Exploitation is possible precisely because...contracts about property in the person place right of command in the hands of one party to the contract....The genius of contract theorists has been to present both the original contract and actual contracts as exemplifying and securing individual freedom. On the contrary, in contract theory universal freedom is always an hypothesis, a story, a political fiction. Contract always generates political right in the form of relations of domination and subordination....Carole Pateman (1988) The Sexual Contract, 8
In re-reading, because teaching, Pateman's Sexual Contract, I was struck by the claim that contract always generates 'political right in the form of relations of domination and subordination.' As I was contemplating her 'always,' I suddenly realized that I had not quite grasped the depth of her challenge to liberal contractualism. For, I had always (falsely) assumed that she was making the non-trivial, albeit limited, point that given empirical conditions of social hierarchy and unfairness, existing contracts re-inscribe forms of domination and subordination. That insight is indeed what explains the idea behind the first sentence quoted above: contracts produce inequality of power (income, status, etc.) because, regardless of the nature of formal (abstract) equality that is presupposed in the making of any contract, in the real world contracts always tend to reflect the relative bargaining positions of the parties to the contract. Or they tacitly create out-groups not party to, and subordinated by, the contract. This is why even commercial contracts can, and generally do, reinforce economic and political/social hierarchies, even if over time they may shift them in unexpected and unintended ways. Pateman is right to call attention to sexual and commercial exploitation grounded in contracts.
But while the limited point reveals that historically contractualism is compromised by the many injustices it legitimates, the point is itself not fatal to a liberal contractualism worth having. All it requires, in response, is more stringent conditions on the material and social/economic (etc.) pre-conditions of a legitimate contract. While this may be a step too far for many folk who are attracted to (say a Lockean) contractualism, so much the worse for them. (That's to say if you want to be an apologist for hierarchy, good for you.)
I now recognize that Pateman's point is more thoroughgoing. To grasp the more fundamental insight, it is worth being reminded of the conceptual difference between your average contract and your standard promise. The key distinction is that a promise has no enforcement mechanism outside the promising parties. A contract worth its name, by contrast, doesn't merely bring parties to it together, but also introduces a credible, enforcement mechanism (a binding arbiter, judicial review, etc.). This enforcement mechanism has to be a stronger (in the relevant sense) power such that enforcement is credible.
Thus, conceptually every genuine contract -- even when we only think of it as a source of justification -- presupposes subordination to some higher authority. (The absence of such higher authority – as in some international treaties – make some contacts more akin to promises than to contracts.) While sometimes one of the parties to the contract may well be able to supply the power and thus credibility of enforcement (alliances with a hegemonic power are like this), this does not undermine Pateman’s insight. While it's not the main point of most contracts, all contacts legitimize the contracting parties' subordination to a higher party.+ In most contracts this higher power is the judiciary, but in the founding contract this is the state/sovereign (etc.).
Now, for Hobbes – and unlike most critics (and friends) of Hobbes, Pateman understands the strengths of his approach -- (civil) subordination to the state is a feature not a bug. The whole point of the contract is the generation and simultaneous subordination to a higher power, a mortal god, in his fine words. Of course, Hobbes does not advocate subordination for its own sake; they are supposed to make possible the 'fruits' of peace. And if one has sympathy for consequentialist justifications that may be well good enough. (Obviously it ought not be good enough once one has confronted, say, Pateman’s or Mills’s reminders of the many ways in which both hypothetical and actual contracts have inscribed gendered and racial (etc.) patterns of exclusion and domination.)
Hobbes is no liberal so for him subordination to another is a price worth paying. But it is peculiar that subsequent liberals would sign up for a way of conceptualization the political order that at its core presupposes subordination to a stronger party. Whether one thinks liberalism as, at heart, a program that is in the business of preventing harm, or promoting freedom, or the preservation of human dignity (etc.), it has, in practice, an instinctive abhorrence of systems of hierarchy. This is, at heart, liberalism’s argument against feudalism and slavery. (They are not primarily opposed for their bad consequences.) Even the defense of commerce is, at heart, not utilitarian or focused on economic growth (or on the virtues it promotes)—it is rather grounded on the desirability of mutual exchange, which presupposes, if not always mutual recognition and the legitimacy of each side’s desires and longings, at least acknowledged indifference to these.
As a non-trivial aside, it is, of course, perfectly possible – I believe Jacob Levy taught me this -- that as a historical fact, liberalism arose as a mitigating project against an existing strong state (say, Tudor absolutism, French despotism, etc.).* That is, it’s the reality of a certain species of existing subordination that generates the liberal project. So, it may well be the case that practices of certain kind of subordination are the historical-social preconditions for the very desirability of liberalism.** So, liberalism may well be the bastard-child of state power, and aims to diminish it or re-direct it to less dangerous ends.
Be that as it may, Pateman’s conceptual point should give contractarian liberals pause: it may – let’s stipulate -- be legitimate to choose one’s self-subordination. But it is peculiar to inscribe one’s subordination (to a higher power, etc.) in the very ground and justification of the political order. That's, in fact, what nationalists do (recall). And it is especially peculiar if such self-subordination is inevitable given that one understands the order as a contract. (This is no less peculiar than the obsession of some contemporary liberals in finding justification for the use of state power against others.)*** That is to say, if liberalism is de facto a normative enterprise that presupposes the state and seeks to ameliorate it by promoting fair and just (and harm-reducing) institutions, we should avoid conceptualizations that commit us to hierarchy from the start--that's just asking for trouble.
+I have to admit I am not a big fan of the very idea of submission to the moral law, but at least it is neither a person nor a state.
*When Orwell (recall) reads Swift’s Gulliver’s Travels, he sees in it the (somewhat mad) reflection of living under the conditions of totalitarianism.
**I resist the tendency of some Marxist critiques of liberalism to see in liberalism as an arm of capitalism; mercantilism is the ideology of (state-sponsored) capitalism.
*** Obviously, a Republican can save contractualism by introducing popular sovereignty or a general will, etc. Such that one's subordination is simultaneously an assertion of self-rule. Today I am indifferent to such a move. Here I just note that
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