The story of the original social contract is often accompanied by the metaphysical concept of a state of nature, a fictional representation of human life before the existence of governments. Political theorists have used the concept to establish universal norms of human behaviour that are not influenced either by history or by the authority of a particular epoch. The aim "was to devise a criterion which was outside history, in terms of which to judge the moral status of the present political structure." (1) Hobbes provided a vivid description of an horrifically violent scenario in the state of nature. Human life, free from authority and regulation, was believed to be lived in "continuall feare, and danger of violent death." (2) Physical strength provided no relief from the terror of sudden death, for even the strongest man left himself open to attack when he slept. There was, however, the potential of an equitable solution to this perpetual chaos in Hobbes’ nineteen laws of nature. The first fundamental he cited was that man endeavoured to seek peace, though this appeared to be an impossibility whilst man remained in this extremely distrustful atmosphere. Hobbes’ second rule of nature, however, claimed that there was no form of morality that could prevent a man from doing what he felt necessary to protect himself. He proposed that the journey from the state of nature to civil society could only be made through the act of covenant, in which each member of society would agree to forsake a part of his unlimited freedom, his right of self-protection, and transferred this right to a third party. For Hobbes, the Leviathan was this third party, a strong sovereign in the form of a king or an assembly, ruling arbitrarily and demanding obedience in return for protection. Exactly how this covenant could be achieved within the state of nature was never made clear, nor was it relevant for Hobbes’ purpose.

The Leviathan was first published in 1651, which may explain the violence and suspicion described in Hobbes’ state of nature. The seventeenth century, and in particular the revolutionary decades of 1640-60, proved to be the most turbulent and unpredictable period in English history. The nation witnessed two civil wars and the impersonal judicial trial and execution of King Charles I. The old traditional patriarchal order was crumbling as the ideas of status, hierarchy and the divine right of kings were questioned. Eventually, according to orthodox historical accounts, the old order was overturned and replaced with the gradual growth of modernity. Within The Leviathan there is a real sense of the terror of potential chaos as the old order disintegrated. However, with the restoration of the monarchy in 1660, a relative normality slowly returned to England.

John Locke’s use of the state of nature is particularly revealing, for he did not envisage the violence within Hobbes’ perpetual war of ‘all against all’. He presumed that men were reasonable and would act relatively ‘civil’ within the state of nature. Often cited as the protagonist of the modern liberal order, Locke described a ‘peaceful’ state of nature in 1681. (3) The contrast between Locke and Hobbes’ state of nature clearly demonstrates how a concept that is supposed to be ahistorical, both in form and intent, can be altered in content by the historic circumstances of the author. Locke’s Two Treaties of Government was written and published when a sense of relative security was returning to England and, as Michael Walzer suggests (4), this enabled him to presuppose the peaceful nature of humans.

Locke’s attack on Sir Robert Filmer within Two Treaties has generally been seen as the final defeat of the old patriarchal order of status and hierarchy. Filmer was not the greatest defender of the traditional order, but he was well known and an easier target than a theorist of Hobbes’ calibre, whose great intellect would have made him a formidable opponent. Locke countered Filmer’s rather weak attacks ‘state of nature’ theorists as well as his Royalist arguments. Filmer had used the Old Testament to defend ‘the divine right of Kings’ by tracing political authority back to Adam. Political authority was in this sense, paternal authority. God, as the father of creation, had, according to the scriptures, granted absolute authority to Adam who, in turn, became the father of subsequent rulers. The idea that regal power was based on direct lineage to Adam had however, been largely discredited by 1660. Locke, in an interminable exercise of "intellectual tedium", (5) convincingly crushed Filmer’s arguments, although he avoided reference to the creation of Eve. Adam has been perceived as the ancestral father and Eve the ancestral mother of all people, not just of kings. The power relation between Adam and Eve was never based on equality. According to Genesis, Eve had been created from Adam thereby making him both a sexual partner and her father. The paternal rule of Adam over other men had been successfully challenged by Locke, but the paternal rule over Eve remained intact.

After disposing of Filmer, Locke proposed a new order of contractualism based upon the two liberal elements of liberty and equality. Like Hobbes, Locke considered liberty to be unlimited within the state of nature. Civil equality was also presumed, for all were of equal status under God. Within civil society, people are constantly joined together under contract, whether this be in marriage or in business. Similarly, within the state of nature, it is possible to enter all contracts with men of equal status. Within this scenario people could be generally trusted to make contracts, though there would inevitably be times of disagreement. Locke proposed the need for an adjudicator to settle disputes and to ensure that contractees fulfilled their obligations. Legislation was also required to ensure the legitimacy of contracts made. In Hobbes, violent human nature made the Leviathan’s rule by sword essential in order to make society secure. By contrast, Locke allowed a sovereign the power to ensure that people honoured their contracts. Working for the Earl of Shaftesbury, a keen advocate of parliamentary power, Locke envisaged the sovereign to be an assembly, regularly reviewed through election.

The Social Contract released men, with their consent, from the state of nature to form civil society. Locke imposed certain obligations upon those who consented. Unless the sovereign acted tyrannical, they would agree to his decisions. However, Locke predominantly imposed obligations on the sovereign, the opposite of Hobbes. The people under Locke’s sovereign would give, and regularly renew, their consent through elections, secure in the knowledge that they could enter the social act of contract and that the terms of the contract would be fulfilled by all parties concerned. Under this system, each individual, though under sovereign rule, would have the freedom to make contracts with whomever they chose, entering each contract on an equal basis with the other party. The social contract was intended to replace the arbitrary rule of the king and the hierarchical order of status; in this it was successful. The social contract was also intended to replace patriarchy and built the idea on the concepts of the individual and civil life. Here is where the controversy lies.

Feminists have asked why women were neglected from the original social contract, thus excluding them from participation in the very act that created civil society. Effectively, this omission denied women the civil equality that the original contract guaranteed to men. Women were expected to accept and conform to sovereign legislation, but their consent was not required, nor even considered relevant, to legitimise sovereign authority. Melissa Butler considers this to be a seventeenth century public relations problem, rather than a problem in Locke’s theory. The radicalism inherent within The Two Treaties needed the support that the inclusion of women risked alienating. Locke’s arguments could be adapted to incorporate women as they "leave open the possibility that women could have been party to the social contract." (6) This is, according to Butler, a clear demonstration of Locke’s genuinely universal individualism. However, Pateman dismisses Butler’s apologist arguments as "an almost perfect example of an uncritical liberal interpretation of Locke". (7) The individualism within Locke was specific, for only men of property were considered eligible to partake in political elections. Despite centuries of criticism and struggle against the class distinction and prejudice in Locke’s theory, his gender specification has been generally overlooked. Feminists have continually upheld the belief that patriarchal theory did not end with the confrontation between Locke and Filmer, but still exists in a relatively covert manner within liberalism. Their criticism has been "primarily directed at the separation and opposition between the public and the private spheres in liberal theory and practice." (8) In liberalism, as in feminism, the relationship between the two spheres has been in contention, for both public and private are simultaneously "separate and interwoven in a very complex manner." (9)

The private realm has historically been associated with women and their role in the home, in the family and with domestic labour. In contrast, men operate and control the public sphere and this includes "the state [which] is said to be public by definition". (10) If proof is needed that these spheres are still divided by gender at the end of the twentieth century, then it should be noted that child benefit is automatically paid to the mother to help her raise the child(ren), thereby pre-supposing her domestic role. The highest and most powerful positions within the judiciary, the government and business have always been filled by men. The premiership of Mrs. Thatcher along with the success of a number of notable female entrepreneurs, such as Anita Roddick, can and have been cited as evidence to the contrary. However, these are clearly exceptions for Britain has only ever been governed by one female Prime Minister and women now account for less than 7% of the nation’s 1000 richest people. (11)

Pateman questions the general assumption within liberal theory that the public and private spheres are both distinct and unrelated. Each sphere may have its own function and rules of conduct, although it is questionable that each has its own particular structure of power. Pateman asserts the idea that neither sphere can be defined in isolation, each having a direct effect, either overtly or covertly, upon the other. The private realm of the family cannot fail to be influenced by legislation originating from the public institutions. The child benefit system has already been mentioned above, although one should not forget that, with each general election, the political parties incorporate new family legislation within their manifestos. In recent years, the British political and judiciary system has established new laws concerning child abuse and overturned ancient conjugal rights that justified, or at least ignored, the problem of rape within marriage.

The fact that the public sphere has, and is continuing to effect the private sphere could be positively interpreted. Patriarchy was supposedly killed off in the seventeenth century, but only in the public political realm. The original contract theorists were primarily concerned with sovereignty and government; their ideals were considered irrelevant for use in the private realm. The liberal ideals of political equality, universal suffrage and civil liberties were therefore never consciously intended to enter private relations, as is clear by the fact that women were overlooked as signatories to the original social contract. Women were, in effect, politically dead until long after the social contract stories first appeared. Patriarchy has continued to exist and function within the private sphere and has adapted itself to the modern age. Men are still legally seen as head of the household and the class status of a married woman is defined by the class position of her husband. Women may now theoretically be seen as equal citizens, but are still, in effect, subservient to men. The separation between work and home that was solidified in the eighteenth and nineteenth centuries reinforced the patriarchal rule of men within the home. Women became more reliant upon their husbands’ wages as men adapted to their new role as sole provider. Even today, despite sexual discrimination legislation, men are still generally able to demand higher wages than women. The recent forms of interference upon private relations that has originated from the public sphere has begun to address the patriarchal inequality inherent within the private realm. However, Pateman rejects this viewpoint as a common misconception, claiming that patriarchy, far from being slowly phased out from the private sphere, has always been deeply rooted in both spheres.

Social activity within the public sphere is primarily based upon contract. Women may have been excluded from the social contract, but their participation in the marriage contract was actively encouraged. This appears to be an apparent contradiction for, if women are denied the civil liberties granted to men, then either contracts are permissible within the private sphere, thereby undermining the whole public-private debate, or the definition of contract as being between free and equal individuals is inaccurate. Explanations for this apparent contradiction have been unconvincing; some feminist critics claim that the result of the marriage contract is that the woman becomes a wife, but this is not evidence of her participation in the act of contract. They consider the two individuals who participate to be the groom, who accepts the bride as his wife, and the father of the bride, who ‘gives away’ his daughter. The marriage contract is therefore comparable to other contracts in the public sphere where ownership of a material possession, in this case the bride, is exchanged between two men. However, this account neglects the active participation of the woman. It is the bride and not the father who consents to the terms of the marriage contract with the words ‘I do’, and it is she and the groom who sign the registry. Even after this public display, the contract is not considered legitimate until the couple have consummated their marriage. The private sexual act is a requirement of the contract, without which either party can, with no further obligation, have the marriage annulled.

When a man enters a marriage contract, he adopts two conflicting positions in relation to his wife. He stands as an equal to her, for contract, by definition, can only be entered into within the public sphere by free and equal individuals. However, he simultaneously takes his dominant position as paternal head of the family within the private sphere. The domination is assured, even before children are bought into the equation, for she will automatically adopt his family name, acquire his class status and orally consent to obey her husband. The term ‘obey’ has only recently been made an optional element of the marital vow, although its utterance has only symbolic effect. The institute of marriage is identical with, or without, the overt inclusion of the vow of obedience. Theoretically, female subordination is inherent within the marriage contract. This is illustrated by the change in position that women experience through entering the marriage contract. The ceremonial necessities of marriage, imposed upon both the private and public spheres, recognise both women as a part of civil society and also their ability to enter contractual relations. However, the freedom and equality presupposed by the act of contract is only temporarily granted; after the marriage, the woman becomes a wife. She returns to the private realm in a new subordinate role. "The original contract can be upheld, and men can receive acknowledgement of their patriarchal right, only if women’s subjection is secured in civil society." (12) The contractual society envisioned by the classical social contract theorists was to be dominated by men at every level. In the modern form of civil society, men were liberal individuals freely entering contracts with other men. Women were never recognised as liberal individuals, even when they entered civil society, for in the process they contracted to subjection and confirmed patriarchal right.

From its inception, the liberal individual was always a masculine concept around which modernity was constructed. Feminists’ attempts to reform liberal society, must challenge this central patriarchal element if their efforts are to be rewarded. Pateman criticises contemporary feminists who "conclude that the only alternative to the patriarchal construction of sexuality is to eliminate sexual difference, to render masculinity and femininity politically irrelevant." (13) This would imply that the ‘individual’ should be an androgynous concept. Pateman believes that this would only lead to further complications, for some legislation cannot be sexless or ‘gender neutral’. She gives the example of legislation concerning pregnancy. Also, as society is already imbedded with patriarchy, women could only better their position by replicating that of men. This proposal, she rejects as inevitably leading to the strengthening of patriarchy at the expense of any progress that the women’s movement has made, and can make, in future.

Pateman provides a convincing critical analogy of the patriarchal structure of liberalism that is far broader and more detailed than indicated above. In response to her criticism that the liberal individual is has always been envisioned as a patriarchal category, she suggests that new gender specific definitions are now required. It is only after we have established what constitutes both the masculine and the feminine individual that we can re-evaluate the original social contract. Pateman declines to detail how a society incorporating both these forms of individual on an equal basis should be built. In a manner vaguely analogous to the Frankfurt school, she produces criticism in the hope that it may act as a guideline for others to construct a truly pragmatic theory in the future.

1. John Dunn – THE POLITICAL THOUGHT OF JOHN LOCKE p.101
2. Thomas Hobbes – LEVIATHAN p.89
3. See David Wooton’s Introduction to John Locke – POLITICAL WRITINGS pp.74-5
4. See Michael Walzer – REVOLUTION OF THE SAINTS p.300
5. I have paraphrased John Dunn’s description. See John Dunn – op. cit. p.68
6. Carole Pateman – THE SEXUAL CONTRACT p.21
7. Carole Pateman – op. cit. p.21
8. Carole Pateman – THE DISORDER OF WOMEN p.118
9. Carole Pateman – THE SEXUAL CONTRACT p.113
10. Zillah R. Eisentein – THE RADICAL FUTURE OF LIBERAL FEMINISM p.26
11. See magazine ‘RICH LIST 1999’ – The Sunday Times 11/4/1999
12. Carole Pateman – op. cit. p.181
13. Carole Pateman – op. cit. p.187

THE POLITICAL THOUGHT OF JOHN LOCKE

(Cambridge University Press, 1995)

THE RADICAL FUTURE OF LIBERAL FEMINISM

(Northeastern University Press, 1986)

LEVIATHAN

(Cambridge University Press, 1992)

POLITICAL WRITINGS

(Penguin Books, 1993)

THE SEXUAL CONTRACT

(Polity Press, 1988)

THE DISORDER OF WOMEN

(Polity Press, 1989)

POLITICAL IDEAS

(Penguin Books, 1986)

THE REVOLUTION OF THE SAINTS

(Weidenfeld & Nicholson, 1986)

The Sunday Times RICH LIST 1999 Magazine 11/4/1999