Scribd Logo
Încărcați

Bine ați venit la Scribd!

  • Pateman, The Sexual Contract PDF

    Încărcat de

    o.mo
    917 vizualizări19 pagini

    Titlu original

    Pateman, The Sexual Contract.pdf

    Drepturi de autor

    © © All Rights Reserved

    Formate disponibile

    PDF sau citiți online pe Scribd

    Vi se pare util acest document?

    Este necorespunzător acest conținut?

    Raportați acest document

    Drepturi de autor:

    © All Rights Reserved
    Descărcați ca PDF sau citiți online pe Scribd
    Indicator pentru conținut neadecvat
    917 vizualizări19 pagini

    Pateman, The Sexual Contract PDF

    Încărcat de

    o.mo

    Drepturi de autor:

    © All Rights Reserved
    Descărcați ca PDF sau citiți online pe Scribd
    Indicator pentru conținut neadecvat
    din 19
    The Sexual Contract Carole Pateman Stanford University Press Stanford, California 1988 6 Feminism and the Marriage Contract rom at east 1825, when Wiliam Thornpeon published ie attack con the ‘white slave code’ of marriage, feminists have persistently titicized marriage on the grounds that itis not «proper contract. In 1860, for example, Elizabeth Cady Stanton stated in a speech othe [American Anti Slavery Society, that “here is one kind of marrage ‘that has not been tried, and that is a contract made by equal partie side,” Marriage is called a contract but feminists have argued, an _TTastition in which one party, the husband, has exercised the power of slave-owner over his wie and in the 1980 aL etal some nants of that pow, is far removed from a contractual relaton= ‘hip. Some Feeent dscussons of marriage assume that conjugal relations are purely contractual - ‘husbands and wives contractually acquire for their exclusive use their partes sexual properties"? ~ And feminists sometimes take criticism of the mariage contract (0 Contractaran conclusions. One feminist legal scolar, for example, thas argued that marrige sould be movdelled on economic contracts and that there should be @ move from “public marital policy to Private contract law’.? However, not all feminist cites of the Imarriage contact conclude that marriage should become a purely contractual relationship. ‘Marriage, according tothe entry under ‘contract inthe Osfod English Disonary, hasbeen seen asa contractual relationship since at least the fourteenth century, and Blackatone states that ou law considera marrage in no other light than as civil contract." The attraction of contractual marriage for feminists is not hard to see Feminist crim tkes a ‘contrac’ to be an agreement between two equal parties who negotiate until they arsive at terms that are 10 ( Feminism and the Merriage Conta 155 ‘her tual advantage I arsine were a proper ont, women Atul have to be broil icon excl the same Tong us “Tit husband: Many feminist, eaperaly inthe Unted Sates, vente what ar called ‘nat contract or mariage co Ttning intend ofthe mariage contact? Negotiation of dea Sctanteements that may eve neue adeanee provision for dsl ‘Mont ber obvour advantage ver he mariage contract. Gis of uae contracingave ined otha sine fw women cana nue s men, only a few miale-dass and profesional women Sey tobe int poston o negotiate an intimate entre. Bat ifs problema wih a purely entaual view of mariage Fun mach deper- Feminist writers have sete the defines of contac in withthe pres cannes the te thee, They ave ao ne tothe reps in mie the mariage ona fle om Pennie contacts, ut, by and large, the eth offer le ‘Sage ely th contract ie oc. Nor have they explained wn eal authors, deste Dlactons’s rm statement have also ‘ete sir dois out the contractal chaacer of marrage ay For example, in Schoule's A Tretia en the Lan of the Domestic Relations we Bd" in the ordi indeed it be a contact at all; at an agreement to enter into w ‘a solemn relation. which imposes ite own terms.’6 A few years Inter, the United States stated: a judge sven the enteactng parties have entered into the marred state, they [ave not so much entered into a contact into anew relation, evar ofcontrct tht the aon shoul be estabiahed, bat, beng ‘tse the power ofthe pasties atte extent or duration i at ‘Shend, Phir ightsunderitaredterminedby thew he sovereign evidenced bylaw.” i More recently inaeferenceto mariage towars the end of Te Rie Sel Rl of rc of Cnet, tgs semi that ve are no hee ‘tating ith mates conventionally lasifed as contact” But ites neers are very een about why the mariage conta SERIE te else the singular sation of marcied women as follows ender covertre, fora mantocontat wth his wife, auld 156 Feminism and the Mariage Contact be only co covenant with himlf: and therefore itis alto generally true, thatalleompacts made between husband and wife, when single, are voided by the intermarriage’? Blackstone, like the classic contract theorist, assumes that women both are, and ate not, able to feter contracts. Ifa man and a woman agreed to drav up the terms oftheir contract when they married, the contract would be void. A ‘marred woman lacks a civil existence ao she could not have made a contract with her husband. No wonder there are stl problems about the contractual character of marriage! To concentrate onthe defects. fof the marriage contract as contract deflets attention from the problems surrounding women's participation in this agreement. In particular, enthusiastic embrace of contractaianism by some con- temporary critics presupposes that contract i unproblematic for feminists, The solution to the problem of the marriage contract is presented as completion ofthe reforms that have eroded eoverture; ‘wives can take their place as ‘individual, and contract appeart ‘once again asthe enemy ofthe old world of status or patriarchy. All the anomalies and contradictions surrounding women and contract, brought light in the story ofthe sexual contract, remain represted William Thompson's Appa of One Half the Haman Race, Women, Agus the Pracsint ofthe Other Hell, Men, to Retain them in Pita, ‘aed Thence in Ciel end Dome, Slavery, laid the foundation for sub ‘sequent feminist rtcism of marriage a8 2 contractual relation. The ‘ychemence of bis polemic has rarely been equalled, but Thompson places litle weight on a proper contract as a solution tthe problems ‘of conjugal relations. fn this vespect, his argument diflers not only from rauch contemporary feminist argument but also from John Stuart Mill's much better known The Subjction of Women. According to Thompson, politial rights fr women and an end tthe economic system of individual competition (capitalism) ate the crucially important changes that are needed. Only political rights can bring fn end to ‘the seey of domestic wrongs’! and free relations ‘between the sexe willbe possible only within a social order based on ‘Tabour by mutual co-operation’, or co-operative socialism, "Thompson built model dwelling fr his workers on his Corkestate and established mechanics institutes ~ he argued that women should be admited to the institutes, to libraries and other educational ext Dlshments. He worked ont a detailed scheme for co-operative, communal socialism but he died before hie plan could be flflled. "The co-operative or utopian socialists inluded communal house- evo ond th Mariage Cra 1s wok heen or Snow commis an in he ppal thorpaon emphases tha provision for chile, for dere ule x nmunal spony. When women cot trnctte Uke work fhe commnnity along with men, and could ‘ihe equal on comma sources ir wn ight th Bast hcl domsinaton wold beveerind Whentan ano more ‘einen oa mies rr nhs pero song bgt down ct jee ae ee ar asst atieaon tom te elexary Secon sf woman’ Once wermen had seared thir civil and Soll igh and were economies independent in te new wold Panny cooperation, hey woud have no ean te sujet coimenn era fer beens en wuld hae no men to become womens ssl masters "Hoe Ipplwas canon by the angument of John Stu’ tube, er Mil tet women i noted he vote because Cet ssc were apumed inte nee of ir father or tee BESS." Gauke hs elow ultram then and now, and te ene vipa tncrperate mis of the fy fo one were frien Thompaon extended hs individual to women. He ifced that the neres of cach nvl member ofa fay mst Sls ad ey Indl tres of wives ad Uaspterscoul por be esumed ener thn fe maser ofthe fey nor col his benevolence be ame to be alent © Csi’ ea ners were pete. omg say tht ome eeeaton must be made ef te." myerioalyoperating Saenon a nrage’ nf he "oral mile othe phy Sturt of he mnt centory = of edn wo tents n> Slt he mariage cone we the means ough which the “a tec was soup, twa anything bt «contact “Thompson ees at itn ‘aac aed” ole to argo ‘contact! where ate any ofthe atrotes of contracts, of eq a fst contact so be fond in thi tanencton? A contact implies he ‘lunar absent of bah the contracting pares, Can even bos he Darin, ma and woman, by agreement alee the terms, a8 indir Toby atl inal, of thie pretended contact? No. Cam any Inve! man divest ime were he even a9 ineined, of bis power ‘tderpotceatol? He canst. Have women ben nsted ae terme this pretended contac? 156 nin and the Matriage Contact Women were forced to enter into this suppored contract. Social custom and law deprived women of the opportunity to earn their so that marriage was their only hope ofa decent lie. The ‘marriage “contract” was just like the contract thatthe slave-owners in the West Indies imposed on cheie slaves; marsiage was nothing ‘more than the law ofthe strongest, enforeed by men in contempt of the intrerts of weaker women, "Thompson makes the very important point that no husband can divest himself of the power he obtains through marrage. T have found in discussing this subject that confusion eal arises because ‘we all knoy of marriages where the husband does not use, and Would not dream of using, his remaining powers, and it thus eems ‘hat feminist eritcism is (today, at lest) very wide ofthe mark, But this isto confuse particular examples of married couples with the ‘auton of marriage. ‘Thompeon carefully draws distinction Detween the actions of any one husband and the power embodied in the structure of the relation between “husband” and ‘wife. To ‘become a ‘husband’ is o atsin patriarchal right with rexpect to a ‘wile! Hisvight is much diminished today ftom the extensive power Ihe enjoyed in 1825, but even if'a man does not avail himeelf ofthe Jaw of male sexright, his position a a husband rellect thei ‘ionalzation of that law within: even if, im any individual cago, ie cular individual man [may] not play 1 personal role inthis general oppression, which occurs before his appearance on the scene: but, reeipreally, no personal initative on his part can undo or mitigate what exists before and outside his entrance’ # Thompson adds the further important observation that, ‘even ifa husband renounces his power, hia wife's freedom is always contingent on his willingness Continue the renunciation ‘Some husbends may, ss"Thompson past allow heir wives equal pleasure to their own. However, the wife's enjoyment depends entirely on the benevolence of het husband and what he does, of ‘doesnot, pemit her todo. The husband can make the marital home into a prison and cutoff ‘is household slave from all sympathy but With himself, his children, and eats or other hovtehold animals’. A. Wife can be excluded from ll intellectual and social intercourse and pleasures, and can be prevented from forming her own fendship “is there a wife who dares to form her own sequaintances amongst ‘women or men, without the permission, direct o inditect, of the ‘here ‘not used, Christine Delpy | Feminism ond the Merriage Contact 139 husband... oF to retain them when formed?" If a husband chooses to forego all his legal powers his wife stil has “but the pleasures of the slave, however varied’, becaute her actions are always contingent upon the permision of her husband. © Thompson Claims that in these matterr wives are worse off chan the female tlaves ofthe West Indies, and husbands have wider juriedietion than slavermasters, Tn one respect the marriage contract differs from slavery or from the extended employment contract of civil slavery. Slavery originated in and was maintained through physical coercion. In the civil slave contract, like the employment contract, service (labour power) is exchanged for subsistence or wages, Civil slavery cannot bbe maintained through time unless dhe worker (lave) i obedient 9 the commands of the employer; obedience is constutive of contact. ‘Ax'Thompeon emphasizes, ia the marrage contract a wife explicily ‘agrees to obey her husband. "The mariage contract i distinguished by reserving for wives “this gratuitous degradation of swearing to be slaves’ Thompron wonders why itis that men do not find the ‘simple pleasure of commanding t be sufficient, without the gratification of the additional power of taunting the victim with her pretended soluntary surrender ofthe control over er own actions?" The vow of obedience is now no longer always included in the marriage feremony but nor has i entirely disappeared, and shall come back {o this feature ofthe marriage contact. "Just as wives’ socal pleasures depend on the benevolence oftheir hnisbands, so, ‘Thompson argues, do their sexual pleasures, Tn his brief conjectural history of the’ origins of marriage, ‘Thompson speculates that men's sexual desires led them to set up ‘iolated breeding establishments, called marred lie’ instesd of using women merely as labourers. With the establishment of macringe tnd the pretence ofa contact, men’s domination is hicken by the aim that marrage allows equal, consensual sexual enjoyment to both spouses, Husbands, it i held, depend upon the woluntary compliance of thet wives for thie pleasure. Thompaon decares this to be an ‘insulting falsehood”; husband is physically scong enough, and is allowed by public opinion and the law, to compe! ‘wife to bmi 1 him, whether she i willing or not. She, however, ‘hat no right to enjoyment at all; she can beg, ikea child ora save, bbut even that i dificlt for women who are not apposed to have sexual desires. Thompson concludes that “sexual desires increase 160 minim and the Marriage Contact tenfold the facility of exercising, and of continuing for life, the ieee er ae aa area peed, that, to bring the audacious falchood of the marrige contract toa ‘end, not only sweeping political and economic changes are required, but also a radial change in what it meant to be a masculine of feminine sexual beings the original contract must be declared mull and void our decades later, John Stuart Mill drew much less far-reaching conclusions from his stack on the marriage contract ae contract, Tn some ways this is rather surprising, since there are some striking parallels between Mill's arguments in The Subjecton of Women atl ‘Thompson's Appeal. But there are also some important differences "The suggestion has recently ben made chat Mill had ‘unconsciously’ taken over Thompson's argument ‘almost word for word." Be that as it may ite curous that Mill doce not mention Thompson, whons Fhe met in 1825, the year thatthe Appea! was published. Mill w ‘sympathetic to co-operative sorialsm, and in the 1820s and 1830s he ‘went to mectigs atthe South Place Chapel in London, a radical sgathering-place, where Anna Wheeler sometimes lectured. Anna ‘Wheeler's contribution to the Appeal, which has come down t0 us with William ‘Thompson's name on the cover, is, perhaps, more lear cut than Harriet Taylor's role in The Subjetion of Women, published in che name of John Staaet MUD, ‘Women had a very large hand in both the Appeal and Th Sujection of Women. The controversy about the contsibution of Harriet Taylor to Mil's works hat continued for many years, and offers a fc rating glimpse into the patriarchal bastion of politcal philosophy, ‘often fiercely defended by women; Diana Trilling, for instance, ‘announced that Harviet Taylor had ‘no touch of true femininity’, no intellectual substance, and was ‘a monument of nasty self-regard, at lacking in charm asin grandeur’ ~ clearly quite uafived 1 asociate with a male theorist admitted to the pantheon of Great Western Philosophers. Gertrude Himmelfarb tas blamed ‘Taylor's undue influence for Mill's Inpses from the path of moderation, most notably in his feminism. Philosophers must clearly choose their wives with are or women’s natural political subversion will under rine the work of the mind.#! As a fiend of a writer ignored by politcal theorists and dismissed by Marxists as utopian, Anna ‘Wheeler has suffered only from neglect. Inthe "Introductory Later to Mrs. Wheeler’, with which Thompson opens the Appeal, he states oni ad the Mariage Cott ‘61 that he had hoped that she would conn the work begun by Mary Watineet "but ibure and reaiton to undertake he Tradgey ofthe tak were wanting.” Only few pages were wate by Ana Whedr heel he ener re pepe Uline ouriterpretr and the sre of your sentiments = “ks Start Ml wes one ofthe rare en who not nly supposed 1 emit move aterm ot spa tis etc of the mavrnge contact was summed wp na Wisc tat he drew up two ont before he and Harriet Taylor src mused in 851, Mil completly ejected the gal powers hat TS nouldsequite a8 husband ~ though his jection had mo leg ting = undevaking fa slemn promise never in any tse oF der ay creumntances towne them He tates that be ana Hare ‘Tastor ently disapproved of exiting marrage law, beemse "Canes upon one ofthe pate tothe contact, legal power and ‘Snot over te person, propery ad freedom of acon ofthe ther ‘att independent a heron wishes and wil. Mil concluded is Ueda by sting that Hart Taylor cain in all respecte “fates the lame abolte feed of action and Freon of ei onal ohereland fal that deo may at any te belong bes io much mariage ha taken pace; and Tabsoltely dil and SSpuit al peterson to have cited any such ighs whatever rue of och sarge reat gros wih Thompeon on several sues. He argues, OF cumple, nt women have o atative, they are cmap ‘Samy "Wie isthe only poston tht eit upbringing, lick of Thetion and ining, and social and legal prestures eaiically ‘ere apento them, Milas dsinguishs between the behaviour of ‘savsleal husbands andthe state ofthe intttion of marge He angucs that defenders of exiting marsiage law rely on the ‘hump husbands who fain rm ung thee gal powers yet STarage i designed for everyman, not mercy a benevolent, TEs Showe sen who phil isrem thee wives too 2 with “nal impunity, Agu like Thorpaon, Mil argues that t become TEE tmameuntto becoming slave, and in some ways is wore {ihn ant evt her o a at I obligation goes, than saves commonly #0 it 1th ot recent han Thompoon sou awife'ssexual subjection, “Though, ao Thave aeady nse, he ce atenon to the rgb of Haband Yo compel his wile to grant his conjugal igh 162 Hominid the Marriage Contract Where Mill pasts company with Thompson is that he denies that there is any connection between conjugal domination and a wife's position as housewife and economic dependant. Mil ale for reform ‘of marriage law to bring the marriage contract in Tine with other contracts Echoing Pufendorf, he notes that ‘the most frequent case fof voluntary assciation, next to marrage, ie partnership in busi ness, but marriage compares very unfavourably with business. No inks that one partner in a business must be the absolute ruler; ‘who would enter a busines partnership if that were the case? Yet, if power were placed i the hands of one man, the arrangement would be less dangerous than in marviage, since the subordinate partner ‘an alwaye terminate the conteact; such a courte snot open toa wile {and Mil, who was very cautious in public on the highly charged ‘question of divorce, adds that even if wile could withdraw from & ‘mariage she should do so only asa last resort). Ln business, cheory and experience both confirm thatthe appropriate arrangement i for ‘the conditions of partnership to be negotiated in the articles of agreement. Similar, Mill argues, in marriage he ‘natural arrange ‘ment’ isa division of powers between husband and wif, ‘each being absolute inthe executive branch of their own department, and any change of system and principle requiring the consent of oth “How isthe division t be tae? Mil suggest, onthe one hand, that an arrangement will be made according to the capacities of the partners; they could ‘presappoint it by the marriage contract as pecuniary arrangements are now often pre-appointed’. On the other hhand, a feminist erties have recently pointed out, Mil is ultimately inconsistent in ie argument, He falls ack an the appeals to custom ‘and nature that he had rejected at an earlier stage of is argument in ‘The Subjection of Women, Mil, like the elasi wocial contract theorists, szsumes that sexual diference necestarily lads to sexual di foflabour,adlivsion that upholds men's patriarchal right. Heremarks that, because husband fs usually older than bis wife, he will have ‘more authority in decision-making, ‘at least until they both time ofife at which the ciflerence in heir year of n0 importance” However, he does not aay why the husband would be willing (0 relinguish his power, oF how the appropriate time of life is to be recognized. Again, Mill notes that dhe spouse (and he din ifenuounly writes, “whichever it i) who provides greater support Will have a greater voce, but his own argument enaures thatthe ‘wife's voice wil remain subordinate." nomen the Mariage Coa 163 Ma states that when the fay reliant earning forsuppert «anfcominonsrangerent, by whl he man era the ome and {he sae topsite demente expenditare, seems to me i Seon iets stable divcion of lout between the two ‘clout wumes thar when wore have equal opportniy in rerio and tur the paw of caning” and tavage as teen ‘Sitane so tha husband are no longer legally sanctioned slave- SE Socman; by virtue of becoming a wifey wil tl eore ‘Rainn helm, protected by bersand. He xpi ents ‘Soman's hei to marry wit mans cos o carer. When SIGEE Mure sw houscold a fart attend, she Sia! enounce all oer eccpatons which ae not consistent wih Termeni. Bren mariage became a rel nega Stic Ghnace Ml expected that women would acept Ha they Shout render dest rere anit Taylor was much closer t9 William Thompson on this ise Ini Tefen of Wome ep he tn that opening ll ocnptoos obo sexes on men wo 225% too many competitor andthe lowering of wage ad sales ‘Ryu srg at, a wos uch an elagement of opportunity ese woud tenn tat 8 mse couple cod not ten eh ‘Sonia the man could now co om his own. The prea henge Bere atthe ie ould be raed rom the poiion of aera Winwtta parte Aring a economic ife was govemed by com testo the cxlsion of half the competitors could not be jie. She add that he didn blo tat the vison of mankind at tanned ved aboarc and the regulation of the reward SEES sail by dena od supply, il be forever, oF 78 tnuch longer the ul ofthe wor Most of the reforms to marrage Inw demande by feminists inthe neteenth century have now been enacted. Nevertieless, conten foray feminists sl erp tha the mariage contrac vege# etpianserpectsom ater contracts, Some of i p= Ttucmble these of Thompeon ad Mil, thers highlght yet free feculates of martage ta contrat For example, contemporary Cini pit out tat the matrnge contract, nie othe valid cone ee i one tyes op eto potion ‘out boli integrity, They have also pointed out that Une arr ge case Moe nt cit sa writen document tat red and hen 168 Feminism and the Mariage Contact signed by the contracting partes. Generally, a contracts valid on ifthe parties have read and understood its ters before they commi themselves, If very large amounte of property are involved in a marriage today, a contract will sometimes be drawn up that resembles much older documents, common when mariage was a ‘matter fr fathers of familer and not the fre choice of two individ uals. The fact that most marviages lack any document of this kind, ilustates one of the most striking features ofthe marsiage contrac “There is no paper headed “The Marriage Contract’ to be signed. Instead, the Unveriten contract of marrage, to which a man snd & ‘woman are bound when they become husband and wife, is eodified in the lave governing marriage and family ie.” ‘There is another reason, too, why there is no written document. A ‘man and a woman do not become husband and wife by putting their ignatures on a contract. Marriage is constituted through two lferent aca, Fist, a prescribed ceremony is performed during the ‘couree of which the couple undertake a speech act, The man and ‘woman each say the worl ‘I do’, ‘These words area ‘performative Uuerance’; that i to aay, by virtue of saying the words, the standing ‘of te man and woman is eansformed. Inthe act of saying ‘I do, ‘man becomes a husband and a woman becomes a wife, Bache And spinaters are tarned into marred couples by tering certain ‘words ~ but the mariage can ail be invalidnted unless another act 1s performed. Second, the marriage mutt also be ‘consummated! though sexual intercourse, Kant was emphatic about this ‘The Contra of Matringeiscompleted only by conjugal coabitaton, ‘A Contract of two Persons of eferent rx, vith the secret under sanding either to abutain from conjugal cohabitation or with the oneiouaesr on either side of incapacity of saat Cot, ‘doesnot conaitae a mariage” ‘The story ofthe sexual contract explains why a signature, or even a speech act, is intuficient for a valid marriage. The act that ie required the act that eas the contrac, ie (eignificantly) called dh ser ft, Not "until husband has exercised his conjugal right ie the marriage contract complete. ‘Contemporary feminists have also emphasized the fact that married couple cannot determine the terms ofthe marriage contact to suit their own circumstances, There isnot even a choice available between several different contracts, there i only the marriage oninism ond the Marriage Contact 168 contract, Matted women first obtained some power to contact for themselves after Matried Women's Property Acs were passed in the nineteenth century ~ in Britain a wife's personal liability for Contracts was acknowledged by Pasliament only in 1935 ~ but, as Lenore Weiteman has noted, deapte major reforms since then, (wo legal restrictions have been maintained on contract between husband and wile, "Fist, no contract could alter the essential elerments ofthe Iarital relationship, and steond, no contract could be made in Contemplation of divorce.” A married couple cannot contract 0] ‘change the essential’ of marriage, which are seen az"the husband’ “duty to support hie wif, and the wife's duty to serve her husband?" elation of protection and obedience eannot legally be altered, so that, Fr example, a marfied couple eanhot eoitact fr the wife to be paid by her husband for her work as a housewife, Couples do have some scope for making their own arrangements, Dut i i important 19 note tht William Thompson's point about the per= mmission ofthe husband remains relevant; individal variations are ‘made within a elationship of pzoea dependency. The couple work fut together what the husband wants [the wife} to do... within Certain general parameters’. The general parameters a the Jaw governing marriage, and feminist ten fellow ‘other legal authorities in arguing that, dherefore, marriage & Jess a “Goniract than a matier of satu os TBat status” ta which sense? Some discussions suggest chat the old world of tatu has lingered on into the modern worl. ‘Thus, in The Subjcton of Women, John Stiaet Mill argues that ‘the lave of servitude in marriage ie a monstrous contradiction to all the principles of the modern world’, and that women’s subordination is, ‘a single relic ofan old world of thought and practice exploded in everything els’. The “peculiae character of the modern world [i] that human beings are no longer born to cei place in life, butare fre to employ ther faculties, and such favourable chances as oer, to achieve the lot which may appear to them most desirable’.®> ‘At present this principle applies only 10 men; to be born a woman still entails that place in life i alteady waiting, Marriage, Mill lrgues, must thus be brought into the modern world; the relics of ‘Status must be eliminated and martiage must be moved from status to contract, Iv the old world of status, men and women had no choice about the social positions they occupied as husbands and ‘wives, Mary Shanley has remarked of marriage in dhe seventeenth, x + 165 Feniniom andthe Marriage Contact century, that ‘the “contractual” element in mariage {was] simply “the court of each the other, . » To contact a Tari terable'.* Feminist ers ofthe marriage contract lien make a similar point about contemporary marrage; for ‘example, the marriage contract "is not, in fact, a contract between, the spouses, but rather they agree together to accept a certain (externally defined) status! ‘Emphasis on ‘statu’ at an externally defined postion overlaps with status, as used by legal waiters, to refer to regulation af, ad restriction on, freedom of contract by the state, Stata, they argue, is en incorporated into contract. Feminist legal scholars, too, present marriage as ether an exception to the movement from status to contract or as part of a reversal back to status. For example, "Weitzman argues that marriage isnot yet a contract, in which the partes freely negotiate the terms, but has moved rom a status to a ntur-contract’, Men and women can choose whether or not to ‘marry, just ns they choose whether oF not to enter ether contact, but, once they decide to mary, ‘the contract analogy fal, because ion of the relationship are dictated by the state we been deprived of he ‘that contract provides" Marjorie Shultz recognises that there hes teen shit rom Maine's tse of tattoo condions pond cn the iniviual by public law, not usualy se arent of birth Sharacertic, but trough choi or consents Nevers, she Tel to movement rom contact back o satu, In marting, ‘sponte an contrat nos tr"package” wit lit contol over ie substantive terms” Se anges that the movement fom contract thould be revered, rommiage sho be purely a matter of contrat Sine contact ‘flrs mich td developed ition whose principal $cength is precy the accommodation of divers sltonshipe Exactly, the contac tradton cam ven accommodate the relation beoween master and save. “Tonge forte sermon of mariage tothe mde of economic contac inthe yay of redo of contac (fie a pio ever txt) i to aasime thatthe public and private wos can be ‘imilate nd ignore the conrrction ofthe option between the wold of contact apd ie atual foundation’ within ceil sere Contract appears he solution tthe pom of pti enjiom ond the Marriage Contact 167 * [ye anther sense must algo be replace by contract. Gontemporary feminist rts have pointed out that, ake other contract, the mariage contact cannot be entered into By any 60 {er more) sane ads, but restricted to two parties, one af whom {host bea man and the other a woman and who must not be elated in certain prseribed ways). Not only docs “hasband? obtain a Certain power over his wile whether or othe wishes to have i, but the mariage contact sexually asciptive. A man it aways a ‘Husband ands woman is always. oie But wht follows from thi ric? ‘The argument that marrige should Become x properly canal ron ps tht svn ies lo ah ret ‘Satu Legal waters argue that there as been a movement fom cont to state Decune subwantve social characteris of paves to contracts are treated ag televant matters im decisions Mier ‘eerain contracts should he permitted of reputed Freedom of contact (proper contact) defards Oat no acount i faken of substantive Stiibutes” such as wx. I'maeringe to be Ural contractual, sexual illerence mst Become irelevant tthe tnactage contac; “husband? nnd “wi snus na longer be sexually Getermined, Tnded, fom the standpoint of contact, “men” and “women” would disppear. “The completion ofthe movement fom saus-o contract entails that stats assem dileencesboulddiapppeae alongwith status “iris aller senses. There cam be no predetermined limits on {icy we ne npn by eng te x heparin In contact, he fact of being a ah ora woman i ielevant. in @ “Groper mariage contract ve Tndividuale” would apres on wtewer {crms were advantageous to them bot, The para o see a contract troulé not be a man” and 4 "wornan’ but two owners of property Tice persons wh have come fo an agreement about thee property to tie mutual advantage. Unt recent, there was no nugget {hat statu inthe see f sexual dillerence would ako give way (0 ontact.'To swecp away the ast remnants of sats in mariage can ave consequences not frcecen by Thompson or Mil who didnot 168 Remini ond the Marriage Contact object tothe fat that women became wives; they strongly objected {0 what being a wife entailed. Earlier feminist attacks on the indissoluble marriage contract and its non-negotiable terms were Sirected. at the husband's conjugal. right, not at the sexually scriptve construction of ‘wife" and “husband”, The contemporary attack on sexual difference, apparendy mach more radical than oder arguments suffers from an insuperable problem the individual ina patriarchal category. Contract may be the enemy of status, but itis also the mainstay of patriarchy. Marciage a8 = purely contractual relation remains caught in the contradiction thatthe rubjection of wives is bot rejected and presupposed, s point Ulustrated in the argument over the marviage contract between Kant and Hegel. ‘The contractoal conception of matings presupotes the iden of theindviual x owner The macringe contact extalises itn access (0 sexual propery in the perton. Kant was the contact Gheors who came close to pretenting a view of marrage as toting other than a contract of sexeal se. Marriage, for Kant it “the Union of two Perons of diferent sox for Rfelongreiprcel omestion oftheir semi facies Locke remarked tht marta ‘city exalted through the matige content, ‘consis che” in he spouses” "Communion and Right in one anothers Rodis 2 But, the mary of he orignal etal contract revel, the ight s tot io one anothers bodies the ight sth of mvc exh Kant endorted the sexual contrat, buy paradoscly, he also rejected the idea of the inividal a owner ofthe se (@opety in person) and he had too to some rather xaring lengths 0 ‘maintain a elconscoualy contractual ew of mariage ‘Kant’ view of mariage ofers a patculary clear exaspl ofthe imulaneour denial and affimation that women are inlvual or in Kan’ terminology, “pertons’ On the one hand, his phi soph rests onthe amumption ta, by viree of being. huhan, verye ha reason, and wo posses the capac fo ae ceording {0 universal moral awe and to prtcpte in elie, On the othe hand, human capacity ix sexually feretated, Women lack politcal orev season. Kanes rater banal obervationg on the haracters ofthe exes owe everyshng to Reuven, Heb that ‘women are ceatures af ling, not reason, 20 thats unless fo ‘emptto enlarge wosnen's morality fo encom universal Fle ‘Wamen only act the action pleasing to them, They are incapable Femincm ond the Merriage Contract 169 of understanding principles s, for women, the good must be made pleasing. Women know ‘nothing of ought, nothing of mst, nothing of tt’. The tenaciousnest with which male philosophers cling tothe femual contract lustrated by the recent comment that, ‘whatever Kants concasion about woman’ role, his analysis of her condition ll worthy of hi great mame."#! “Men are governed by reason and are Uhcir own masters, Self mastery is demonstrated in the way 2 man gains his livelihood, by “not allowing others to make use of; for he must inthe tue sense of the word ze no-one but the commonwealth’. If socal circum ances require & man to be anothers servant oF enter into the tmployment contract and Inbour atthe behest of another, he lacks the criterion for possession of a civil pertonaliy" and 0 is exchded fiom citizenship. Kant attempts to distinguish men who serve others, uch asa barber of labourer, from a wig maker or tradesman ‘whoinan independent master. A tradesman, for instance, “exchanges his property with someone esc’, while the labourer ‘allows someone lie to make use of him’. Kant, rather despairingly, adds that itis hard to define the ertcria fr selE-mastery.*® Or, at leat, iis hare in the case of mer, because ll men have the potential for sel _marlery; mere accidents of fortune and crcumatance make some men tervante, used by another, and disqualify them ae civil pero oF individuals. The case of women appear o pose no difficults ‘Kant states that ‘women in general... have no civil personality, and their existence is, 50 to speak, purely inherent." They must, therefore, be kept well away from the state, and mus also be subject ~ in marriage. Kant claims that birth eannot create legal inequality because birth isnot an act on the partof one who is horn. He argues tha the equality af legal subjects fannot be forfeited through contract; “no legal transaction on his [part oF on that of anyone elie can make him cease to be his oven master." Kant fail to-mention thatthe marriage contract is an ‘exception to this argument. Even if women were men’s civil equals, they would forfeit their standing upon entering into the marriage contract, But all women lack a civil personality and so the mariage contract merely confirms the natural sexual inequality oF bir. At the same time, Kant’ contractual view of marsiage premupposes that hig own explicit ntatement about women's “inherent lack of civil standing is aval. If eiilequalty between the sexes does not est, iF women are not property owners and their own masters, Kant 170 Fominisn andthe Mariage Carat cannot sustain is eri estegory of ‘pertona sight” and his account of the marriage contract. ee : : Personal ight, Kant writes, “is the Right to the psn of an extemal abject asa Thing and the we oc asa Peron? The mariage contrac tc diferent om tm other contract Inthe ‘arageconret an inves! aeuiten aight ton poron on nr ly Kant nts the Man seq a Wi ~ wh us beets ae, thing, comedy or piece of propery. But tecause bth panics become things, spl ac the oxeton of the other they both, acording vo Kan thereby egain thelr sanding “rational personales’. They make use of acheter nots propery but as perons. Kan’ discussion ofthe Meno personal ght and his argument about how so hy 9 arid couple mast be tinge and person is tortuous ~ and contradictory. He stats tha thee is always a danger that sexuality wll bring humans down to de level ofthe beats, The question, according to Kan is how fara man] can propery make wea [iis dene om nature without injury this manhood. Can [de sexes] el ‘hemelves ot themeles out on hie, or by some ther content slo tb mcf he eel aie? Kan nove at Such ase isnot permis. The reson he ives thm property it the peron cannot be separated from the indvidal owner To acquire part he man organi to take poneson onthe sexual propery of another individual ~ ito mee te ial at Property, a0 since the human organi ia nity Indeed, Kant gues that iis ipossibe to ure only part of person "without iaving at de same ine argh of isos over the nol person, for cach part of person i integrally bound wp with de whole Kant onelides that "the condition on whith we are eto make we of our sexual dese depends upon the righ to dispose over the person ata whole ove the wellare and happiness nnd generally ‘ver alte ccummances of ht peon"® ‘Kant’s rejection ofthe idea of property in parts of the person a ery al image he eles ying more tan 8 Contract of mutual sexual ae ~ ual ise of bexual proper (Eaculties) in the person ~ then there is not the : Foch to argue in ern of use of perons, and least ll 0 angie ‘etsons are wed as things To have tight vera personas hag 2 piece of property, ito have the power ofa shvermater but Kans husband dots not have nich power. Kant argues that iF Feminism and the Marriage Contract m loth pasties tothe contract acquire the same right they each give themselves up and win themselves back. They are simultaneotsly ‘owner and owned. They become persons again, unified into one wl "The reaon forall these very unconvincing theoretical manoeuvres ‘becomes clear once the story ofthe sexual contract has been told ‘Kant does his best to have his philosophical cake and eat, fhe i (o maintain his claim that all human beings have the ration capacity to act according to universal moral principles, then the two parties to the marrage contract must be of equal standing. More- ‘over, if their tanding isto be maintained, they must engage in an ‘equal exchange of property; or an equal exchange of themaelves as property. Therefore, Kant implies, women ike men, are individuals ‘or persons. I this the ease, there is no need for Kant to iit that the married couple are property for each other. Ifthe person is a unity, if sexual faculties are inseparable from the self, then why do not the husband and wife remain ae pertone for each other? The reason is not hard to discern. Kant excludes women from the tentegory of persons or individuals. Women ean only be property. Personal right exists only in the private aphere of marviage and domestic relations. Ta the public realm, individvals interact a8 salt, and even a tan whose circumetances place him in the Position of a servant does not also become property. "The #04 ‘contract, which creates civil freedom and equality, depends on the sexual contract, which creates patriarchal (personal) right civil ‘equality depends on personal right. What isto be master of oneself {in cil life becomes clear in contrast to men’s mastery af women in marrige. Kant’s pervasive influenee on contemporary politcal theory i not surprising in view of hie adept sleight of hand through ‘whieh the sexual contact is concealed by marriage as a eontcact of mutial sexual ne, ‘A. moral miracle (aa Wiliam ‘Thompson would call) tara ‘women’s natural subjection into marital equality. Nature bas given ls sexual desire 59 that we will procreate but this is not the only end for which 19 mary; “enjoyment in the Feiprocal use of the sexual ‘endowments is an end of marriage’, and itis legitimate to marry ‘with this end in view.2 Bue if men’ and women wish to use theie sual property they must marry. "Matrimony isthe only condition jn which use can be mad of one’s sexuality. If ne devotes one’s petton toanother, one devotes not oaly scx but the whole person: the two cannot be separated."3! Kant not only declares dat motal m minis and the Marriage Contact sexual use outside of marrage dehumanizes a man and a woman (they remain as mere property foreach other), but thatthe use is ‘in prineipl, although not always in effet, on the level of cannibalism ‘To consume a body with teeth and mouth instead of a sexual organ, merely provides a diferent frm of enjoyment. Only the marriage contract ean turn use of sexual property, in which ‘one is really ‘ade arr fangs othe other’, nto the use ofa person. * But it ie the husband who has ws of a petson, not the wife. Kant’s marriage contract establishes the husband's patriarchal right; le possesses his ‘wile’s body, which is to say her perton, asa thing, but she has no erepondng gh "Personal igh height of usband sa "And there is no doubt that he isa master. The unity of wil | represented by the will of the husband, Kant claims tata ‘relation ‘of equality as regard dhe mutual possession oftheir Persons, as well as of their Goods exists between husband and wife’. He reject the ‘apicion a surpicion voiced very loudly from a variety of quarters by the 1790s, when the Philssply f Law appeared ~ that there is something contradictory about postulating both equality and legal recognition of the husband aa waster, He states thatthe husband's power over his wife cannot be regarded a contrary to the natura Equality of « human Pile auch fegal Supremacy based only upon the natural super ‘ry ofthe fcutes ofthe Husband compared wih the Wile in the ‘sation ofthe common interet ofthe house and he Right to command is bared merely upon thi fact tates that, if ether spouse ran away, “the othe i and incontestably, to bring such a one back to the former relation, ne if that Person were a Thing’, it is clear that the right i only likely to be exerciaed by the master ofthe family. ‘The master, Kart stys, also has the tame right to bring back servants who abacond, “even before the reasons that may have led them to nin away,.-. have been judicially investigated’ In amplifying hie notion of personal right, Kant waes the revealing example ofthe difference between pointing to someone and saying “this is my father’, which means only that Thavea father and here be is, and pointing to someone and saying ‘thsi ry wife." To point to A wife i to refer to ‘a special juridical relation of a possessor to an | Penn andthe Mariage Gott 1 ‘hing, alihoogh in his case peso Kane SAE at preonel right i in rm poressing ama who hae Thun cl prema aa slave but to pomess a wif to pose ‘Sreane he ntual, hes no vi eran, alough se not Cale eve Nog atncked Kans maringe contact, decving that twas sat to are maiage “degraded othe Teel of a contet for ieee tue’ Hegel leo rejected the doctrine of the soca {Shs He denied that the sate sould be understood as ic was, SPURL! te, generated fom an oginal contac. Commentators on gas teoy invariably conchae that Hegel oppones contact THeSy tn absence of the we ory ofthe original etre such ie eSiuacion appre ennely resonable, and ican be eoten ‘hat apt etic of Kans mariage cota, Hegel ages, that erage ornate in a contact The extensive area of {eau gind tat he shares wih contact sotne, motbly the Seach constction fei society, maacliity and Femininity, En ton alo be overlooked Tiegl secu the hayone of contract theory, the den of the snail owner. Halo eject the contac eal of wc iiaar nahn ut contrac, athe wry down, On hse inses, he {he tne pound ere af eontac. However, Hegel's argunenis 2S Ry compromied by hr aceptance of the eral contact. In Shiro lacorporate women int cv society while exclacing the, Hep re-enaca the contradiction of Rants thor. Hegel stacks ibs chaim: tha invidale become propery in martage uth ‘Nanmaniage contact ike Kant, stumes that women a 22, Sed cant, and yetarindvdua Hegel dines the mariage {Sine outa vc exchange of propery, bat ll advestes 8 ‘Shura ha connate a wife aut to her husband Hegel regard ita shear to mbit dhe neil, comes: ul GySSe as owner ar pesonsting oe complet of fuman peromalty and ec ie. The individu as owner sme Pater that Hegel ells an “immediate sl-mitent eso ad aough his ene element, or omen inte id Ehud geronatity and in sol Ii, it nt and exe be the ‘inte Ty soe mariage nom conract entered it by owners ofthe ‘asl propery in ther pson, or 10 ae mons ts property, i ‘Stott to moupdertand mariage anit pee n meer ci ‘ie Purely eontet, marriage open tothe contingency, he object viewed im eminism and the Marviage Contact whim and caprce, of sexual inclination, ‘The marriage ceremony becomes merely the means to avoid unauthorized use of bodies (oF sexual cannibalism). On the conteary, for Hegel, marriage is a slstinct form of ethical life ~ past of the universal family/civi fociety/state~ constituted by a principle of association far rtuoved from contact. ‘The marriage contract, according to Hegel, could not be more dif ferent from other contracts the marriage contract “is precisely ‘contract to transcend the standpoint af eontract’* From the sand point of contract, wo individuals who contract together recognize ‘eachother as property owners and mutually wil that they shoul use cach other's property. The owner is related externally tos property and so, as ic were, stands outside the contract and is unchanged by it Similarly, the self of Kant's person-thing is unaffected by this

    S-ar putea să vă placă și