as parents. In fact, maternity is a real and demonstrable thing. Women actually grow children within their bodies. Paternity is a social construct. The only participation of the male was in conception, and then only fleeting. But before there is maternity or paternity, there is sex. There is a relationship between man and woman, and between men and women. This conjugal right was described in great detail by every major contract theorist, and explicitly cited as a relations of male domination and female subordination… as a contract that exchanged protection for obedience.
It is the silence of the law — as you call it — on gender, on race, and on class that preserves and protects bourgeolis, white, and male power.
The requirement that a marriage contract be between a man and a woman is in fact a gendered contract. This same contract is refused between two men or two women. You’ll have to explain to me how no gender is involved in that. it is in fact the legal embodiment of compulsory heterosexuality.
The law on rape and its definition of consent — grounded in the contract — treats all sex that is not directly physically forced as if there is perfect equality. A woman who has sex with a pig husband out of fear of abandonment and consequent penury for her and her children, for example, is said to have consented according to the law. The whole notion of consent is constructed around a sexual contract, even though it is unwritten. and in every case it conceals the structural domination of men-as-a-class over women-as-a-class.
Rapist are outlaws, but the law sets the bar very high indeed to convict (especially, as you note, white men), and what is left out of this conversation is that rape is not convicted by aliens from the Planet Rape. Rape is committed by men. You can’t do a DNA test prior to rape and use it to say, this is a rapist. Rape is not committed by rapists — another species — but by men.
Of course the law doesn’t REQUIRE women to have sex when they don’t want to. Liberal law does not require anyone to do much beyond pay taxes. The essence of liberal law with regard to sex and class is in where it prohibits the intervention of the state into existing inequality. The law does not outlaw men’s social power over women, and int fact is prohibited from taking any remedy against it except in the most abstract way… by treating unequal as equal.
26 April 2006, 6:40 pmCharles Brown:
US law is male, white, and bourgeois precisely because socially-structured male power over women, socially-structured white power over non-white, and socially-structured bourgeois power over other classes are operational before the operation of the law.
^^^^^^
I would say that all these socially structured powers are structured AS law, not before it. Perhaps the main form of socially constructed power is as law. It’s not like there was white supremacy , and then they passed some racist laws. No, from the begining white supremacy came into the world AS law. Slavery was from its beginning, the law. If a slave ran away in 1310 in Portugal, the police went and captured the slave, and the slave was brought before the court. So, the central social construction of these powers is as law.
^^^^^^^
Liberal law accomplishes a remarkable feat in transforming inequality into equality, and subordination into freedom. It does this not merely through the fomral, legal contract, but through the conventions and presumptions that undergird liberal law, which are historically constituted out of the notion of “social contract.â€
^^^^
Sure liberal or bourgeois law does some of this. But the main action of liberal law is not as a trick. It’s “in your face”. Slaves are not equals under the main liberal laws. Woman and wives are not equal under liberal law. It’s right there in the old liberal laws - open INEQUALITY. Liberal law included things like the laws keeping slaves in bondage or treating women as chattel of their husbands. It treated relations between bourgeoisie and business men as equal, but they were more or less equal.
I don’t understand why the first thing to be pointed out is not how the law explicitly treated slaves and women as inferiors. There was no contracting equals cover. They were openly , blatantly treated as inferiors in their relationships with white men and slaveowners. The relation between a slave and a master is not a contract. It wasn’t treated as a contract by the courts.
The trick of inequality comes in in the wage-labor /capital relations, employment contract. There is a phony equality in that contract, yea.
^^^^^
Pateman’s research on this history is thorough and impeccable. This book is seen by many as nigh-on canonical, and with good reason. That’s why I am suggesting folks read it if they haven’t BEFORE they dive into any commentary. My hope was that there might be a discussion of this book.
In any case, reference to a sexual contract does NOT imply anything at all. Pateman’s claims are explicit, not implicit. And at the very root of her claim is the fact that contracts are not the least bit equal. They are a device to transform real inequality into legal (abstract) equality, and real subordination into legal (abstract) freedom.
She focuses on three dimensions of contract — citizenship, employment, and marriage. She takes on the notion — now popular among liberal feminists — that contractarianism (libertarianism) has abolished patriarchy, and shows in great detail that (feudal) paternal patriarchy was not overthrown by capitalist contractarianism. It transformed “paternal†patriarchy into “fraternal†patriarchy. Making a metaphor of history, she shows that the fraternity of the male bourgeoisie established the contract over the dead body of the feudal father. They replaced the aristocracy with the citizen and the individual, but in every case, the citizen and the individual is presumed to be male.
An interesting instance of this is conservative opposition to the “paternal†state (ie, the state that meets social needs and extends its protections against abuse fo contract), and the fact that “legal equality†arguments with regard to gender have often proven more advantageous to men than women.
^^^^
I don’t mind reading a book as a basis for discussion.
With respect to your mention of some of Pateman’s ideas, myself , I don’t subscribe to a liberal, contractarian or libertarian position on any of these issues. So, I already agree with her criticizing same. I certainly don’t subscribe to the notion that relaionships between the various categories of persons are or were equal.
As to the bourgeoisie establishing equality only among themselves, isn’t that patent ? The Declaration of Independence even says only “all MEN are created equal”. They are out and out saying that they are male supremacist. No trickery in that. Women couldn’t be in contracts because they were presumed “incompetent” , inferior, to men. The trickery was in the fact that not all men were treated equally.
Frankly, again it is the following that I don’t quite understand:
“And at the very root of her claim is the fact that contracts are not the least bit equal. They are a device to transform real inequality into legal (abstract) equality, and real subordination into legal (abstract) freedom.”
Some contracts _are_ equal. Those between white males of property. Yes, contracts between bosses and workers assume fake equality. Agree. But the relationships between masters and slaves were not teated as contracts. The law explicitly didn’t treat relations between wives and husbands as relations between equals. The relationship between husbands and vives was mmore a guardian-ward relationship or trustee-beneficiary, with the father of the woman as trustor.
So, I don’t get how the contract was used to try to portray the master-slave relationship as between equals. It wasn’t treated as a contract, even if some rare lying Southern intellectual tried to argue it was. The slave couldn’t go to court and sue the master for breach of promise !
^^^^^^^
The sexual contract is — in a very real sense, though not a strictly legal one any more, with the abolition of couverture and the erosion through struggle of male sexual prerogatives in marriage (marital rape and a few elements of sexual coercion) — “an exchange of protection for obedience.†This unwitten contractual arrangement still informs the judiciary in many aspects of family law.
^^^^
I’m trying to think how “an exchange of protection for obedience ” still informs the judiciary in many aspects of family law.” Such an exchange of promises is more Guardian -Ward than contract. But I really cannot think of any existing legal principle by which a court would order a wife to be obedient to her husband in the U.S.
The main area of law that I practice right now is family law. I can say emphatically that the law does not mandate that a wife obey her husband. It’s almost bizarre to say it. If a lawyer filed a lawsuit to enforce a wife’s obedience to her husband, the lawyer could be sanctioned for filing a frivilous lawsuit, not to mention the lawyer would be looked at like they were crazy.
^^^^^^
Legal contracts treat parties as equals, yes… but they are NOT in fact equals. That is precisely the trick. And the presumption of contract in the interpretation of law, that is rooted in the philosophical acceptance of society as a contract, and on the individual as posssessing her/his body as PROPERTY, is the basis of legitimacy for these laws and norms.
^^^^^^
Certainly, some contracts are not in fact equal. But not all contracts are not equal. Many contracts between two companies or business entities , the type of contract that most contracts are, are contracts between equals, no ?
The problem here is that the term “contract” is being extended to refer to a number of relationships that are not legal contracts. True enough those relationships are not between equals, but the relationships are not contracts either. Marriage today is not a contract in the legal sense ( that’s why I asked about its metaphorical usage). In the past marriage may have been treated like a contract to some extent. But even then it was probably a contract between the man and the father of the wife, who were more equal. The old marriage “contract’ was more a guardian - ward or trustee-beneficiary-trustor relationship.
The notion of Social Contract, Rousseau or whoever that was, is just not the same as a legal contract between individuals. Social contract is a philosophical fiction , truly, but it doesn’t even purport to be between equals since it is between individuals and Society, inherently and evident unequal entities.
^^^^^^
This is not misleading at all. It is contract itself which is misleading, and because it operates axiomatically, it remains hidden from view. In our discussion of Engels,there was much talk of father-right and mother-right as being part of the “conjectural history†of social development. Pateman says we have not studied sex-right. Men and women meet as mates before they meet as parents. In fact, maternity is a real and demonstrable thing. Women actually grow children within their bodies. Paternity is a social construct. The only participation of the male was in conception, and then only fleeting. But before there is maternity or paternity, there is sex. There is a relationship between man and woman, and between men and women. This conjugal right was described in great detail by every major contract theorist, and explicitly cited as a relations of male domination and female subordination… as a contract that exchanged protection for obedience.
^^^^^
OK well, yea I can see some theorists from the 1600s or so using the term “contract” as a relationship between unequals. But if they are explicitly saying it is “protection for obedience” then they are explicitly saying it is not between equals. If one party has to obey the other, they are , by definition, not equals.
Today, “protection for obedience” is sort of guardian-ward. I cannot see a court enforcing an agreement to exchange protection for obedience as a contract action.At any rate, a man can’t go into court on a marriage relationship and seek to have his wife obey him , believe me, that would be off the wall today.
^^^^^^
It is the silence of the law — as you call it — on gender, on race, and on class that preserves and protects bourgeolis, white, and male power.
The requirement that a marriage contract be between a man and a woman is in fact a gendered contract. This same contract is refused between two men or two women. You’ll have to explain to me how no gender is involved in that. it is in fact the legal embodiment of compulsory heterosexuality.
^^^
All I said is that it is sexed, not gendered. The law doesn’t require that the parties act different genders. It requires that they be opposite sexes. The parties can act as the same gender - the way I tried to portray that was crossdressing. Both parties could present themseles publically as of the same gender at the wedding or at the court house and the marriage wouldn’t be denied.
Yes, you are right. It is the legally enforced compulsory hetero_sex_ , not compulsory heterogender, _in marriage_. The law allows homogender in marriage. The law doesn’t even compel heterosex_uality_. Both parties can be practicing homosexuals, and that won’t bar a marriage. It only compels different sexual body parts.
The laws compulsion in marriage is as to sex, not gender.
^^^^
The law on rape and its definition of consent — grounded in the contract — treats all sex that is not directly physically forced as if there is perfect equality. A woman who has sex with a pig husband out of fear of abandonment and consequent penury for her and her children, for example, is said to have consented according to the law. The whole notion of consent is constructed around a sexual contract, even though it is unwritten. and in every case it conceals the structural domination of men-as-a-class over women-as-a-class.
Rapist are outlaws, but the law sets the bar very high indeed to convict (especially, as you note, white men), and what is left out of this conversation is that rape is not convicted by aliens from the Planet Rape. Rape is committed by men. You can’t do a DNA test prior to rape and use it to say, this is a rapist. Rape is not committed by rapists — another species — but by men.
^^^^^^^
As I say , I don’t care much about contract theory, except here it is being used as a tool of social analysis, so I’m just saying the concept of contract doesn’t work to analyze all these issues. Analyzing sexual acts between women and men as a contract or claiming that the law treats same as contracts, because of the issue of consent as a bar to rape, etc. causes confusion. That’s all I’m saying. It does not aid the social critique of male supremacy. For one thing, because the law doesn’t treat sexual acts as contracts. There is a whole independent and self-develooped law on rape.
For sex acts to be contracts (I’m talking about the modern concept of contract, not all the wild and willy things down through the years said to be contracts), there has to be reciprocal exchange, quid pro quo, this for that. What’s the quid pro quo ? “I’ll have sex with you if you have sex with me ” ?
The implication that by saying “rapists are outlaws” I in the least ignore, deny or forget that rapists are men is off. Of course, rapists are men . I said absolutely nothing to the contrary. I am in no need to be reminded of it. I’m just as militantly anti-rapist as anybody here. .
On the other hand, liberal law, bourgeois capitalist, and male supremacist as it is, outlaws rape. It is not silent on rape. The paternalistic aspect of male supremacy contains , contradictorily, very strong protections of females. There are even old laws still on the books which make seduction - a crime that can only be committed by men against women - a felony. There’s one still on the books in Michigan. Don’t forget there were lots of “Daddies” making the law to protect their daughters from men, as well as “pigs”. The bourgeois law is contradictory in this regard. The laws protecting white women from Black men are in the same vein.
^^^^^^^
Of course the law doesn’t REQUIRE women to have sex when they don’t want to. Liberal law does not require anyone to do much beyond pay taxes. The essence of liberal law with regard to sex and class is in where it prohibits the intervention of the state into existing inequality. The law does not outlaw men’s social power over women, and int fact is prohibited from taking any remedy against it except in the most abstract way… by treating unequal as equal.
^^^^^^
The liberal law used to intervene and create inequality, as between masters and slaves, husbands and wives. Women couldn’t own property _under the liberal law_ . So, the liberal law didn’t just come in later to an unequal situation. It was a main way that inequality was created in the first place.
As far as liberal feminists, of course they are wrong too, in claiming that contract concepts and practices have overthrewn male supremacy. All power to Pateman in arguing against them.
As to an explicit reference to a sexual contract, it is an explicit reference to the liberals using contract more abstractly than legal contract.
27 April 2006, 5:44 pmm.c.:
I’m not an expert on comparative European legal systems, but it hasn’t been that long since feudalism ruled. Not counting the Renaissance, the Declaration of Independence, the U.S. Constitution, the writings of Thomas Paine and the radical Jacobins during the French Revolution:
Napoleon instituted the Napoleonic Code/Civil Law modernization in western Europe. This generally allowed for commoners to have some rights in the previously Church & Nobility Landowner dominated Ruling Class. The Loiusiana legal system has traces of this as well as the English Common Law system which prevaled in Great Britain and its colonies. Napoleon also instituted the Metric System(which here in the U.S. we still haven’t adopted 200 years later) & established the nation museum of France, the Louvre; which englishman James Smithson copied when he gave the money for the Smithsonian in 1846. When he was in his first exile on Elba, Napoleon was tinkering with a pension system formula for retired French miners(time put in compared with retirement age, etc. He was a big micromanagerer like Jimmy Carter). Also France & Great Britain abolished slavery in the 1830’s by parliamentary decree(true, there were some disgruntled landowners but no massive civil war.
The point is, when Trotsky was writing about fascism where the 10th & 13th century with all its superstitions mingled with the 20th century and all its technological power(hint: the regimes of Mussolini & Hitler would have had no chance without wide scale radio broadcasts) he knew that the ghost of feudalism wasn’t that far in the background. Here in the U.S. we may have been slightly more tolerant but look what the European settlers did with the native American tribes…. Thomas Hobbes was probably right. Life is Nasty, Brutish, and Short. The golden rule is, those with the gold….
Cheers All
27 April 2006, 8:28 pmCharles Brown:
Oops, I guess they did abolish these old laws, but they left the old wording from seduction in. Also, notice the concept of contract seems to come in as “contract TO marry”. So, the actual marriage is not a contract, but the commitment to marry was treated like a contract, perhaps. So, basically one couldn’t back out once promising without being liable for a contract action. I don’t know what the remedy was, but probably money damages, not specific performance, i.e. the breaching party wasn’t required to marry , but to pay money deamges, maybe.
CB
REVISED JUDICATURE ACT OF 1961 (EXCERPT)
Act 236 of 1961
600.2901 Actions abolished; alienation of affections, criminal conversation, seduction, and breach of contract to marry.
Sec. 2901.
The following causes of action are abolished:
(1) alienation of the affections of any person, animal, or thing capable of feeling affection, whatsoever;
(2) criminal conversation;
(3) seduction of any person of the age of 18 years or more;
(4) breach of contract to marry.
REVISED JUDICATURE ACT OF 1961 (EXCERPT)
Act 236 of 1961
600.2910 Action for seduction.
Sec. 2910.
Actions for seduction are subject to the following provisions and limitations:
(1) In any action for seduction it is necessary to allege and prove that the female seduced was not 18 years of age or over at the time of the seduction.
(2) In any action for seduction it is not necessary to allege or prove any loss of services in consequence of the seduction.
(3) An action for seduction may be brought by the seduced female’s mother, father, or guardian.
History: 1961, Act 236, Eff. Jan. 1, 1963
THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
750.164 Desertion following marriage to escape prosecution.
Sec. 164.
Desertion following marriage to escape prosecution for rape, etc.—Any man or boy, who being the father of a child born out of wedlock, shall marry any woman or girl for the purpose of escaping prosecution therefor, and any man or boy who shall marry any woman or girl for the purpose of escaping prosecution for rape or seduction, and shall afterwards desert her without good cause, shall be guilty of a felony: Provided, That no prosecution shall be brought under this section after 5 years from the date of the marriage.
THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
750.532 Seduction; punishment.
Sec. 532.
Punishment—Any man who shall seduce and debauch any unmarried woman shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than 2,500 dollars; but no prosecution shall be commenced under this section after 1 year from the time of committing the offense.
28 April 2006, 3:52 pmm.c.:
One point I want to make is that anger is sometimes useful but not to the point that it makes people think irrationally or re-active in un-logical ways.
Thomas Paine is a great personality: He was a self educated semi-loser from a working class English family who did not have a college education. He met Ben Franklin who gave him a letter of recommendation to move to the Colonies. (Franklin was a paradox himself: self made wealthy business person who was the unlikelist revolutionary; his son was royal postmaster or lt. gov. of Pennslvyania.)
In the war, Paine was corralled by Washington to write his winter soldier phamphlets although instinctively Washington was a closet Tory( with his A.D.C.(aide de camp) Hamilton{big money bags himself} and Paine had become good personal friends with Jefferson. Even Federalist John Adams thought Paine one of the most indespensable of the Revolutionaries.
If you look closely, Paine was the first or one of the first prominent voices in the call to end slavery, the end to monarchy, freedom of organized religion, the equal sufferage of women, the end of the monied interests, etc. as well as an opponent of Edmund Burke and a supporter of the French patriots.
Jefferson thought so highly of him that when he was president and Paine was either in prison or house arrest in France, T.J. ordered a U.S. heavy frigate to France to escort Paine to the States. He stayed in the white house for a week before Jeffersons political opponnents raised hell( Paine had just published the Age of Reason ripping into religion & organized stupidity) before he moved on to new york.
Maybe the fruit doesn’t fall very far….
28 April 2006, 11:40 pmStan:
Charles,
You are reducing the question of contract, as Pateman studies it, to legal contracts. The law is only the tip of the social iceberg.
Pateman, following Locke, Hobbes, Hegal, Marx, Rousseau, Kant, and many others, who have looked at this issue, is looking at “contract” as a philospoohical-ideological construct.
29 April 2006, 11:12 amm.c.:
A little continuation on my tangent about early U.S./French/U.K. relations: Without the French support in the American Revolution it is very doubtful that the British would have capitulated. The British & French were fighting a major war at the time(maybe the first world war) and the French supplied the colonists with money/weapons and soldiers(personified in La Fayette as well as others)
During the seige of Yorktown, the Royal Navy sent a large battle fleet from New York under the command of Rear Adm. Thomas Graves to reinforce Corwallis. A large French fleet under the command of Rear Adm. de Grasse met them off the coast of Virginia in the Battle of the Chesapeake. Although the battle was a draw, the British never got to Yorktown and Cornwallis surrendered the next month. Many ages ago I wrote a DAR essay about this battle. The colonial navy of a few privateers could not have achieved this.
Also the Univ. of Paris/Sorbonne was the model for Oxford when in 1167 King Henry II of England forbade English students from studying in France. Cambridge was founded by Oxford dissenters; Harvard College in Massachusetts was founded by Cambridge Puritans; Yale founded by Harvard Puritans who thought Harvard wasn’t Fundamentalist enough; and Princeton founded by Yale Presbyterian Puritan dissenters who thought that Yale was too Fundamentalist.
True, the U.S. helped rescue France in both World Wars,
1 May 2006, 5:15 pmbut ask 100 Americans who Admiral de Grasse was & what significance the Univ. of Paris contributed to higher education in the English speaking world & I bet at least 90 of them would have no clue. There I rest my case!
Charles Brown:
Yes, that’s why I asked if “contract” was being used metaphorically.
1 May 2006, 5:37 pmCharles Brown:
Social contract
From Wikipedia, the free encyclopedia
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This article deals with the philosophical and political concept of the social contract, and not with juridicial contract theory. Specific government initiatives using the term “Social Contract” in their name are listed in the article Social Contract (disambiguation).
Social contract theory (or contractarianism) is a concept used in philosophy, political science and sociology to denote an implicit agreement within a state regarding the rights and responsibilities of the state and its citizens, or more generally a similar concord between a group and its members, or between individuals. All members within a society are assumed to agree to the terms of the social contract by their choice to stay within the society without violating the contract; such violation would signify a problematic attempt to return to the state of nature. It has been often noted, indeed, that social contract theories relied on a specific anthropological conception of man as either “good” or “evil”. Thomas Hobbes (1651), John Locke (1689) and Jean-Jacques Rousseau (1762) are the most famous philosophers of contractarianism, which is the theoretical groundwork of democracy. It is also one of a few competing theoretical groundworks of liberalism, but Rousseau’s social contract is often seen as conflicting with classical liberalism which stresses individualism and rejects subordination of individual liberty to the “general will” of the community.[1]
Contents
* 1 Overview
* 1.1 State of nature & social contract
* 1.2 A fictional state of nature?
* 1.3 Violations of the contract
* 2 History
* 2.1 Classical thought
* 2.2 Thomas Hobbes’s Leviathan (1651)
* 2.3 John Locke’s Two Treatises of Government (1689)
* 2.4 Jean-Jacques Rousseau Du Contrat social (1762)
* 2.5 Pierre-Joseph Proudhon’s individualist social contract (1851)
* 2.6 John Rawls’s Theory of Justice (1971)
* 2.7 Philip Pettit’s conception of republicanism (1997)
* 3 Criticism
* 3.1 Social contract is a violation of contract theory
* 3.2 Ronald Dworkin’s Law’s Empire (1986)
* 3.3 Criticisms of natural right
* 4 Endnotes
* 5 See also
* 6 Notes
* 7 References
* 8 External links
[edit]
Overview
[edit]
State of nature & social contract
The social contract, as a political theory, explains the justification and purpose of the state and of human rights. According to Hobbes’ canonical theory, the essence is as follows: Without society, we would live in a state of nature, where we each have unlimited natural freedoms. The downside of this general autonomy is that it includes the “right to all things” and thus the freedom to harm all who threaten one’s own self-preservation; there are no positive rights, only laws of nature and an endless “war of all against all” (Bellum omnium contra omnes, Hobbes 1651). To avoid this, we jointly agree to an implicit social contract by which we each gain civil rights in return for accepting the obligation to honor the rights of others, giving up some freedoms to do so. The figurehead of the society we create, representing our joint interests as members and formed by the delegation of our power, is the sovereign state.
[edit]
A fictional state of nature?
The emergence of the social contract from the state of nature is often explained in terms of just-so stories whose goal is to show the logical basis of rights rather than attempting historical accuracy. Rousseau’s 1754 Discourse on the Origin and Basis of Inequality Among Men is more a fictional account of what has passed than a realistic description of what happened. However, it is also true that the ambiguity persists, and that Hobbes’ polemic conception of the state of nature (opposed to Rousseau’s irenical conception of it) approach it from the realist description of civil war - the Leviathan may be read as an attempt to solve the problems raised by the English Civil War (1642-1651).
[edit]
Violations of the contract
The social contract and the civil rights it gives us are neither “natural” nor permanently fixed. Rather, the contract itself is the means towards an end — the benefit of all — and, according to some philosophers such as Locke or Rousseau, is only legitimate to the extent that it meets the general interest. Therefore, when failings are found in the contract, we renegotiate to change the terms, using methods such as elections and legislature; Locke theorized the right of rebellion in case of the contract leading to tyranny.
Since rights come from agreeing to the contract, those who simply choose not to fulfill their contractual obligations, such as by committing crimes, risk losing some of their rights, and the rest of society can be expected to protect itself against the actions of such outlaws. To be a member of society is to accept responsibility for following its rules, along with the threat of punishment for violating them. Most of us are comfortable with laws punishing behavior that harms people because we are concerned about others harming us and don’t plan on harming others. In this way, society works by “mutual coercion, mutually agreed upon” (Hardin 1968). [1] However, philosophers such as Michel Foucault and Gilles Deleuze have argued that this is a repressive conception, declaring that we are all “potential criminals”. Indeed, Foucault criticized the concept of “criminal” (”délinquant”, meaning professional outlaw), and pointed out the relationship between crime, class struggle and insanity which, as in crimes of passion, can burst out suddenly — thus explaining the motto “we are all virtual criminals”.
Some rights are defined in term of the negative obligation they impose on others. For example, your basic property rights entail that everyone else refrain from taking what is yours. Rights can also involve positive obligations, such as the right to have stolen property returned to you, which obligates others to give you back what’s yours when they find it in the hands of others (or, in modern society, to send the police in to do it). Theorists argue that a combination of positive and negative rights is necessary to create an enforceable contract that protects our interests.
[edit]
History
[edit]
Classical thought
Social contract ideas go back to the Greeks; Plato has Socrates make a case for social contract ideas in Crito but criticizes them in The Republic. Epicurus explicitly endorsed social contract ideas; the last fourth of his Principal Doctrines state that justice comes from agreement not to harm each other , and in laws being made for mutual advantage (pleasure, happiness), and that laws which are no longer advantageous are no longer just .
Most European intellectuals before 1900 would have had a classical education, and were typically familiar with Plato, if not Epicurus.
[edit]
Thomas Hobbes’s Leviathan (1651)
The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes (1588-1679), who contended that people in a state of nature ceded their individual rights to create sovereignty, retained by the state, in return for their protection and a more functional society, so social contract evolves out of pragmatic self-interest. Hobbes named the state Leviathan, thus pointing to the artifice involved in the social contract. Other philosophies conceived by Hobbes is that man were innately born with no morals or understanding of good. When observing the Bible, one can find that the name of Satan’s serpent is Leviathan, thus the naming of his book. His ideas were greatly criticized due to their morbidity and anti-Christian ideals.
[edit]
John Locke’s Two Treatises of Government (1689)
John Locke’s Two Treatises of Government differs from Hobbes’ conception of an absolute monarchy by arguing in favor of a right of rebellion against tyranny, believing that people contracted with one another for a particular kind of government, and that they could modify or even abolish the government. For this reason, he is considered to be one of the main thinkers of liberalism. Locke’s social contract theory was intertwined with his understanding of an innate, essential human rationality constituting ‘natural law’, explained in An Essay Concerning Human Understanding. John Locke is often compared to his contemporary, Thomas Hobbes, and their main differences stands as one of the most important of Locke’s beliefs. Locke believed, in contrast to Hobbes, that man is naturally good, and is not solely driven by greed and evil.
[edit]
Jean-Jacques Rousseau Du Contrat social (1762)
Jean-Jacques Rousseau (1712-1778), in his influential 1762 treatise The Social Contract, Or Principles of Political Right, outlined a different version of contract theory, based on the conception of popular sovereignty, defined as indivisible and inalienable - this last trait explaining Rousseau’s aversion for representative democracy and his advocacy of direct democracy. Rousseau’s theory has many similarities with the individualist Lockean liberal tradition, but also departs from it on many significant points. For example, his theory of popular sovereignty includes a conception of a “general will”, which is more than the simple sum of individual wills: it is thus collectivist or holistic, rather than individualist. As an individual, Rousseau argues, the subject can be egoist and decide that his personal interest should override the collective interest. However, as part of a collective body, the individual subject puts aside his egoism to create a “general will”, which is popular sovereignty itself. Popular sovereignty thus decides only what is good for society as a whole:
The heart of the idea of the social contract may be stated simply: Each of us places his person and authority under the supreme direction of the general will, and the group receives each individual as an indivisible part of the whole…
Hence, Rousseau’s famous sentence: “We shall force them to be free” must be understood as such: since individual subjects resign their free will, as in Hobbes’s theory, to form popular sovereignty; besides, since the indivisible and inalienable popular sovereignty decides what is good for the whole, then if an individual lapses back into his ordinary egoism, he shall be forced to listen to what they decided as a member of the collectivity.
Rousseau’s version of the social contract is the one most often associated with the term “social contract” itself. His theories had an influence on both the 1789 French Revolution and the subsequent formation of the socialist movement. Furthermore, one can note that, as in Locke or Hobbes’ theories, Rousseau gave particular attention to subjective and individual questions, as in his Confessions for example.
[edit]
Pierre-Joseph Proudhon’s individualist social contract (1851)
While Rousseau’s social contract is based on popular sovereignty and not on individual sovereignty, there are other theories espoused by individualists, libertarians and anarchists, which do not involve agreeing to anything more than negative rights and creates only a limited state, if at all. This is related to the non-aggression principle.
Pierre-Joseph Proudhon advocated a conception of social contract which didn’t involve an individual surrendering sovereignty to others. According to him, the social contract was not between individuals and the state, but rather between individuals themselves refraining from coercing or governing each other, each one maintaining complete sovereignty upon oneself:
“What really is the Social Contract? An agreement of the citizen with the government? No, that would mean but the continuation of [Rousseau’s] idea. The social contract is an agreement of man with man; an agreement from which must result what we call society. In this, the notion of commutative justice, first brought forward by the primitive fact of exchange, …is substituted for that of distributive justice … Translating these words, contract, commutative justice, which are the language of the law, into the language of business, and you have commerce, that is to say, in its highest significance, the act by which man and man declare themselves essentially producers, and abdicate all pretension to govern each other”
Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth Century (1851).
This idea of a social contract that excludes intervention by the state in individual liberty was also followed by other individualist anarchists, such as Benjamin Tucker (an enthusiast of Proudhon’s writings) who said “Mankind is approaching the real social contract, which is not, as Rousseau thought, the origin of society, but rather the outcome of a long social experience, the fruit of its follies and disasters. It is obvious that this contract, this social law, developed to its perfection, excludes all aggression, all violation of equality and liberty, all invasion of every kind.” (Liberty, VII, 1890)
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John Rawls’s Theory of Justice (1971)
John Rawls (1921-2002) proposed a contractarian approach that has a decidedly Kantian flavour, in A Theory of Justice (1971), whereby rational people in a hypothetical “original position,” setting aside their individual preferences and capacities under a “veil of ignorance,” would agree to certain general principles of justice. This idea is also used as a game-theoretical formalization of the notion of fairness.
[edit]
Philip Pettit’s conception of republicanism (1997)
Philip Pettit has argued, in Republicanism: A Theory of Freedom and Government (1997), that the theory of social contract, classically based on the consent of the governed (as it is assumed that the contract is valid as long as the people consent to being governed by its representatives, who exercise sovereignty), should be modified, in order avoid dispute. Instead of arguing that an explicit consent, which can always be manufactured, should justify the validity of social contract, Philip Pettit argues that the absence of an effective rebellion against the contract is the only legitimacy of it, in much the same way that Karl Popper argues that the criteria of scientific work is its falsifiability.
[edit]
Criticism
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Social contract is a violation of contract theory
Normally, a contract is not presumed valid unless all parties agree to it voluntarily, that is, no one has been pressured under the threat of physical force to enter into it. Lysander Spooner, a staunch supporter of a right of contract between individuals, argues that a supposed social contract (of the Rousseauean sort) cannot be used to justify governmental actions such as taxation, because government will initiate force against anyone who does not wish to enter into such a contract. As a result, he maintains that such an agreement is not voluntary and therefore cannot be considered a legitimate contract at all. It should be noted, however, that juridical contract theory does not address the same issues as the philosophical concept of social contract.
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Ronald Dworkin’s Law’s Empire (1986)
In his 1986 book Law’s Empire, Ronald Dworkin touches briefly on social contract theory, firstly distinguishing between the use of social contract theory in an ethical sense, to establish the character or content of justice (such as John Rawls’ A Theory of Justice) and its use in a jurisprudential sense as a basis for legitimate government.
Dworkin argues that if every citizen were a party to an actual, historical agreement to accept and obey political decisions in the way his community’s political decisions are in fact taken, then the historical fact of agreement would provide at least a good prima facie case for coercion even in ordinary politics:
So some political philosophers have been tempted to say that we have in fact agreed to the social contract of that kind tacitly, by just not emigrating when we reach the age of consent. But no one can argue that very long with a straight face. Consent cannot be binding on people, in the way this argument requires, unless it is given more freely, and with more genuine alternate choice, than just by declining to build a life from nothing under a foreign flag. And even if the consent were genuine, the argument would fail as an argument for legitimacy, because a person leaves one sovereign only to join another; he has no choice to be free from sovereigns altogether. [2]
A typical counterargument is that the choice is not limited to tacit consent to the status quo vs. expatriation, but also includes accepting the contract, then working to alter the parts that are disagreed with, as by participating in the political process.
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Criticisms of natural right
Contractualism is based on a philosophy of rights being agreed to in order to further our interests, which is a form of individualism: each individual subject is accorded individual rights, which may or may not be inalienable, and form the basis of civil rights, as in the 1789 Declaration of the Rights of Man and of the Citizen. It must be underlined, however, as Hannah Arendt did on her book on imperialism, that the 1789 Declarations, in this agreeing with the social contract theory, bases the natural rights of the human-being on the civil rights of the citizen, instead of doing the reverse as the contractualist theory pretends to do [3] . However, this individualist and liberal approach has been criticized since the 19th century by thinkers such as Marx, Nietzsche or Freud, and afterward by structuralism and post-structuralism thinkers, such as Lacan, Althusser, Foucault, Deleuze or Derrida. Several of those philosophers have attempted, in a spinozist inspiration, of thinking some sort of transindividuality which would precede the division between individual subject and collective subject (i.e. society).
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Endnotes
* ↑ See Ronald Dworkin, Law’s Empire, Fontana Press, 1986, p192-3.
* ↑ Hannah Arendt’s book on Imperialism was published in 1951 in The Origins of Totalitarianism, but was written apart. This interpretation by Hannah Arendt of natural rights being based on civil rights founds its illustration with the growing number of refugees and stateless people. Giorgio Agamben would further explore it, with his concept of an Homo sacer: “the so-called sacred and inalienable rights of man prove to be completely unprotected at the very moment it is no longer possible to characterize them as rights of the citizens of a state” (Agamben, 2005)
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See also
* Contract
* Debian Social Contract
* Mayflower Compact
* Kohlberg’s stages of moral development
* Right of rebellion
* Social capital
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Notes
1. ^ Sturgis, Amy H. The Rise, Decline, and Reemergence of Classical Liberalism , Lockesmith Institute, 1994.
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References
* Dworkin, Ronald. Law’s Empire, Fontana Press, 1986,
* Hobbes, Thomas. Leviathan (1651)
* Locke, John. Two Treatises on Government (1689)
* Pettit, Philip. Republicanism: A Theory of Freedom and Government, NY: Oxford U.P., 1997, ISBN 0198290837 - Oxford: Clarendon Press, 1997
* Rawls, John. A Theory of Justice (1971)
* Robinson, Dave & Groves, Judy (2003). Introducing Political Philosophy. Icon Books. ISBN 1-84046-450-X.
* Rousseau, Jean-Jacques. The Social Contract, or Principles of Political Right (1762)
* Hardin, Garrett. The Tragedy of the Commons (1968)
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External links
* Stanford Encyclopedia of Philosophy:
* Contractarianism
* Contemporary Approaches to the Social Contract
* Internet Encyclopedia of Philosophy
* Social contract theory
* The Contractarian Theory of Morals:FAQ
* Ebook: THE SOCIAL CONTRACT by Rousseau
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Philosophy Portal
Retrieved from “http://en.wikipedia.org/wiki/Social_contract”
Categories: Political philosophy | Philosophical concepts | Sociology
1 May 2006, 5:42 pmCharles Brown:
——————————————————————————–
From: Valeria B
Subject: Judge Mablean Divorces Divorce Court
Truly appalling!
By EUR Web
3 May 2006, 8:17 am> Monday, April 10, 2006
>
> Fox demanded that hairstyle and salary stay the same.
>
>
>
> At a press conference last week to explain her reasons for leaving the
> syndicated Fox Television series “Divorce Court,” Judge Mablean
Ephriam
> said the syndicator was unwilling to pay her as much as the other TV
> judges, and had the nerve to demand that her hairdo not change for the
> entire season.
>
>
>
> “There will be no changes in the current hairstyle to avoid time
> consuming issues regarding her hair,” Fox was said to have stated
during
> its negotiations - a demand Ephriam found to be very offensive and
> racially insensitive.
>
>
>
> Here were her words at the press conference:
>
>
>
> “The requirement also comes very close to a violation, if it does not
in
> fact violate, the Fair Employment Practices Act. An employer cannot
> demand one to wear a particular hairstyle unless it directly affects or
> impacts the employee’s ability to perform his or her employment duties.
> My hairstyle does not meet this criteria, it is, however, a racial and
> ethnic issue.
>
>
>
> “Suddenly, after seven years of a show that has run neck- in- neck
with
> the other top rated court shows, why is my hair an issue. Why, I ask?
> Because of my ethnicity - African American, Black, Negro, whatever term
> you prefer to use. Because of my genetics (short, curly, hair) which
> requires the use of chemicals and/or a hot pressing comb to straighten
> and curlers to style. It cannot be styled by a wash, blow dry and set.
> Therefore, in Fox’s opinion, it is a time consuming issue.
>
>
>
> “I wore a short hairstyle which was my own hair. Due to a
> misapplication of a chemical process, I lost a substantial amount of
> hair in season six. Out of my desire to maintain continuity, and the
> image I had created (for the last five years), I elected to wear a wig
> last year. Had Fox asked me to maintain a short hairstyle for
> continuity and for image, it would have been a different issue. But they
> are saying I must continue to wear the wig because that would expedite
> the hair styling process. However, my hair has now grown. I had not yet
> decided what hairstyle I would wear for season eight. If I were to
> accept their demands, I would have been unable to make that
decision.”
>
>
>
>
> Ephriam also said the salary Fox offered her for season eight was
> substantially less than all of the other court show judges.
>
>
>
> “Though I made several offers of reduction from my initial demand, in
an
> effort to reach a settlement, Fox remained firm in its ‘low-ball offer’
> and finally, its ‘take-or-leave it offer’ which contained a very small
> increase from its initial position, coupled with some other unreasonable
> demands,” she said. “Fox took the position that in order to
receive this
> small increase (which was still unequal); there would be ’significant
> production changes.’”
>
>
>
> Among them:
>
>
>
> * Tape seven shows per day (sometimes eight), instead of six. “I
> indicated I could not do this effectively and produce quality shows,”
> she explains.
>
>
>
> * No vacation time during tape schedule. She notes: “My national
church
> convocation in November is the only vacation I take during tape season.
> Will I now not be allowed to observe my religious practice? This was
> non-negotiable for me. I believe this infringes on my freedom of
> religious belief? The other times-off from taping were promotional
> appearances… at the request of civic groups, schools, churches, women
> groups, and non-profit organizations such as the Tom Joyner Foundation
> Fantastic Voyage, which benefits Historically Black Colleges and
> Universities (HBCU’s).
>
>
>
> Ephraim continued: “There were several other issues related to the
tape
> schedule and taping itself which were unfair to the staff and crew of
> ‘Divorce Court,’ as well as me. For instance, ‘we no longer will be able
> to pay for the holiday luncheon’ stated Fox. ‘Divorce Court’ has one
> catered meal the entire season, the Christmas holiday luncheon, before
> hiatus. This would be cut out if I were to be paid the small increase.
> This would not be fair to the staff and crew.
>
>
>
> “Not only have I been impacted but my personal assistant Princess and
my
> daughter, Darlene Allen. Darlene was head of the wardrobe department.
> She too now has been terminated.”
>
>
>
> In closing, Ephriam thanks Fox “for the last seven years, for the
> opportunity, for the exposure. I also thank Fox for refusing to pay me
> what I know I was worth. It set me free to ascend to higher ground. To
> go beyond before. I firmly believe that God has a better plan for my
> life.”