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Ratio Juris. Vol. 20 No.

3 September 2007 (402–23)

Contemporary Feminist Perspectives


on Social Contract Theory
JANICE RICHARDSON

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

in the argument. In their summary of the social contract tradition, Boucher


and Kelly (1994) therefore argue that there is not one tradition but that
social contract theories can be divided into broadly three areas: moral
contractarianism, civil contractarianism, and constitutional contractarian-
ism, though theorists within these traditions may overlap. Moral contrac-
tarians attempt to ground moral principles by employing the idea of the
social contract. In contrast civil contractarians use the idea of a historical
or hypothetical social contract to either legitimise coercive political author-
ity or to provide some test of that authority’s legitimacy (Boucher and
Kelly 1994, 4). Constitutional contractarianism is a juristic conception of a
contract between ruler and ruled that tends to be linked with civil
contractarianism and has sources in Roman law jurists, the covenants of
the Old Testament and the feudal contractual relations into which lords
and vessels entered (Boucher and Kelly 1994, 10).
Feminist readings of the social contract theory have made such an
impact that they can now be viewed as part of mainstream theory.1 There
has also been recognition of the work of female contemporaries of the
earlier contractarians who raised many feminist objections to their work
(Smith 1998). In an article on the social contract, Diane Coole (1994, 191)
made the point that “[f]eminist critiques of the social contract tradition are
inflected through developments in feminist theory itself.” This is neces-
sarily the case. However, this paper is an exploration of very different
feminist readings of social contract theory from the psychoanalytic
approach, discussed by Coole.2
This paper juxtaposes two different contemporary feminist readings
of the social contract tradition: the paradigmatic work of the political
philosopher, Carole Pateman, and that of the moral philosopher, Jean
Hampton. The aim is to address 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? The importance of feminist theory to
legal and political philosophy has already been recognised in the influence
of the work of these theorists. This operates not only as an “error correction
mechanism,” in which women are added into theories, but sometimes

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:

By LIBERTY is understood, according to the proper signification of the word, an


absence of external impediments, which impediments may oft take away part of a
man’s power to do what he would, but cannot hinder him from using the power
left to him, according as his judgement and reason shall dictate to him. (Hobbes
1994, 79)

This view of freedom as “an absence of external impediments” became


termed “negative freedom” (Berlin, 1969). As Quentin Skinner (1991) has
analysed, this represents a break from the civic republican tradition. For
Hobbes, it did not matter what type of government ruled providing you
were not interfered with as an individual. Anne Phillips has illustrated the
republican response:

If freedom were simply a matter of non-interference, we might have to say that a


slave left alone by a lazy or absentee master enjoyed full liberty; or that a wife
cherished by her accommodating husband was as free as a bird, even when the
laws of her society denied her any independent status [. . .] Servitude is servitude
even when the master is accommodating. The only free people are those who
govern themselves. (Phillips 2000, 282–3)

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.”

1. Pateman’s Critique of the Social Contract


Carole Pateman’s The Sexual Contract, written in 1988, provides a paradig-
matic reading of the social contract tradition and of Thomas Hobbes in
particular. I will argue that her work is still important, not simply for
the way in which she rewrites the story of Leviathan, which Hobbes

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.

© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 3
Feminist Perspectives on Social Contract Theory 405

acknowledged as fictional,4 but for the way in which she highlights


women’s subordination as a political problem. As is well known, Hobbes’
social contract is a tale of life in a state of nature, a state without laws. For
Hobbes, life in the state of nature is famously, “solitary, poor nasty brutish
and short” (Hobbes 1994, 76) because human nature is acquisitive, selfish
but also rational. We fight for three reasons: competition for resources,
diffidence because we do not trust each other and hence need to fight for
security and for “glory” (Hobbes 1994, 76). Hobbes, like other social
contract theorists, employs the fiction of the social contract to explain why
law is needed. His aim was to provide a “scientific” argument as to why
laws should be obeyed at a time of civil war in England.5 In this “state of
nature,” no one would trust another to perform his/her side of a contract
first and so there is no way to co-operate to produce a commodious life.
In Hobbes’ view, the only rational way forward must therefore entail the
relinquishment of freedom to a sovereign, an entity with the power to
enforce contracts. So, Hobbes revolutionary move was to start “bottom
up” with an image of free and equal individuals who enter into a social
contract with each other to give up their freedom.
Pateman points out the discrepancy of Hobbes’ social contract with
regard to women. In essays (Pateman 1985, 1991) and The Sexual Contract
(Pateman 1988), she outlines the central significance of Hobbes in the
exposition of her feminist analysis:

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.

© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 3
Feminist Perspectives on Social Contract Theory 407

necessarily a limitation upon this ability to alienate freedom because


Hobbesian individuals consistently prioritise survival. We cannot enter into
a contract not to resist someone who puts our lives in danger (Hobbes
1994, 82). What the social contract and employment and marriage contracts
have in common is that they evoke the idea of consent of the weaker party
(the governed, employees, or traditional housewives). These parties are
deemed to agree to obey, even when there is no real alternative. Hence
these contracts are concerned with the management of daily subordination
but formulate this in terms of the ability of the weaker party to exchange
freedom and/or human abilities, such as the ability to perform work, as
part of a contract. Pateman’s analysis of the logic of contract therefore
prompts us to consider the historical links between employment and
marriage contracts, which both arose together and presumed each other.10
Pateman is concerned with the ability of women, and of workers, to have
a voice in the everyday decisions that affect them. This is clearly illustrated
in her earlier work (Pateman, 1970) in which she argues in favour of
participative democracy and points to empirical research in support of the
argument that people need to learn the skills necessary to have a say in
their lives. In Pateman (2002) “Self-ownership and Property in the Person:
Democratization and a Tale of Two Concepts” she repeats the philosophical
move that is so central to The Sexual Contract, in which she extends
Macpherson’s (1962) critique of the “possessive individual” to include a
detailed consideration of women’s position as well as that of the working
class.
Whilst Macpherson has been subject to “intense and sustained criticism”
(Tully 1993, 71) it is unnecessary to consider the historical debates (as to
when people became viewed as possessive individuals) to show how
Pateman broadens his concept to look at the logic of the social contract,
marriage contract, and employment contract. Macpherson employed some
of the lessons learned from Marx to argue that Hobbes read back into the
social contract the views of “human nature” (as selfish, individualistic,
acquisitive, and rational) that dominated his own time. Macpherson argues
that these attributes were not natural but reflected ways of acting that were
encouraged by the prevailing economic conditions, which he associates
with the emergence of capitalist markets. The individual was viewed as
owning his/her abilities, as objects (or potential commodities) rather than
human attributes. Hence, with Marx, Macpherson argues that Hobbes
viewed people as “possessive individuals”: people who possess their
abilities, as if these abilities were property that is owned and could be
alienated and exchanged for a wage. Macpherson’s work traced this image
of the individual to Hobbes and discusses how this strand of his thinking
then influences later philosophers. As Marx (1976, 415–6) argues, this

10
For such an historical analysis see Deakin 2002, 177–96.

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408 Janice Richardson

image of the individual appears to justify employment contracts as a


temporary exchange of abilities for money. It covers over the fact that
workers cannot be separated from their abilities and must “turn up” and
be told what to do. Similarly, such an individual can agree to alienate most
(but, as discussed, not all) his/her freedom to a sovereign.
For Pateman, of course, it is this renting of human beings (that is justified
by virtue of the legal fiction that they are merely exchanging such “property
in the person” for a wage) that is problematic and in fact represents
training in subordination that stymies active citizenship. By virtue of this
contract, the worker’s ability to learn the skills and confidence to partici-
pate actively in democracy is restricted. Pateman then goes further in
arguing that the emergence of the employment contract cannot be under-
stood without consideration of the marriage contract and its related role in
women’s subordination. Under the doctrine of coverture, married women
were not even viewed as owners of their abilities as, she argues, the
contract was more akin to a civil slave contract (Pateman 1988, 118). In the
development of the welfare state, the marriage and employment contracts
assumed each other (Deakin 2002). This analysis is then linked to contem-
porary debates in political theory around the meaning of “self-ownership.”
Pateman (2002) argues that “self-ownership” refers to the same fiction: the
idea that workers are “possessive individuals” who own “property in the
person” that can be alienated in a market place. Radically, she asks what
would happen if we refuse to accept this legal fiction. So, she argues, the
main political problem is not that of poverty or exploitation, per se, but of
subordination, which then opened the way to exploitation of both male and
female workers and, by virtue of the traditional marriage contract, of
women.11
Pateman has been widely criticised for her apparent pessimism.12 She is
viewed as analysing women’s position in a manner that assumes that the
creation of the “sexual contract” has actually occurred as a historical event
(alternatively, she is seen as producing an analysis of relationships, treating
them as if such an event had occurred) with serious consequences for
women. Her rereading of Hobbes is understood to highlight such a
foundational move: the creation of the social and hidden sexual contract,
which then condemns women to being unable to take part in the social
contract without exploitation. This view of Pateman is understandable if
one concentrates upon Pateman’s retelling of the story of the social
contract. However, this argument is undermined when it is acknowledged
that Pateman’s central theme has always been the need for freedom and for
a genuine participative democracy. Her discussion of self-ownership

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

explores a barrier to the possibility of workers and women having a voice


in the workplace and the home.13
In the introduction, I stressed the continuing relevance of exploring
feminist readings of the social contract today. Pateman has recognised that
the sexual contract, as identified by her in its original form, no longer
operates in the same way. She refers to the historical changes that have
taken place within the labour market and within the home, with the advent
of globalisation, commenting that it is too soon to know who will be the
winners and losers (Pateman 1996, 205). In direct challenge to the reduc-
tive characterisation of Pateman’s work as unduly pessimistic, it may be
asserted that her work remains important in illustrating the problem of
subordination in contract. Pateman’s analysis does not commit her to the
position that no woman can ever adequately negotiate a contract at work
or home. On the contrary, she is analysing the logic of these contracts
and the way in which they developed historically as the management of
subordination.

2. Jean Hampton: The Possibilities of the Social Contract Procedure?


In the introduction the question was posed as to whether anything could
be retrieved from social contract theory for feminism. Should the image of
free and equal persons, whose political obligations must be rooted in their
own consent, be abandoned? According to Pateman’s (1988) analysis the
prospect for social contract theory appears bleak as she examines political
thinkers to ascertain why an argument of such promise failed to be
revolutionary. Her earlier work on political obligation undermines the
idea that we can somehow be viewed as consenting to the political status
quo where our participation in democracy is largely limited to the vote
(Pateman 1985). This “consent” is undermined in exactly the same way as
our “consent” in employment is limited and historically echoes the way in
which women’s “consent” to marriage was manufactured in situations in
which there was little choice. Pateman’s focus is still upon the political
question of “who has a voice?” (Pateman 2002). She is therefore critical of
the way in which such a political question becomes marginalised in
political theory when ethics, in particular Rawlsian methodology, domi-
nates the debate (ibid.).
Pateman’s question: “Who has a voice?” continues to be useful for
feminism, as are Pateman’s other analyses of the social contract, once they
are read in the context of her other work on political obligations (Pateman
1985, 2002) and stripped of the psychoanalysis and retelling of the social
contract fiction (Pateman 1988). Pateman’s political analysis can be

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

contrasted with a feminist reading of the social contract from an ethical


perspective to ask whether anything of this project can be retrieved. This
involves questioning whether it is possible to move from an analysis of the
way that the social contract has been used to justify subordination to a
more radical deployment of it without losing sight of Pateman’s political
question: “Who has a voice?” Central to this question is the image of the
individual and of freedom, implicit in the frameworks employed.
Hampton has written both on Hobbes and on moral theory generally
(Hampton 1988).14 This paper will focus upon Hampton’s arguments in
her influential paper “Feminist Contractarianism” (Hampton 2002). Her
starting point is different from Pateman’s reading of Hobbes in that she
discusses him as a moral thinker, rather than as a political theorist.
Hampton’s paper starts by looking at the paradigmatic work of Carol
Gilligan, focusing upon actual examples of moral reasoning. When asked
the question: “When responsibility to oneself and others conflict, how
should one choose?” eleven-year-old Jake confidently replies that “[y]ou go
about one-fourth to the others and three-fourths to yourself” (Gilligan
1982, 36).
Amy, another eleven-year-old, replies that:

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)

Gilligan’s “ethics of care” has been influential in political theory generally.15


Gilligan (1982) started by criticising the empirical research of Kohlberg
(1958, 1981), who judged children’s “ethical maturity” on the basis of their
ability to give answers to questions posing a series of moral dilemmas.
Gilligan argued that the girls had learned a “different voice” and that their
moral reasoning was based upon caring for others, with the aim of keeping
intact human relations rather than employing abstract criteria of moral
laws. Battersby (1998, 66) has argued that, when Gilligan positions women
as being concerned with empathy and care in contrast with men’s duty
based concern for moral law, she has much in common with the work of
Kant on women. Kant argued that women have no sense of duty or justice

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.

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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

The influence of Kant in Hampton’s comments about gratitude is


perhaps more important because it highlights her lack of attention to
precisely the problem that Pateman describes in so much detail: the social
analyses of “consent” and “possessive individualism.” This involves con-
sidering the tension in Kant’s work between the importance given to the
self-worth of all persons and his attitude towards both poverty and
women’s traditional position. Kant (1964) considers the issue of gratitude
in The Doctrine of Virtue. As Victor Seidler (1986, 68–9) points out in his
compelling analysis, Kant Respect and Justice, it is difficult for Kant to think
about obligations to the poor because the idea of making someone’s
welfare dependent on others’ generosity compromises his idea that as
individuals we are all equally free to prove ourselves before the moral law.
Kant therefore encourages the rich to give to the poor in a way that
preserves the recipient’s self-respect. Seidler argues that Kant’s ideas about
individual independence were threatening to traditional authority relations
(highlighting the radical aspect of Kant) but easily work to legitimate
capitalist relations of dependency, given that independence and individu-
ality become read as possessive individualism. In a society in which we
compete with others, their help is viewed, as Kant viewed it, as threatening
to independence, a point that will be considered further in the conclusion.
Seidler’s analysis of Kant has some resonance with Pateman’s critique of
Hobbes. There is an analysis of how both Hobbes and Kant have revolu-
tionary potential that is then lost. Central to both arguments is the way in
which the self and freedom are conceptualised in their images of the social
contract.

3. Feminist Criticisms of Hampton’s Contractarianism


Given that Hampton’s “Feminist Contractarianism” opposes an ethic of
care, it is unsurprising that it has received criticism from this perspective.
Sample (2002) argues that Hampton’s test is based upon the image of the
self-interested individual, who is imagined as consenting to the contract,
who is still the “economic man” in disguise. Sample is also concerned that
Hampton proposes a separation of emotional ties and reason which does
not resonate with women’s lives. She raises the same objection as that
argued by Victoria Held against contractarianism more generally (Held
1987, 111, cited by Hampton 2002, 364). This argument is based upon the
view that social contract theorists use the idea of contract as a thought
experiment to abstract individuals from a social context. Sample and Held
then argue that the social contract theorists’ next move is illegitimate in
that they rely upon unacknowledged patriarchal assumptions about the
actions of their supposedly “abstract individuals” to speculate as to their
decisions. In reply to this line of criticism, Hampton denies that she falls
into this trap, arguing that her use of contract as an ideal is to serve as a

Ratio Juris, Vol. 20, No. 3 © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd.
416 Janice Richardson

test. It is to be used to determine whether the parties in a relationship are


actually demonstrating respect for each other as persons. The abstraction
from everyday context in this thought experiment is justified because it
allows the actual relationship to be compared with an ideal in which the
costs and benefits of the relationship are just.
It is possible to highlight a different problem with Hampton’s image of
the individual. Instead of focusing upon the hypothetical individual in the
contract, it is useful to consider the position of the woman whom Hampton
supposes will use her test. She appears to be Kantian to the extent that she
employs reason in order to test her domestic relationship, using Hampton’s
procedure. Instead of assuming the use of the faculty of reason to abstract
oneself from one’s circumstances, it would be better to think of the test as
being a tool that could be employed in discussion with women in a similar
situation, in what used to be called “consciousness raising” groups. This
recognises that change is not easily brought about by individual analysis
but that “who we are” emerges from our relations with others. Hampton
(1997) recognises this when she contrasts the effect of upbringing and
sexist and racist stereotyping upon our views of self-worth, again cham-
pioning the need for self-interest as well as concern for others, to be part
of a moral theory.
Hampton’s conception of an ideal contract that tests for respect for
the equal worth of personhood can be contrasted with Pateman’s
analysis of the logic of contract, discussed above. Hampton is critical of
Pateman’s view that the contractual exchange must involve an instru-
mental use of one party to the contract, stressing that her contractual
test is an ideal, which asks us to envisage equal respect for persons
(Hampton 2002, 354). Hampton does not deal with the fact that
Pateman’s analysis focuses upon a type of contract (such as employment
or traditional marriage contracts) in which one party exchanges “property
in the person” for a wage or (in the case of housewives) for other
financial support. As outlined above, Pateman follows Marx (1976, 415–6)
in viewing the legal fiction of “property in the person” as insidious
because it serves as a justification for (and management of) subordination
(given that “property in the person,” such as the ability to work cannot
be separated from the body and therefore involves taking orders). This
subordinate relationship is regulated by contract, including contractual
terms that the courts are willing to imply into the contract, such as the
employee’s “duty to obey a reasonable order.”20 Until relatively recently,
this included the implied term that a wife could not revoke “consent” to
sex with her husband.21

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

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Feminist Perspectives on Social Contract Theory 417

Hampton’s argument that the Kantian ideal of the equal worth of


persons provides objective grounding for feminist demands does not
undermine Pateman’s position. Pateman could agree with this claim but
also argue that further analysis of actual contracts is required in compari-
son with Hampton’s ideal. Although Pateman has not engaged with
Hampton’s work, it is clear from Pateman’s paper (2002) that she could
argue that employment contracts (and traditional marriage contracts)
would fail Hampton’s test of equal respect for personhood. Hampton does
state that her contractarian test is

informed by a conception of the person prescribing the creation and sustenance of


institutions that respect the worth and legitimate interests of persons. Thus a
society that has an unregulated market economy, or wholesale allegiance to the
doctrine of freedom of contact, or patriarchal institutions, or racist practices will not
function so that each gets what she is due as a person; accordingly it would be
criticised as unjust by this theory. (Hampton 2002, 361–2)

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

4. Conclusion: The Social Contract and Freedom


There has been useful work asking why women give unlimited care in the
home (Bartky 1990). It is possible to raise the corollary of this question. If
it is accepted that men in our culture are suspicious of help generally (Kant
1964, discussed above), why have they been willing to accept unlimited
care from women in the home? The answer returns us to Pateman’s
analysis and the traditional understanding of “women’s dependency” and
the marriage contract; the way in which “women’s work” fails to be
recognised as work. Pateman (1988) traces the historical moment at which
independence starts to be viewed as the ability to earn a wage, even whilst
there is dependency upon the employer. Hampton’s contractarian test is
posed at a time when both marriage and employment contracts are subject
to change. Women can question if they are being treated justly when they
can imagine what it would be to be treated with respect as a person.
Linked with this is the (welcome) modern view of motherhood as one
life-style option rather than part of a pre-modern duty that is viewed as
both natural and inevitable, reflective of one’s status in a hierarchical
order.23 As John Stuart Mill observed in 1869:

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)

Similarly, Charles Taylor contrasts the “social imaginary” that, he argues,


existed prior to the social contract theorists with today’s social imaginary:

Hierarchical complementarity was the principle on which people’s lives effectively


operated all the way from the Kingdom to the city to the diocese to the parish to
the clan and the family. We still have some lively sense of this disparity in the case
of the family, because it is really only in our time that the older images of
hierarchical complementarity between men and women are being comprehensively
challenged. (Taylor 2004, 16)

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

increasingly combined multiple roles [. . .]” (Gillespie 2000, 217). However,


this change is accompanied by a tension in the way in which women are
viewed politically. At its extremes this can be characterised as a conflict
between either viewing women as self-sacrificing members of a community
(in the old dreams of communitarians) or, at the other extreme, as the
(possessive) individuals of liberals, who own and can sell their abilities and
to a limited extent their freedom.24 Whilst these caricatures may not
represent all such positions within these diverse political theories, as
Hampton’s work itself illustrates, it is clear that they are images of the
individual that feminists must treat with caution.25
Hampton’s contractarian test is a tool to help us imagine what would be
acceptable if we were to be treated as free and equal persons who could
consent to the way in which we live. To the extent that this image has some
bite it is because it encourages a leap of the imagination. Those employing
a thought experiment are to gain critical distance from their current
position and imagine it otherwise. There is an assumption that this is
possible, for example, that women are not so oppressed in their society that
it is impossible to imagine themselves as persons who are to be treated
with respect. To be fair, Hampton is clear that her test cannot replace social
analyses of why individuals are in such a position as to need the test.
A different way of thinking about the emergence of the individual and
of freedom, than is implicated in Hampton’s work, is suggested by recent
feminist reworking of some aspects of Foucault’s later work (see Taylor
and Vintges 2004). It is possible to view consciousness-raising as a
“technology of the self,”26 a way in which women challenge the status quo
by examining the assumptions that are made about the way they live and
strategies for living. This evokes an image of selfhood as something that is
carved out over time, through our relations with others, in which Hamp-
ton’s test could take its place as a heuristic device. This does not preclude
the (perhaps more useful) analysis of social structure that characterises
Pateman’s reading of the social contract theorists, along with the way in
which women were positioned within this contractarian discourse.
According to Hobbes, we are free if nothing impedes us. For Kant,
freedom produces an antinomy: We experience ourselves as being both free
and unfree. This is resolved by conceiving of ourselves as split: with both
a phenomenal self and a noumenal self. Our phenomenal self is unfree in
that it must obey laws of nature but our noumenal self is free. This is

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.

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420 Janice Richardson

achieved by an abstraction from our situation. As Seidler (1986) illustrates,


this framework allows Kant to ignore issues of inequality. Social inequali-
ties and issues of dependence, both of women and the poor, are viewed,
in Kant’s split system, as being aspects of the phenomenal and not
noumenal world. As our freedom is linked with the use of reason in the
noumenal world, daily subordination is deemed irrelevant. As Seidler
(1986) illustrates, this move produces a point of tension in Kant’s work that
he came to recognise (Kant 1964). In Hampton’s test, the separation is no
longer between the phenomenal and noumenal but between emotional ties
and reason. So, it does not straightforwardly map onto Kant’s way of
dividing between the noumenal and phenomenal selves. The way in which
Hampton imports Hobbes’s concern with self-interest rather than duty
marks a clear break with Kant, as does the way in which, for the feminist
Hampton, “duty” becomes associated with emotion rather than reason.
Foucauldian “anti-humanism,” in which the self is viewed as con-
structed by the discourses in which we come to view ourselves as objects
of study (along with the daily habits and routines in which we engage –
see, for example, Foucault 1977) produces a different view of freedom from
that of Hobbes or Kant. Freedom is then conceptualised as the ability to
challenge the framework in which one’s identity is fixed, by recognising its
historical contingency, clearly not something that can be done on one’s
own.27 From this perspective Pateman has been viewed by some feminists
as basing her arguments upon an incorrect rigid definition of what it is to
be a woman (for example, Gatens 1996, 76). In contrast, it can be asserted
that her systematic analysis of the way in which women have been
positioned with regard to the social contract does not assume that women’s
nature or position in society is fixed. It provides a grounding for future
development by continuing to ask: Who has a voice in daily life? It is this
common concern with subordination that motivates Hampton’s test and
her insistence that self-interest is relevant to morality.

University of Exeter
School of Law
Exeter
United Kingdom
E-mail: janice.richardson@exeter.ac.uk

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