Pateman and Mills on the Social Contract PDF

Carole Pateman (1940–) and Charles W. Mills (1951–2021), writing both separately and together, have constructed major critiques of one of the most important and politically effective concepts in modern political theory: the social contract. Their theorizations originated in political movements relat...

Carole Pateman (1940–) and Charles W. Mills (1951–2021), writing both separately and together, have constructed major critiques of one of the most important and politically effective concepts in modern political theory: the social contract. Their theorizations originated in political movements related to the identity politics of gender and race, understood by them within postcolonial and decolonizing perspectives. This chapter will start from the beginning by explaining the bare-bones terms of contractualism. It will briefly review the classical political theorists who have contributed in different, broadly overlapping ways, to what the concept has become at present. And it will show how the work of Pateman and Mills has held liberal egalitarianism to account against its own ideals. The social contract Social contract theory, as a significant political force, emerged in revolutionary circumstances during the seventeenth and eighteenth centuries in north-west Europe. In that context, those theorizations were not merely controversial but rather treasonous, and thus punishable with penalties up to and including death. Most contractarian authors, now famous as political theorists, endured some periods of personal repression and involuntary exile. The major theorists were Thomas Hobbes (see more in Chapter 5), John Locke (see more in Chapter 7), and Jean-Jacques Rousseau (see more in Chapter 9). KEY CONCEPT: Contract A contract is a mutual and binding agreement between two or more parties that something will be done, or not done. It may be explicit or implicit, but either way mutual obligations are incurred. In a more specific sense, it also refers to a commercial agreement for supply of goods or performance of services, such as employees render to employers, or sellers render to buyers, in exchange for money or articles of value. In both cases non-fulfilment of an obligation will have consequences, usually legal enforcement. Where there is no legal enforcement, the social contract explains how individuals may legitimately generate sovereignty and thus legality. In this contractual way, legality and sovereignty arise to enable and protect commercial relations of ownership and exchange. For classical theorists, the English Civil War (1642–1649), the Glorious Revolution (1688–1689), and the American Revolution (1776–1783) were foundational events. These liberalizing processes continued through further revolutionary wars in Europe, the Middle East, and the Caribbean, including widespread anti-colonial struggles throughout the Americas (Hampsher-Monk, 2006). Continuing into the nineteenth and twentieth centuries, there were wars of national liberation from colonial powers, civil wars of nation-building in Africa and Asia, and the establishment of post-Soviet successor states (James, 2001). Overwhelmingly these political processes are not peaceful, and anti-authoritarian liberalization comes with considerable violence. 10.2.1 Peaceful agreements and equal individuals The social contract presumes human individuals are capable of making a formal agreement or promise, and of understanding the obligations into which they have therefore entered. Agreeing in that way is a social activity that exists only as and when individuals make the requisite declarations autonomously and then perform in full what the obligations require. There is thus a transfer of a right, and consequent imposition of a duty. Of course, any individual may fail to fulfil an obligation. Without giving an excuse that convinces others of continued good intentions, that person will then rightfully suffer punitive consequences. But if such non-compliance becomes widespread, and thus general, the institution of agreement-making itself will collapse. Once a tipping point is reached, the words ‘I agree’ and ‘I promise’ will become meaningless (Taylor, 1976). Contracts are thus fragile, because individuals who are damaged by non-fulfilment must resort to their own powers of coercion to secure the expected benefit. Or they may resort to others whom they authorize to act on their behalf. That latter circumstance can arise only if others promise to help. These encounters—agreeing, contracting, promising—constitute contractualism. Contractualism admits, whether overtly or covertly, the existence of considerable power differentials between individuals (Nozick, 2013). Those power differentials may be physical, intellectual, or psychological. They may also be the result of prior social and economic advantage or disadvantage, or luck or misfortune. Or individuals may gain power as they fulfil the contracts which they make, or indeed lose such advantages when others do better elsewhere at their expense. If all this is so, then in what sense are the contracting parties equal? The answer is that the scenario is circular. The equality in question is the very abstract one that—by definition—each individual already possesses by being capable of entering into a contractual agreement. That abstraction arises from quite concrete practices and circumstances. The practice of making and performing contracts goes back to the beginning of written records, approximately the third millennium bce. The formalization of this practice emerged gradually in post-Roman times as commercial trading developed in western and southern Europe. Monetary validity in and through these practices is itself an artefact of social processes of promising and agreeing, contracting, and performing (Hont, 2015). KEY CONCEPT: Commercialism Commercialism is the spirit, or attitude of mind, that values and validates trading activities. These are buying and selling merchandise through contractual transactions, typically involving monetary exchange, and to mutual advantage. As a predominating value it excludes or even devalues other ways of behaving and living, because it links utility to objects, objects to wealth, and wealth to security. Philosophically, it references a materialism of desires fulfilled by objects, and an avoidance of pain by securing future supply. That view of human activity invokes a utilitarian psychology and moral framework mirroring a mechanical model of transactional accumulation. In that way, it reinforces a bodily individualism, which abstracts from societal relationships. It also presumes a competitive urge to economic advantage, and a fearful view of others as potential competitors. However, not all individuals will in fact see their essential, or even circumstantial, identity and values wholly or even partly aligned with commercialism (Scanlon, 2000). Many important human relationships, based on trust, honour, loyalty, love, and kinship, including practices of charitable giving, even doing ‘good turns’ for others, are typically defined in opposition to it. The abstract theorizations of contractualism mirror a world of idealized commercial stability (Macpherson, 2010). Remember, however, that this ideal of peaceful market-trading was accompanied by, and arose within, widespread political processes of intimidation and violence. As opposed to commercial contracts for an exchange of goods or services, with respective obligations to fulfil the stated terms, a social contract institutes a governing body. That body is thus legitimately empowered to maintain internal order and external defence with force of arms. This is possible precisely because all contractors are obliged, by virtue of the contract, to aid enforcers designated by the governing body, or to be enforcers themselves, if required and capable. Political obligation is thus a consequence of the social contract. Acts of the sovereign law-maker, created through that device, must be obeyed. Disobedience will result in forceful punishment or other punitive sanction. Citizen-contractors are therefore obliged to obey governments whose legitimacy arises from their own action in making and fulfilling the social contract. Those who might choose non-fulfilment are at risk from their fellows, acting as enforcers. If that were not the case, then government and society itself would unravel and collapse. Here we have reached a paradox. Most human societies have, or have had, some authoritative promulgation of rules, or at least some respected adjudication on custom and practice. Repetitive obedience under those terms constitutes rule-governed behaviour and therefore some degree of stability. What need, then, is there to fulfil social contract theory? And why was it politically revolutionary? 10.2.2 The people and the state In early modern north-west Europe, monarchical absolutisms, based on the doctrine of the divine right of kings, were overthrown, and new institutions were set up after violent revolutions and ensuing civil wars. Or absolutisms were sometimes made to concede to some devolutions of power in more gradual and less violent ways. Those liberalizing processes have generated constitutional landscapes that can be rationalized as consistent with the social contract. In that way their institutions and procedures are rendered legitimate. The social contract, in its various forms, did important service in this revolutionary and/or evolutionary politics, because it was developed in the first place to be a potent assemblage of theory and practice (Pettit, 2012). KEY CONCEPT: Sovereignty Sovereignty refers to the possession or exercise of supreme power, such as that of a ruler or monarch. Sovereignty and the sovereign are thus identified in a physical individual. In republican or other constitutional arrangements, through which monarchy has been constrained, sovereignty refers to the power of the state. In this way, state sovereignty is heir to monarchical sovereignty. The state thus claims and exercises supreme authority, usually within a bounded territory. Sovereign power may be legitimated, according to various criteria, such as popular ratification or continuing consent. Or it may be branded illegitimate, because of usurpation, when a legitimate sovereign power is overthrown, or because it has become indubitably tyrannical, that is, exercising absolute power detrimental to the public good. As a device, the social contract solved two problems. One problem was that of legitimating non-absolutist government, which rejects monarchy or limits it constitutionally, and thus shares out power more liberally. The other problem was that of civil war and anarchy, which only sovereign authority could solve through institutionalized law-making and enforcement. It would do this by having an obligated citizenry ready to defend the government that they themselves as individuals had authorized. Thus by exercising the social contract, the people would preserve the peace and promote the public good. However, if, in terms of sovereignty, the people are sole legitimators, as a matter of theoretical reasoning, then two practical questions arise. Who exactly are the people? What exactly do they need to agree to? Both questions raise problems of definition, because inclusion will have bounded limits, and therefore exclusions. Which individuals or groups are to be excluded altogether, or not included as fully entitled members? And what matters are excluded from the terms of the agreement and are therefore not subject to governmental control? KEY CONCEPT: The people The people is a collective of individuals, whether subjects of a singular ruler, or citizens of a republic. Subjects may have no relationship to rulers other than obedience, or rulers may construct a relationship with their subjects that allows or requires some elements of consultation and participation. In republics, forms of popular assembly were instituted in place of monarchical authority. The people, in some larger or smaller bodies, were then invested with sovereign authority. As a collective, ‘the people’ was typically defined through exclusions so that only some of the populace could be full and equal citizens. Governing activities were then undertaken by very small groups and/or a single individual, said in some sense to be representative, and chosen through a variety of formal procedures. Social contract theorists have been quite precise about the contractual terms of agreement. But from the beginning, and over time, those theorists have been notably obscure and indeed hypocritical concerning the definition of the people, in theory and in practice. This hypocrisy arises through discriminatory exclusions and subordinating inclusions (Canovan, 2005). That is where more recent theorists—in particular, Pateman and Mills—come in. 10.2.3 Some are more equal than others In their texts, the classical writers listed some exclusions in explicit terms. The first was the servant-class, that is, persons in domestic and other forms of servitude, and therefore of inferior legal and social status. Hence their economic agency as contract-makers was highly restricted or non-existent. It followed that their agency in relation to participating in the social contract was insufficient. This was because contract-making presupposed individuals with access to private property as owners of exchangeable objects, including money. From the logic of the social contract, it did not follow that servants were also excluded from an obligation to obey the sovereign institutions that the social contract-makers had legitimated. Hobbes derives the need for a social contract from an individualism of fearfulness that someone’s life, liberty, and possessions are at risk from any other person. He understands persons, however, not as autonomous individuals, but as already within a family structure of fatherly rule. A father rules over his children and servants, thus comprising an ordered household or ‘family’. In Chapter XX of his masterwork, Leviathan, published in 1651, he writes that a family ‘consists of a man, and his children, and his servants together; wherein the father or master is the sovereign’ (Hobbes, 2019: ). Pateman (1988: 48) concludes that for Hobbes, ‘[a]ll servants are subject to the political right of the master’. Thus, it is only household rulers who are free as autonomous persons to consider agreeing to the social contract. Locke is even clearer on the subject. In the second of his two Treatises of Government, published in 1689, he states in Chapter 5 that ‘the grass my horse has bit, the turfs my servant has cut … become my property’ (Locke, 2012: §28). For Locke, the social contract secures the natural right to life, liberty, and property against physical threat from robbers, and political threat from tyrants. It follows that only those in a position to have property will be contractors, since others are not fully at liberty in their lives to gain it. The second exclusion was often put less overtly, though it was clearly analogous. By status, women were unmarried daughters, wives, and widows and thus economic dependants, almost always within a household or only barely tolerated outside one. That was a realm of private, patriarchal householders, quite separate from the public realm of contract-making. Individuals undertaking the social contract were therefore conceptualized as males, even though the language defining the individual autonomous contractor, which invoked a generic abstract humanity, suggested otherwise. Hobbes’s ‘family’ apparently subsumes wives within the category of servants, who were excluded from obligating themselves freely into political society (Pateman, 1988: 50). Locke, however, is much clearer, not just about households and marriage, but about male superiority in general. In Section 82 of the second Treatise of Government, he writes: But the husband and wife, though they have but one common concern, yet having different understandings, will unavoidably sometimes have different wills too; it therefore being necessary that the last determination, i.e. the rule, should be placed somewhere; it naturally falls to the man’s share, as the abler and the stronger. Perceived similarities in language, religion, culture, race, capacity, or ableism and such like categorial markers were also at work in the classical texts, just as they were in the contemporary politics of the writers. In their political theories, hierarchies of power produced relations of domination and categories of discrimination which they did not contest. The egalitarian logic of contractualism then legitimated those already established exclusions and subordinations. 10.2.4 Some are more violent than others Monetized commodification, which presumes a commercial contract, has more often been imposed throughout the world than voluntarily accepted. Contract-making, because it is understood abstractly to arise in peaceable circumstances, is therefore ideal for legitimating economic systems established or re-made through aggressive commercialisms. Those processes of violence and intimidation included internal repression, external colonization, imperial conquest, systematic dispossession, and similar forms of money-driven exploitation of resources and peoples. Through an abstract scenario, the actual circumstances of invasion, colonialism, displacement, forced labour, genocide, and the like are set aside (Ince, 2018). KEY CONCEPT: Settler societies The term ‘settler societies’ refers to colonies and enclaves formed by governmental power and commercial enterprise in order to transfer some people, either forcibly or voluntarily, to sites where they were expected or required to make permanent settlement. Governments explicitly or implicitly authorized settlers to dispossess such inhabitants as were already there, so as to give settlers unimpeded access to land and further resources. Existing inhabitants were thus variously subjected to genocide, slavery, marginalization, and discrimination, as well as to forcible erasure of culture and tradition. They were also stigmatized in historical writing and in day-to-day practice, as well as excluded from full and equal citizenship, or sometimes even human status. Successor states to those colonies and enclaves have so far offered only minimal acknowledgement and insignificant reparations. The moral mythology of commercial contractualism then functioned as an exemplar for, and paradigm of, rectitude, freedom, progress, and modernity (Armitage, 2013). That convergence of power with knowledge-making has made it difficult for dominant nations and persons even to see the exclusionary practices and inclusionary violence described above. Hence they have resisted, most often with considerable violence, many of the struggles against their domination. Those repressions and suppressions were and are commonplace, even though the oppressed and subordinated peoples often invoke the inclusivity and peacefulness through which the social contract was defined (Césaire, 2000). 10.2 The social contract: Key Points The social contract invokes the individualistic, egalitarian logic of autonomous individuals empowered to make agreements and thus incur obligations. The liberalizing politics of anti-absolutism, based on contractualism, aligns exactly with the violent politics of aggressive commercialisms. The social contract is a moralizing mythology of equality and self-interest that presumes and legitimates prior exclusions from ‘the people’. Those prior exclusions represent hierarchies of domination and subordination. The sexual contract As we have seen, liberalizing struggles to establish constitutional governments have been grounded in the egalitarian individualism of the social contract. That politics of securing and extending rights and liberties was therefore aligned with the presumptions of commercial contract-making (Whyte, 2019: 10–14). In both cases, the inclusion of female individuals as human beings equal to male ones in political and commercial life should not have been problematic. And their exclusion from competitive male hierarchies of power and wealth would clearly be illegitimate. Feminists have, however, presented detailed historical and contemporary research demonstrating that, as matters of fact, women were systematically excluded and disadvantaged. Male-dominated structures of political and economic power discriminated against them in public and subordinated them in private. Women do not own and control economic and political resources in any respect equal to what, through male-dominated structures of power, men afford to themselves. To explain how this could be, and to understand why it has such widespread legitimacy, Pateman turned to political theory. In The Sexual Contract, Pateman (1988) deduced that the narratives through which contractualism was explained actually negated the human equalities that they expressed. That is, contrary to textual appearances, the human universal was construed by classical theorists in male-centric terms. In that way, women were conceived as unequal to men or, rather, the human universal was clearly not conceived as female. Rousseau’s Social Contract, published in 1762, removes commercialism from contractualism by placing his equal individuals in an idealized bucolic setting of household and collective sufficiency, rather than locked into competitive hierarchies of economic domination and subordination. But his view of sexual difference was extreme, arguing explicitly in various writings that women were unsuited to citizenship and civic life, and required—by their nature—subjection to men in patriarchal households (Pateman, 1988: 96–102). The possible inclusion of at least some women in male hierarchies of power and wealth became acutely visible as an issue in the 1790s. The Declaration of the Rights of Women and the Female Citizen (De Gouges, 2018), and A Vindication of the Rights of Woman with Strictures on Political and Moral Subjects (Wollstonecraft, 2004), occasioned much debate and violent struggle. De Gouges herself was executed on the guillotine (read more about Wollstonecraft in Chapter 21). Subsequently—nearly two hundred years later—those works entered the otherwise all-male history of political thought. In the nineteenth and twentieth centuries, there have been some inclusionary successes for women in certain respects, notably in equality before the law, and access to the franchise. But in more recent eras of increasing egalitarianism, albeit within racialized and other structures of domination, why have exclusionary discrimination, and persistent economic disadvantage, so affected so many women so persistently? Why did female citizens have to fight so hard to get the vote? Why did so many men resist this, and other equalizations, so determinedly, even violently? Why do so many male-centric and female-unfriendly spaces and practices still exist? What are the moral and political economies of female prostitution or sex-work? Why is so much sexual violence against women understood as unimportantly domestic? Why is there a gender pay gap in wages and a glass ceiling in promotions? Pateman’s sexual contract is a parodic theorization that upends the male-centric abstractions through which the social contract is understood as egalitarian. It is therefore a powerful analytical and explanatory tool for understanding feminist politics and assessing what it is up against. The human-centric universalisms of the classical social contract, according to Pateman, are already construed within a hierarchical politics of power and authority. That politics is in fact a self-legitimated practice of sexual control by men over women. Insubordinate and rebellious women are therefore considered a threat to the legitimacy of the entire social order. Sexual difference is thus a political hierarchy of men over women. It follows that any grant to women of higher social status, or conditional inclusion into hierarchies of power, is men’s alone to grant. 10.3.1 Women and marriage As a feminist, Pateman’s first target, in bringing down illegitimate structures of men’s control over women, was marriage. To do this, she distinguished it sharply from other concepts, such as the family, parenthood, childcare, and the like (Pateman and Mills, 2007: 222–224). Marriage, as a customary and religious institution, has been very largely construed in terms of male superiority and dominance. Moreover, women as marriage partners were not understood as fully human, but rather as sexual servants and status-markers for men. As property ownership became ever more crucial to aggressive commercialisms, contractualism in relation to marriage—whether as an implied transactional agreement or an explicit contract of property exchange—became the norm. Women were thus subordinated under men’s control. Why, Pateman (1988: 5–8) asked, would any woman freely sign a contract of marriage, or otherwise agree to be bound by such obviously disadvantageous terms? Or, to put it another way, how can the liberalizing politics, for which the social contract set such crucially egalitarian terms, so consistently support the patriarchal oppression and political subordination of women? Pateman’s answer was that the institutions of female subordination—marriage, maternity, family, domesticity, sexual objectification, prostitution, sex-work, and suchlike—had already been legitimated by men before the liberalizing politics of the social contract could be applied. Following the logic of the social contract—that legitimating authority arises only through contractualism—she concluded that there must have been a prior contract of domination. That prior contract would be an agreement among men, founded on the exclusion of women from their egalitarian contract-making. The subsequent social contract thus legitimates not only the sovereign authority of men but also their political and sexual subordination of women. Pateman writes: ‘The original pact is a sexual as well as a social contract: it is sexual in the sense of patriarchal – that is, the contract establishes men’s political right over women – and also sexual in the sense of establishing orderly access by men to women’s bodies’ (ibid.: 2). As with the social contract itself, this prior contract need never have occurred. Rather, both contracts together are a way of understanding how legitimacy can be ascribed to social structures of exclusion, domination, and subordination, notwithstanding premises of inclusivity, equality, and autonomy. Moreover, both contracts rest on consent, rather than on overt agreement. Overt agreement is an explicit action, whereas consent can be a kind of inaction, merely acting as if one had agreed. In that way, the social contract is unlike commercial contracts, which typically require explicit agreement signified with seals or signatures. Even implicit contracts are based on parties taking actions consistent with terms, evidently agreed without formalities. Consent, though, can be merely ascribed to individuals, and the validity of the contract will still arise. Critics of the social contract have protested that ascribed consent to a hypothetical contract is an extraordinary device from which to derive a comprehensive obligation to obey (Wolff, 1998). But in Pateman’s analysis, through the social contract, and the prior sexual contract, women are deemed by men to have consented to their bodily subordination, foremost in sexual terms, but also to their political subordination, again at men’s disposal. KEY THINKER: Susan Moller Okin Susan Moller Okin (1946–2004) published Justice, Gender, and the Family in 1989, a highly influential feminist critique of liberal presumptions. Okin (1991) argued that liberalism actively promoted injustice in relation to women. Liberal conceptions of justice, whether individualist or communitarian, did not consider relations of power within families, because liberals did not take family life seriously in political terms. Family relationships were structured within patriarchal presumptions through which women were disadvantaged as wives and mothers. Okin’s argument thus aligns with Pateman’s in The Sexual Contract (Pateman, 1988), because it shows how masculinist knowledge-production marginalizes women and legitimates their exclusion from positions of power. While Pateman focused on marriage and prostitution, and thus on women as individuals, Okin focused on the family-group, and similar domesticating relationships, within which women were treated by men as inferiors. 10.3.2 Women and prostitution Pateman also used her analytical framework to examine another problematic institution through which men exert power over women. That institution was prostitution, a transactional practice that is typically denigrated and stigmatized. She argued that both marriage and prostitution were instances of, and supports for, the domination of men over women. Both, therefore, were effects of the sexual contract, undertaken by men, such that their exclusive participation in the social contract legitimated their sovereign authority over the other sex. ‘Prostitution is part of the exercise of the law of male-sex right’, Pateman (1988: 194) says, ‘one of the ways in which men are ensured access to women’s bodies’. From that analysis it followed, for Pateman, that marriage and prostitution were more similar than different. In that way, they are mirror images of male hypocrisy, because egalitarian contractualism espouses autonomous individualism. Thus, in Pateman’s analysis, the moral mythology of the social contract occludes the subordination of, and control over, women by men that actually take place. It has this effect precisely because it articulates abstractly an egalitarian politics that resists authoritarian domination. Pateman’s analysis of marriage and prostitution follows logically from the analytical framework that she establishes. In both cases, however, her specific points of criticism have in turn attracted feminist controversy (O’Neill, Shanley, and Young, 2008) (read more about Young in Chapter 22). In the case of prostitution, this has been particularly intense. It must be said that prostitution is a hugely controversial subject, so any opinion will generate a passionate reaction. Marriage, though, is rather different, being generally less controversial, even celebrated, and also well provided with defences and defenders. Yet, citing Wollstonecraft’s famous remark, Pateman (1988: 190) notes that marriage can be described as legal prostitution, though unlike prostitutes, wives are not paid for their sexual services. Other feminists have commented that, through contractual negotiations, prostitutes, in some circumstances, are striking agreements with men more freely than is usually the case in marriage. As one would expect, Pateman’s critical riposte focuses on such contractarian narratives of individual freedom understood in terms of commercial exchange. For Pateman, that freedom is based on a supposed separation between a woman’s selfhood and her body, on the one hand, and the marketable commodity termed sexual services, on the other. Men, by contrast, are not subject to a self/body separation that commodifies the latter. The moral mythology of equal exchangers thus enables orderly access by men to women’s bodies, not just within marriage, but also outside it (ibid.: 191). Moreover, men’s economic empowerment over women as sexual objects also extends to liaisons, affairs, mistress-keeping, secondary households, and other arrangements. Those relations are transactional within a zone somewhat between prostitution and marriage (ibid.: 191–192). Freedom of contract is the cornerstone of what Pateman calls patriarchal capitalism, which privileges men as controllers of wealth and power. Pateman’s analysis moved heterosexual relations controversially into a zone of specifically political contestation. By contrast, the parameters through which those relations had been traditionally understood were typically set by religious teachings on family life or biological understandings of species-reproduction. Rather than contesting religion or science, Pateman contests the legitimating narratives of political theory. Those egalitarian narratives of contract-making, based on commercial exchange, are the modes through which modern politics is understood. By using the prior contract as a device, Pateman is able to highlight the way that the female sex is construed as already subordinated to the male sex. Thus her theorizing denies legitimacy to the sovereignty that the social contract purports to justify. 10.3 The sexual contract: Key Points The sexual contract explains how the egalitarianism of the social contract is made consistent with the subordinated and disadvantaged position of women. This is because a prior contract of exclusion has already been agreed among men which authorizes their orderly access to women’s bodies. In that way, marriage and prostitution are revealed to be effects of male sovereignty. Contract-making, whether prior, social, or commercial, is thus a device integral to patriarchal capitalism. The racial contract Mills’s (1997) book, The Racial Contract, references and mirrors Pateman’s analysis in The Sexual Contract (Pateman, 1988). Just as Pateman detailed the legitimating logic through which women were disadvantaged and subordinated, so Mills similarly theorizes an exclusionary contract of domination prior to social-contract making. Pateman and Mills both use this device to argue that some persons are already excluded from the contract-makers who constitute ‘the people’ and are therefore sovereign. Thus, the apparently inclusive and egalitarian scenario of social contract-making among autonomous individuals disguises a prior agreement among some to exclude others whom they judge to be inferior. Yet those inferiorized individuals will be obligated to accept the resultant governing authority as legitimate. In that way Pateman accounts for systematic discrimination against women, by men, and Mills accounts for systematic discrimination against Black people, and People of Colour generally, by White people. Mills’s book also shows us that the production and reproduction of political theory by white people have excluded or marginalized, and thus inferiorized, other ways of making sense of politics and society. So the political theory canon of classic writers is very white in exactly the way that it is very male. The exclusionary and subordinating processes of discrimination and disadvantage are thus disguised by a moralizing mythology that takes whiteness as the human ideal and the exemplar of human achievement. The same mythological moralizing also licenses the aggressive commercialisms through which human progress to modernity has been theorized and pursued by white people. Mills’s racial contract, undertaken by white people among themselves, reveals not just the domination and subordination that belies the apparent egalitarianism of the social contract, but also a moral mission for white people to enforce their version of modernity on non-white peoples and their cultures. This combination of aggressive commercialisms and convictions of white superiority has justified and condoned slavery, massacres, brutality, conquest, invasion, colonialism, imperialism, pacification, nation-building, land-grabs, population removal, incarceration, seizure of children, cultural destruction, and similar phenomena. As Mills (1997: 1–2) says, ‘White supremacy is the unnamed political system that has made the modern world what it is today.’ That status of being unnamed is not an accident, but a way of making sure that white domination ‘is not seen as a political system at all’. Yet, Mills continues, ‘the most important political system of recent global history’ is the one ‘by which white people have historically ruled over and, in certain important ways, continue to rule over non-white people’. Mills’s conclusions (ibid.: 33) come with due acknowledgement of the work of Frantz Fanon (see Chapter 28), C.L.R. James (see Chapter 18), W.E.B. Du Bois (see Chapter 31), and many other writers of colour. 10.4.1 Universalism and hypocrisy Mills’s argument, however, is not about the desirability of including non-white persons in the privileged position of the sovereign people as set out in the classical social contract. He is well aware that those texts, as we have seen, explicitly excluded servants and implicitly, or sometimes even explicitly, excluded women. Those hierarchies, then, by virtue of the moral mythology of the social contract, are hypocritically understood to be consistent with the universal equality of all humans as autonomous individuals. Mills is thus drilling deeper by factoring white modernity and racial oppression into Pateman’s critique. Mills argues that white modes of knowledge-production, termed mainstream and authoritative in an apparently unraced way, have generated closed communities in philosophy, ethics, political theory, and the like. To maintain the fiction that the knowledge that these communities generate is unraced, those communities, he says, are preoccupied with very abstract, universalizing discussions of justice, equality, rights, authority, and legitimacy. The educational curricula, which license those abstractions and associated analytical methods, then obscure other ideas and knowledges, since abstractions have already claimed centre-stage. Moreover, in that way, white knowledge-production occludes the actual historical struggles of non-white peoples against white domination. Thus the moralizing mythologies of contract-making push real struggles, actually made by real people, into the background. This take-over of knowledge-production has been termed epistemicide (De Sousa Santos, 2014). Mills (1997: 4) references a number of alternative intellectual traditions, including ‘Native American, African American, and Third and Fourth World political thought’. Those intellectual traditions have focused on the struggles through which the majority of the world’s populations have resisted white domination. Thus, they offer explicitly raced, non-mainstream accounts of ‘conquest, imperialism, colonialism, white settlement, land rights, race and racism, slavery, Jim Crow, reparations, apartheid, cultural authenticity, national identity, indigenismo, Afrocentrism’ and the like. Those histories have been misconstrued, obscured, and suppressed in white histories and are thus unknown to, or only superficially noticed by, students and intellectuals familiar solely with white knowledge-production. Indeed, whiteness itself functions as a criterion of significance and an index of truth. The racial contract, Mills says, thus bears witness to the political and economic imperialisms and colonialisms through which white knowledge-production proceeds. Feminists had already experienced male domination personally and protested it publicly, such that Pateman could make it visible academically. By contrast, Mills notes that white domination, as a persistent and pervasive hierarchy, can scarcely be mentioned within white education and public life. White people do not have the experiences that come with racialized oppression, because they are the oppressors. In any case, they have little reason to enquire into their own complicity. For those reasons they have almost no sense that they are even a race. 10.4.2 Whiteness and ignorance Mills (2017: 49–53) targets what he calls white ignorance. He develops this idea by linking the philosophies of the Enlightenment period, arising in north-west Europe, with the aggressive commercialisms fostered there. Put very simply, Mills is arguing that what academic establishments have taught as validated knowledge, and ways of acquiring it, have proceeded from the standpoint of elite, economically privileged, white males. The contrasting non-white knowledges to which Mills appeals are ones proceeding from a view of the individual rooted in the histories and cultures of social groups, rather than in abstractions from human experience that are supposedly universal. Those supposed universalisms, Mills says, are suited to presumptions and erasures that enable one group to empower itself over others. White knowledge-making proceeds not only by supporting the aggressive commercialisms that fund academic institutions, but also by eliminating rival intellectual systems that proceed from different, less abstract presuppositions. In Mills’s view (2017: 51), ‘the Marxist [class] critique is seemingly discredited, the feminist critique is marginalized, and the racial critique does not even exist’ (read more about Marx in Chapter 13). Thus, Mills is mapping a kind of knowledge-bubble of white privilege through which the world—as it is envisaged in and through the minds of white, propertied males—protects itself. That protection is accomplished not so much with falsehoods as with disdain for other points of view. In particular, the moralizing mythologies and rarefied abstractions of social contract-making are a key device for maintaining this studied incuriosity. From that basis, Mills tackles the trade in Black humans, forced to labour as slaves, which propelled the aggressive commercialisms of the early modern period. From the late fifteenth to the late nineteenth century, this traumatizing set of practices flourished in a specifically racialized way. The global trade, notably around the Caribbean and also much further afield, even to Pacific Oceania, generated huge profits for western European elites and commercial middle classes (Williams, 1994). In the first decades of the nineteenth century various European countries and the United States abolished the slave trade as a feature of their moralizing self-empowerment, though with convenient gaps in enforcement. The lucrative practice, deriving commercial profit from forced labour, continued for decades. Complete abolition of slavery itself, at least in principle, occurred in various colonies and countries, with Brazil the last in 1888. Compensation went exclusively to slave-holders and their heirs who had personal ownership of human beings, and to holders of investment shares in slave-owning enterprises. Nothing went to former slaves; indeed some were bound to further labour to repay the former owners’ investments (Manjapra, 2020). The moral mythology of contractualism has survived quite well as the foundational argument for inclusionary political practices, such as promises of non-discrimination and policies of affirmative action. Those inclusionary practices beg the question as to what kind of society formerly excluded and subordinated persons were being included in, as well as exactly what inclusion in white-dominated economic and political systems would entail. As a mode of theorizing, contractualism itself is history-less, so it erases, rather than acknowledges, the violent histories and institutional persistence of white racism. 10.4 The racial contract: Key Points The racial contract is a prior contract of exclusion through which some agree among themselves to dominate and subordinate others along lines they determine as race. The apparent egalitarianism of the subsequent social contract then legitimates a racialized hierarchy of white persons over Persons of Colour. Through white ignorance, knowledge-making from subordinated points of view is marginalized or erased. In that way, whiteness itself goes unacknowledged as a racialized category and racializing practice. The settler contract Mills pays tribute to Pateman’s work on the contract of sexual domination prior to, but suppressed by, the classical terms of the social contract itself. In turn, Pateman takes up Mills’s racial contract in relation to the actual practices of nation-states, expanding on what he had briefly termed the settler contract. Pateman points out that sending white settlers out globally for permanent and dominant occupation elsewhere required particular attention to the establishment of continuing sovereignty. Settlers’ sovereignty needed legitimation, because otherwise they would appear as conquerors of territory that belonged to others and as usurpers over their sovereignty. Pateman tackles the settler contract by considering how the USA, Canada, and Australia were colonized by white people. In that way, she reinterprets the theory and practice of the classical contractarians themselves, not just textually in their theoretical writings, but personally in archival material, notably with Hobbes and Locke. While the concept of race is not posed explicitly by Hobbes and Locke, both theorists included colonization within their theorizations of the social contract. Those theorizations explained what sorts of peoples, namely North American Indigenous, were excluded from, or not yet suitable for, inclusion in the peaceable agreements of social contractualism. However, those excluded persons were nonetheless obliged to obey the governing body that the social contract-makers had legitimated. Both Hobbes and Locke, Pateman points out, were involved in the commercial and governmental colonial schemes through which settlements were organized. Hobbes was associated with the Virginia Company, and Locke was affiliated to the Lords Proprietors of the Carolinas. Both enterprises were encouraged, protected, and defended by British governments, which both Hobbes and Locke, in somewhat different ways and at somewhat different times, were involved in legitimating (Pateman and Mills, 2007: 35–41). Pateman traces the narrative arguments through which Indigenous people were excluded from being sovereign peoples in their own right, and thus from having their own governing structures, which colonists might have been obliged to respect. Those structures typically included occupying and using lands and waterways, engaging in systems of production and exchange that were already in place, and continuing the activities of knowledge-production and cultural meaning-making through which they understood themselves and others. As contractarian narratives of sovereignty were developed further, from a basis in texts by Hobbes and Locke, the doctrine of terra nullius or ‘empty land’ emerged in political parlance. Pateman shows how the colonizing powers used this device to declare their settlements to be legitimate outposts of home-country sovereignties. That device inferiorized Indigenous peoples by characterizing them as uncivilized, dangerous, and subhuman, thus legitimizing expropriation and extirpation. Those narratives also provided exoneration for the civilized white man, and subordinately, white woman, who would otherwise be adjudged perpetrators of injustice. With that prior agreement among white people, understood by Pateman as the settler contract, the aggressive commercialisms, licensed at home by contractual individualism, were also licensed in colonial spaces, yet without the moral opprobrium of conquest and usurpation. As a corollary, the moral justification of self-defence was often invoked against Indigenous resistance. For Indigenous peoples, any right to such action had been negated already by the settler contract. That agreement among the white settlers, one with another, dehumanized Indigenous peoples to a status below that of slaves. Slaves, after all, had a market-value, whereas Indigenous people were worthless. Pateman summarizes this succinctly: ‘In a terra nullius the original contract takes the form of a settler contract.’ It follows from this logic that ‘settlers alone [can be said to] conclude the original pact’. ‘Native peoples’, she says, ‘are not part of the settler contract’, because in the required sense of civilized white humanness, they are ‘not really present or even existent’. However, they are ‘henceforth subject to it’, and ‘their lives, lands and nations are reordered by it’ (Pateman and Mills, 2007: 56; emphasis in original). Pateman identifies two variants in British colonial practice: one in North America, beginning in 1607, and the other in Australia, beginning in 1788. In the USA, as the successor state from the Treaty of Paris in 1783, some remnants of territorial integrity and subordinated legalities were imposed by government on Indigenous peoples. In Canada, though, as successor state from the British North America Act of 1867, some elements of devolved sovereignty and property ownership have been negotiated by Indigenous peoples with the government. In both cases, those arrangements were pragmatically undertaken as a result of persistent resistance by Indigenous peoples by whatever means they could muster. By contrast, in Australia, the logic of terra nullius was ‘elevated to the law of the land’ and ‘an entire continent was deemed uninhabited’. With the Indigenous communities there were no official negotiations or treaties signed, since Indigenous individuals did not exist other than in forms of total exclusion and physical marginalization. They were said to be dying races and cultures, and, as some have commented, treated as enemies of the state (ibid.: 61, 70–71). Pateman then circles back from histories to theories, commenting that the classical social contract proceeds in a way that abstracts from embarrassing origins, and erases current inequalities. The egalitarian narrative of autonomous individual contract-making thus removes from view the continuing effects of violent occupation and genocidal colonization. Contractualism has worked so well reciprocally with the moralizing politics of nation-building, because it mirrors the practical goals of the white commercial order. Like the racial contract, the settler contract proceeds on racialized presumptions of whiteness, but subsumes this into an apparently race-less ‘everyman’ individual. Like the racial contract, it legitimates the involuntary inclusion of some subordinated, even enslaved, persons into a system of commercial sovereignty. But unlike the racial contract, it also legitimates the involuntary exclusion of subordinated persons, sometimes through genocidal murder, from their own lands. 10.5 The settler contract: Key Points White settlers empower themselves to exclude Indigenous peoples from their lands and other physical and cultural resources. Those acts of usurpation, annexation, marginalization, and murder then require legitimation within white systems of morality. The settler contract, undertaken prior to the social contract, excludes Indigenous persons from ‘the people’ and sometimes even from human status. Nonetheless, in colonized spaces and successor states, Indigenous peoples are made subject to the sovereignty that white contractualism legitimates. Conclusion Where does this leave the social contract? Does it follow from Pateman’s and Mills’s critiques that the social contract is inherently and necessarily hypocritical? And, if so, what way of theorizing sovereignty, and of distinguishing legitimate forms of rule from illegitimate ones, could replace it? On this point, Pateman and Mills disagree somewhat. Mills identifies and defines the domination contract as an ‘exclusionary, manipulative contract deployed by the powerful to subordinate others in society under the pretext of including them as equals’ (Pateman and Mills, 2007: 82). But, for him, the fault is not with the idea of equals making a contract in order to make governmental sovereignty legitimate. The fault lies in the kind of contract-making, that is, a prior one and a subsequent social one, which together perform the subterfuge. Against that kind of dual-contract, and to address the injustices that it legitimates, Mills proposes a revisionist contract. In that format the reasoning will not be nearly so abstract, because it will take the facts of historic injustice into account. Moreover, individuals will be understood as having agency in and through group memberships and identities, specifically those of sex, race, and class. By taking the historical and current realities of domination and subordination on board, contract-making would be more usefully inclusive. It would depart from universalizing presumptions of an ideal equality, and from timeless presumptions of history-less autonomy. It would therefore leave behind the hypocrisies that Pateman and Mills (ibid.: 94–101) have identified. Mills’s revisionist position is invoked in the ‘capacity contract’, which also uses Pateman’s device of the prior contract (Simplican, 2015). The projection of the general category of mental incapacity by self-defined and self-empowered ‘fully capable’ persons on to other persons so as to dominate them follows the model that Pateman and Mills have powerfully argued. Rather similarly Simplican shows that major theorists and philosophers in the liberal tradition have graded the social acceptability and even human status of individuals in relation to ideals originating with privileged white males. Those ideals of mental capacity represent standards of minimal, functional, and exemplary humanness through which gradations of subordination and degrees of control can be exercised. The subsequent, hypocritical social contract thus legitimates those hierarchical and exclusionary presumptions and practices. The ‘ableist’ contract follows similar lines of critique but also includes physical disability. Pinheiro (2016: 45–46) argues that in contract theory, as is very generally the case in politics, the able mind and the able body cannot be strictly separated. Moreover, bodily development is commonly understood as necessary for mental development, and indeed classical contract theorists wrote extensively to make that point. Hence, in contractualism, an abstract presumption of ‘able’ personhood is deployed to exclude and subordinate those whose ‘singularities’ threaten this idealized self-image. In contrast to Mills’s position and to other revisionist contractualisms, Pateman argues that contractual processes among dispassionate individuals, even if everyone is historically informed and determined on justice, could not possibly work to overcome the violent histories by which today’s individuals already form their identities and views. While contending that her position is not one of hopelessness, she looks to political processes of practical negotiations, compromises, and trade-offs, rather than to a reversion to the abstractions of the social contract. That kind of unrealism, she argues, allows hypocrisies to creep back in (Pateman and Mills, 2007: 164). Pateman also finds contractual theorizing suspect, because it presupposes commercialism. Identifying freedom with a system that necessarily fosters inequality, since that is what monetary exchange ensures, merely creates new forms of domination and subordination (ibid.: 208–209). Alternatively, Pateman conceptualizes freedom as autonomy, that is, thinking and acting within a robust and inclusive set of political institutions. Concepts of equality and justice would thus emerge in relation to, rather than be derived from, the principles and practices of commercialism. That realistic process, she argues, would be truer to the promise of liberalizing anti-absolutism than circular reasoning from abstract premises (ibid.: 228–229). Many people today hold the view that governmental legitimacy derives from claims to authority understood as traditional. These include monarchical succession, religious revelation, and constitutional conventions and institutions. There are few, if any cases, of actual government-making by contract, hence the social contract is much more a heuristic device than a real-world instruction kit. Allegations of illegitimacy, though, have a real-world role in liberalizing authoritarian regimes so that governmental powers are exercised within bounds and would-be tyrants called to account. The true test of legitimacy, then, is whether the government acquiesces to the officers of the legal system—supreme courts, constitutional councils, guardian authorities or special prosecutors, and the like—and thus maintains the rule of law. The concepts through which to understand legitimacy, and to grasp how important it is, are all quite abstract. Hence they require an articulation in theory that lays out first principles, whether of absolute or limited power, authoritarian or participatory decision-making, divine sanction, or human effort. Those theorizations tell us how we have agreed already—that is, consented—to our obligation to obey. But they also tell us how we can ‘unconsent’, though with downsides and difficulties. While consent binds us as individuals, theorizations of unconsent always require a collective. The social contract has functioned both ways in getting people on board for political action, get-out-the-vote as an individual affirmation of consent, and throw-the-rascals-out as a collective act of rebellion. In the political philosophy of modern times, though, as Pateman contends, the abstract scenario of individual agreement and collective obligation often disguises exclusions and hierarchies that need to be worked through, not forgotten, marginalized, or erased. However, as Mills contends, some degree of abstraction is required in order to theorize the legitimacy or otherwise of governmental power, so the pairwise egalitarianism of contract-making is often a good place to start. It is unlikely that anyone’s version of the social contract will tell us exactly what we need to know and do in order to generate individual consent, and to empower collective unconsent, so as to realize the elusive public good. It seems equally unlikely that resolving all such questions into group-wise ongoing political negotiations represents an attractive option, given powerful interests and human gullibility. The alignment of the social contract with the procedures and values of aggressive commercialism suggests that the device is only helping us to beg questions about power, hierarchy, and legitimacy, rather than to pose them. However, the apparatus of rights, duties, and obligations, arising from autonomous choices made by equal individuals, has been politically potent for over three hundred years. This is not at all a purely philosophical debate. It dominates the news every day.