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Abstract. This paper explores two feminist contributions to the analysis of the
social contract tradition, comparing the political philosophy of Carole Pateman
with the moral theory of Jean Hampton, to ask two questions. First, which points
must feminists continue to argue in their critique of the social contract tradition
today? The second question is: Can feminists actually draw anything from the
social contract tradition today? It argues that Pateman’s critique of contractari-
anism continues to be useful when read in the context of her analysis of “self-
ownership” and subordination rather than as a rewriting of the social contract.
Hampton’s deployment of a Kantian test for the failure of respect for personhood
within domestic (and other) relationships does not undermine Pateman’s position.
Consideration of how such an ideal can be understood as potentially compatible
with Pateman’s perspective raises issues about the radical potential within claims
for equal respect for personhood. In Hampton’s work, widespread “test failure”
can be used to indicate that political action rather than moral analysis is required.
Hampton assumes that those employing the test are able to abstract themselves
sufficiently from their current position to imagine what it would be to be treated
as a person. It is argued that this “moral test” should be envisaged as being asked
in concert with others, at which point it has the potential to become political
action.
The theoretical maneuvers of the famous theorists of an original contract, and the
continuing silence about their female critics, have been vital for the refusal of
political theorists to admit that men’s power over women is a political problem.
But modern patriarchal theory required the premise of natural liberty and
equality, which gave an opening for feminist arguments, that was then impos-
sible to close. (Pateman 1998, 382)
Social contract theory, with its image of free and equal persons creating a
society based upon rules that all can consent to, has been a major influence
on political theory and ethics, from the Ancient Greeks and in particular
from the seventeenth century through to today. These theories have varied
widely in all aspects of the envisaged contract: which parties take part, the
aim of the parties, and the role that the (hypothetical or real) contract plays
© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden 02148, USA.
Feminist Perspectives on Social Contract Theory 403
1
These are mainly critical of the social contract; see, for example, the seminal Brennan and
Pateman 1979 along with Pateman 1988, Okin 1989, Held 1987. However, some use contrac-
tarianism: Hampton 1991a, 2002.
2
Coole summarises women’s exclusion from citizenship in the social contract tradition and
then considers the way in which it can be viewed as a “gendered discourse,” i.e., that as a
body of work it favours men. This draws upon psychoanalytic and poststructuralist theory,
so, for example, Hobbes’ individualism is linked with a (male) need to separate from the
mother. There is insufficient space in this paper to explain why such analysis is reductionist
and unconvincing. Pateman’s work is discussed in the context of Pateman 2002 and her
critique of “property in the person” which is coherent without the need to rely upon
psychoanalysis.
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404 Janice Richardson
radically alters the theoretical framework in various ways. One of the ways
in which this occurs is that feminist readings of the social contract continue
to open up questions about the ways in which both “the individual” and
freedom are conceived. These changes will be traced within the different
theoretical perspectives discussed.
Thomas Hobbes’ view of freedom marked a major split from the
previous civic republican tradition. In Leviathan (1651), the first full expo-
sition and defence of the social contract theory,3 he described freedom in
the following terms:
Pateman’s analysis forces us to focus upon the way in which the liberal
ideals of freedom and equality have been violated by the “sexual contract.”
3
There were ancient and medieval antecedents, most notably: Plato 2004; Aquinas 1965, 145.
However, it is a strain to describe their references to contract as social contract theories.
Salkever 1974 has argued that in pre-modern times political life was “conceived as a problem
of moral and intellectual virtue [. . .] [not] as a problem of obligation and legitimacy” (cited
and discussed in Pateman 1985, 98–102). For details of other theorists who pre-date Hobbes
and mention contract see Boucher and Kelly 1994, 1–34.
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Feminist Perspectives on Social Contract Theory 405
Feminist scholars have undertaken some very revealing and exciting work on the
classic texts of political theory, but little attention has been paid to Hobbes, whose
writings are of fundamental importance for an understanding of patriarchy as male
right [. . .]. (Pateman 1991, 54)
Hobbes was too revealing about civil society. The political character of the conjugal
right was expertly concealed in Locke’s6 separation of what he called “paternal”
power from political power and, ever since, most political theorists, whatever their
views about other forms of subordination, have accepted that powers of husbands
derive from nature and, hence are not political. (Ibid., 69)
Part of Hobbes’ importance, for Pateman, stems from his position that
women were equal with men in a state of nature as “the weakest has
strength enough to kill the strongest” (Hobbes 1994, 74). As she points out,
4
Hobbes 1994, 77: “It may peradventure be thought there was never such a time nor
condition of war as this, and I believe it was never generally so, over all the world.” (He then
references Cain and Abel in the 1668 Latin version of Leviathan along with some areas of
America but his argument does not rely upon the veracity of these alleged possible examples.)
5
For the argument that this “scientific” argument was rejected in favour of rhetoric in
Leviathan because Hobbes came to view people as less motivated by the force of reason than
by self-interest, see Skinner 1997.
6
Hobbes’ Leviathan was published in 1651 and Locke’s Two Treaties of Government was
published later in 1689 (Locke 1999). Pateman 1991 argues that Locke’s view that women’s
oppression occurs naturally came to obscure the position that she attributes to Hobbes, that
women’s oppression is political.
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406 Janice Richardson
this view of women’s equality was then covered over by Locke and later
social contractarians, who viewed women’s subordination as natural.7 The
fact that, in Hobbes’ England, the existence of the doctrine of coverture
meant that the marriage contract was—as Pateman (1988, 118) illustrates—
effectively a civil slave contract prompts Pateman to ask an important
question: Why should women (who are free and equal in Hobbes’ descrip-
tion of a state of nature) consent to form a civil society in which they are
subordinate to men? Pateman (ibid., 77–115) then reads further into the
social contract to argue that what was hidden in this fiction was the
“sexual contract” in which women were subordinated to individual men.
Once the social contract has been formed, the sovereign would enforce all
contracts, including the marriage contract, which formed a framework for
women’s subordination. Pateman (ibid.) reads this alongside Freud’s Totem
and Taboo (1950) in which Freud describes how the primal father is killed
in order to allow the brothers sexual access to women. Pateman therefore
views Hobbes as developing a new form of patriarchy in which there is a
fraternal contract, such that individual men have control over (and sexual
access to) women through the marriage contract.
As already indicated, this paper will not explore any psychoanalytic
rewriting of Hobbes’ fiction nor other re-workings of the story that suggest
that women are already captured in the state of nature and therefore do not
enter into the social contract.8 Debates that focus upon Pateman’s rewriting
of the social contract are in danger of taking the fiction of the social
contract too seriously. More importantly, they miss what is both central and
important in Pateman’s work: her focus upon political freedom.
Pateman’s move is to look at the development of the marriage contract
as well as employment contracts and the social contract. She asks how it
was that Hobbes’ social contract theory, which made the radical assump-
tion that men and women were originally free and equal, could then be
used as a justification for subordination. Her answer is that such subor-
dination is justified by means of the fiction of the “property in the person”
(otherwise known as “possessive individualism” or “self-ownership”),
which denotes the legal fiction that we own our abilities and our freedom
and that we can alienate these, at least in part (Pateman 2002). The image
of a possessive individual who is deemed to have the ability to “give up”
his/her freedom, as part of a contract, is precisely the vision Hobbes (1994,
81) draws upon to describe the formation of the social contract.9 There is
7
For a view, which accepts many of Pateman’s points but is more supportive of Locke, see
Schochet 1998, 220–42.
8
Pateman 1988 elicited a number of debates around the credibility of her re-writing of
Hobbes’ story; see, for example: Curley’s annotation in Hobbes 1994, 78; Van Mill 2001,
198–299.
9
For extended arguments linking Hobbes’ image of the individual with “possessive indi-
vidualism” see also Macpherson 1962, 10–106.
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Feminist Perspectives on Social Contract Theory 407
10
For such an historical analysis see Deakin 2002, 177–96.
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408 Janice Richardson
11
Pateman 1996 describes the era of the traditional housewife as being between 1840–1970 in
the West.
12
See, for example, Dean 1992 and Schochet 1998.
© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 3
Feminist Perspectives on Social Contract Theory 409
13
There are writers who have taken up Pateman’s work as the basis of historical analysis. See,
for example, Norberg 1993.
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410 Janice Richardson
Well it depends upon the situation. If you have responsibility with some body else
(sic) then you should keep it to a certain extent, but to the extent that it is really
going to hurt you or stop you from doing something that you really, really want,
then I think that maybe you should put yourself first. But if it is your responsibility
to someone really close to you, you’ve just got to decide in that situation which is
more important, yourself or that person, and like I said, it really depends upon
what type of person you are and how you feel about the other person or persons
involved. (Gilligan 1982, 36)
14
For Hampton’s work on moral philosophy see, for example, Hampton (1991a, 1991b, 1993,
1994, 1997, 1998, 2002).
15
For attempts to develop an ethics of care in terms of political theory: Sevenhuijsen 1998 and
Tronto 1993. For an overview of Gilligan’s influence on political philosophy see Kymlicka
2002, 398–420.
© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 3
Feminist Perspectives on Social Contract Theory 411
but in place of this “[p]rovidence has put in their breast kind and
benevolent sensations, a fine feeling of propriety, and a complaisant soul”
(Kant 1960, 81). Whilst maintaining the same gender divide as Kant,
Gilligan aims to revalue the position attributed to women. Proponents of
the ethics of care have been critical of contractarian theories and their
arguments will be considered in the next section. Hampton’s “Feminist
Contractarianism” can be understood as a contractarian response to the
attitudes of Jake and Amy discussed by Gilligan.
Whilst it is easy to be critical of Jake’s stress upon the need to pursue his
own interests at the expense of others, Hampton recognises that there are
problems with Amy’s position. Amy is not even clear that she should put
her interests before another person’s even when she risks being hurt or
losing something she really wants. In this case, she states that “maybe you
should put yourself first” (Gilligan 1982, 36, italics added). If she goes on
to live with Jake it will be clear whose wishes will dominate. Hampton
outlines these depressing stereotypes to make the argument that feminists
need a theory of justice. This should be employed to illustrate, not simply
when we should help others but also, importantly, when we should look
after ourselves and say no to others; the need for self-interest is an ethical
concern (see also Hampton 1997). At this point Hampton shares Pateman’s
political concern as to who has a voice in any relationship.
How is Amy to avoid exploitation? Pateman eschews the abstraction of
Rawlsian ethics to look at the social structure. Hampton, in contrast, goes
on to argue for an ethics that, like Rawls, draws heavily from Kant.
Hampton’s argument will now be examined in detail followed by a closer
consideration of how it is supposed to operate in practice. A further
question, derived from Pateman’s anxieties about an ethical turn in politi-
cal theory, will be asked: What practical use is such a formulation of
morality?
Hampton (1991a, 2002) describes two types of contract theory: the first
rooted in Hobbes and the second in Kant. Whilst Hampton (2002, 344)
describes Hobbes as having a “sensible metaphysics,” in that he locates the
source of morality in humans, she finds his moral theory wanting. This can
hardly come as a shock, given that his arguments aim to deal with human
beings as he viewed them. The arguments he makes regarding how people
should behave are based upon a vision of self-interested rational people
seeking to maximise the satisfaction of their desires. According to
Hampton, this is unsatisfactory for anyone trying to build a moral theory
because it is premised upon the view that individuals have only instru-
mental importance to each other. We should behave morally in the Hob-
besian sense only in order to co-operate with others for our own benefit.
It is only because we need others and cannot always dominate them to
achieve our aims that we have to treat them with “respect.” Hampton
prefigures her move towards Kant in her conclusion that for Hobbesians,
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412 Janice Richardson
One’s concern to co-operate with someone whom one cannot dominate leads one
to behave in ways that mimic the respect that one ought to show to her simply by
virtue of her worth as a human being. (Hampton 2002, 345)
Hence, Hampton argues that, for Hobbes, the idea of “respect for others”
is simply “mimicked” as it is based upon an attempt to use them to attain
a goal rather than upon a genuine belief in their worthiness as an end in
themselves. This can be contrasted with the position of Kant for whom
respect for persons is not based upon self-interest but upon a belief in the
equal worth of persons.
Like Hobbes, Kant evokes a hypothetical social contract. According to
Kant, the idea of the social contract involves asking: Are these laws we
could all agree to if we were given opportunity? This then confers legiti-
macy upon such laws. Conversely, if a law is such that a group of people
could not possibly have given consent to it, such as laws that defend
heredity status, then the law is unjust:
[The social contract] is rather a mere idea of reason, albeit one of indubitable
practical reality, obliging every lawmaker to frame his laws so that they might have
come from the entire will of an entire people [. . .]. (Kant 1970, 63)
Neither Hobbes nor Kant tries to argue that any obligation should arise as
a result of this fictional contract. Whereas Hobbes argues that individual
actions should be based upon individual need, to co-operate to satisfy
desires, Kant uses the idea of a social contract to argue that the process by
which persons reach agreement is morally revealing (Hampton 2002, 346).
The contract is a heuristic device used to indicate how persons should be
treated, as having value in themselves, rather than as means to an end.
Some feminist objections to Kant and particularly to Rawls’ expansion of
Kant’s image of “what people would agree to” are well known. It is argued
that any attempt to abstract individuals from their social situation neces-
sarily imports assumptions about human nature (see Hampton 2002, 353).
More broadly it can be argued that any attempt to justify the use of a
Kantian derived test such as, “would free and equal persons agree to this?”
is so open that it is really used to justify other values.16 Hampton proposes
that these criticisms are avoided by employing a “Kantian test” in the
context of domestic relationships. Whilst Hampton does not refer to
Drucilla Cornell, it is useful to compare the work of Hampton and Cornell
in order to explain Hampton’s position more fully. As a legal theorist,
Cornell (1995) bases her arguments for changes in the law upon the basis
of the Kantian question: “Would free and equal persons agree to this?”. In
contrast with Rawls, who uses the image of persons agreeing to a contract
16
For a version of this argument in the context of the Kantian derived legal tests of Drucilla
Cornell see Richardson 2004, 53–6.
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Feminist Perspectives on Social Contract Theory 413
in order to draw out fixed principles of justice, Cornell argues that this
question should be asked every time a statute is passed or (as a broad legal
test) whenever judges decide a case. She then expands upon this founda-
tion to detail the amendments she would support, pointing out that the
aim of the test is to employ the Kantian view that all persons have equal
worth (Cornell 1995).17 Hampton makes a very similar move in that she
wants to propose a Kantian test as a heuristic device. So, she is using the
social contract procedure as a guide to behaviour that reflects human
worth, as do both Kant and Cornell. However, she differs from both Kant
and Cornell in that instead of employing the test as a guide to the
legitimacy of legislation, Hampton suggests that individuals use it as a
more general “moral guide.” She says,
I want to propose that by invoking the idea of contract we can make a moral
evaluation of any relationship, whether it is in the family, the market place, the
political society or the workplace—namely an evaluation of the extent to which that
relationship is just [. . .]. (Hampton 2002, 350)
Hampton keeps one element of Hobbes’ work in this Kantian inspired test.
As she indicates in an interview (Pyle 1998, 231–8),18 she believes that the
aspect of Hobbes that is true is his comment that “we are not under any
obligation to make ourselves prey to others” (ibid., 236). She characterises
her aim as being to rework a Kantian perspective with more self-interest in
it (Pyle 1998, 233). As she explains in her article “The Wisdom of the
Egoist” (Hampton 1997), the idea of “self-worth” that lies behind this test
is one that she distinguishes from “self-esteem.” It is not pride in accom-
plishment or a sense of feeling good about oneself, but refers to the
objective respect that Kant argues we are all owed equally as persons.
Hampton does not draw a legal analogy but if one were to be drawn then
her insistence on self-worth would have its counterpart in the objective
legal duty of care that we owe to ourselves, as well as to others, in the
common law of tort.19
Hampton therefore suggests the following test:
Given the fact that we are in this relationship, could both of us reasonably accept
the distribution of costs and benefits (that is, the costs and benefits that are not
themselves side effects of any affective or duty based tie between us) if we were the
subject of an informed, unforced agreement in which we think of ourselves as
motivated by self-interest. (Hampton 2002, 351)
17
Cornell references Hampton at Cornell 1995, 242, n. 16, and 270, n. 1.
18
This was published after Hampton’s death in 1996.
19
The common law assumes that one has a duty of care to oneself that is equal to one’s duty
of care to others, for example, not to put oneself in danger (by acting with less than reasonable
care towards oneself). This argument is the basis of a reduction of damages in negligence if
the claimant is deemed partly responsible for his/her own injuries.
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414 Janice Richardson
Hampton is not arguing that all costs and benefits must be exactly equal in
all circumstances. Her aim is to prevent love or duty from becoming a lever
for exploitation, such that one party systematically pays more costs and
gains fewer benefits. To this end, she employs the idea of a contract as a
thought experiment to ask whether self-interested persons would enter into
the same agreement if they were not emotionally involved. The move of
splitting emotions from reason is very different from Cornell’s use of Kant’s
hypothetical contract; neither does it straightforwardly reflect Kant’s
division of the noumenal and phenomenal self, to be discussed below.
Hampton’s test is to be used to highlight a lack of reciprocity, from someone
who is capable of such reciprocation (for example, an adult partner, not a
small child or sick person), which then indicates disrespect for that person.
This work has resonance with other feminist analyses. Susan Moller
Okin’s reading of Rawls also employs this image of the social contract
(Okin 1989, 89–109). Rawls describes Kant’s hypothetical contract to decide
what rules persons, who are ignorant of their position in society, would be
willing to agree to. Rawls then produces one answer: his principles of
justice. Okin’s response to Rawls is to ask whether anyone, deciding the
rules behind this veil of ignorance, would risk being treated as a woman
in a patriarchal society. Whereas Okin employs the image to raise specific
objections to Rawls, Hampton is suggesting the test as a guide for
individual use. Although as an analytic philosopher she would not draw
this analogy, Hampton’s test is more akin to the Nietzschian test of the
eternal return in which an individual must ask himself/herself: “Can I
affirm my actions such that I would be willing to relive my life eternally?”.
Given that Hampton’s test is based upon Kant, it is closer to the way that
the categorical imperative (“could I will that my actions be universalised?”
which indicates what a purely rational agent would do out of necessity)
could be used for guidance.
The implications of Hampton’s test can be explored by considering her
position on the issue of gratitude. Hampton stresses that her test does not
apply if the other party is unable to reciprocate. However, as children grow
or sick persons’ health improves they should express gratitude to indicate
that they are treating their benefactor as worthy of personhood and not
taking her/him for granted. A useful way of unpacking Hampton’s posi-
tion on gratitude is to consider the extent to which she has a debt to
Hobbes and/or Kant. Hobbes (1994, 128) famously argues that children
should be deemed to contract not to turn against whoever raises them.
Hobbes’ clear-sighted individualism is demonstrated in his argument that
in the state of nature women would have dominion over the child, if they
chose to protect it, because fatherhood would be unclear and, in any event,
based upon the woman’s word. Therefore, he argues that dominion over
children is not based upon generation but on whether someone had
brought up the child (Hobbes 1994, 127).
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Feminist Perspectives on Social Contract Theory 415
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416 Janice Richardson
20
For further common law illustrations see Richardson 2004.
21
For example, rape in marriage was made illegal in the UK as late as 1991 (R v R 1991 4 All
ER, 481). The case involved a discussion about the woman’s consent as an implied contractual
© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 3
Feminist Perspectives on Social Contract Theory 417
Pateman would be in full agreement and could then go further to argue the
more radical point that the exchange of “property in the person” for wages
teaches workers not to have a voice in their everyday lives, which is then
inconsistent with full respect for personhood.22
When Hampton’s test is compared to the work of Pateman, Hampton’s
lack of analysis of social structural inequality appears stark. However, she
is clear that the test is not meant to replace large-scale theorising about our
institutions (see Radzik 2005, 52). Hampton recognises that the background
to Jake and Amy’s moral views needs analysis. It follows that simply
providing a moral test would only appear satisfactory if, with Kant, you
think that we can abstract ourselves from our current situation and employ
the faculty of reason. This raises a further problem that is not addressed by
Hampton: What is supposed to happen if you assume that the relationship
in question fails Hampton’s test but that society is such that there is no real
alternative? This situation returns us to Pateman’s objection that moral
theory alone is insufficient if it displaces political action. In Hampton’s
work, widespread test failure can be used to indicate that political action
is required.
term of the marriage contract (R v R 1991 4 All ER, 606). For details of comparative European
laws relating to rape in marriage see L. Regan and L. Kelly 2003, 16–7. In MC v Bulgaria
Application no. 39272, 4th December 2003, the European Court of Human Rights held that
any failure of member states to proscribe all acts of non-consensual sex represents a violation
of Art. 3 of the European Convention on Human Rights (“No-one shall be subject to torture
or to inhumane or degrading treatment”): see Conaghan 2005.
22
Drucilla Cornell has drawn upon the same Kantian argument of respect for personhood to
argue against common law employment at will in the US Cornell (2000, 83–117).
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418 Janice Richardson
For, what is the peculiar character of the modern world—the difference which
chiefly distinguishes modern institutions, modern social ideas, modern life itself,
from those of times long past? It is, that human beings are no longer born to their
place in life, and chained down by an inexorable bond to the place they are born
to, but are free to employ their faculties, and such favourable chances as offer, to
achieve the lot which may appear to them most desirable. (Mill 1998, 488)
So, for example, it has become clear that, today, “[w]omen have become
less confined to roles associated with nurturing and caring and have
23
This is illustrated in common law with regard to actions for loss of consortium, when the
defendant had injured a wife such that she could not perform her duties, abolished in 1982:
“The action which the law gives to the husband for loss of consortium is founded on the
proprietary right which from ancient times it was considered the husband had in his wife. It
was in fact based on the same grounds as gave a master a right to sue for an injury to his
servant if the latter was thereby unable to perform his duties. It was an action of trespass for
an invasion of the property right which, arising from the status of villeinage or serfdom, the
master had over his servant.” Best v Samuel Fox and Co. Ltd. (1952) AC, 731–2 (Lord Goddard).
© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 3
Feminist Perspectives on Social Contract Theory 419
24
For further analysis of the way in which the law shifts between the treatment of women
as akin to a feudal worker compared to a worker under capitalism, see Richardson 2004.
25
This concern is central to the analysis of Frazer and Lacey 1993.
26
Foucault uses the term to evoke the idea of a self, coming into being as a result of different
techniques whereby one can act on oneself. One such technique would be the exercise of
reviewing one’s day to try to analyse and improve one’s ability to make decisions. See, for
example, Foucault 1997.
Ratio Juris, Vol. 20, No. 3 © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd.
420 Janice Richardson
University of Exeter
School of Law
Exeter
United Kingdom
E-mail: janice.richardson@exeter.ac.uk
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