Feminist Theory Week 3: Marriage

I am blogging my way through the course texts for my grad feminist theory seminar this term. This week we’re reading selections from Carole Pateman’s The Sexual Contract & Dean Spade & Craig Willse’s “Marriage Will Never Set Us Free.”


Pateman makes a few key points:

Private sphere subordination gives meaning to civil freedom; universal civil freedom is impossible.

This is most evident in classical contract theorists’ appeals to the state of nature. There, civil freedom emerges as the overcoming or surpassing of a state of unfreedom. Similarly, social contract theory is presented as itself overcoming a past state of subordination–the subordination of men to fathers/kings. As Pateman argues,

contract thus gains its meaning as freedom in contrast to, and in opposition to, the order of subjection of status or patriarchy…the replacement of status, in the sense of absolute paternal jurisdiction in the patriarchal family, by contractual relations, and the replacement of the family by the individual as the fundamental ‘unity’ of society” (9-10).

So it’s not just that “contract” appears free with respect to a past state of subjection–the very civil freedom that contract provides appears free with respect to an ongoing state of subjection. Because “the worker who is subordinate to the employer is also master at home” (142), that subordination at work appears like liberty because he (duh, he) is master over women. Contractarian liberalism frames personhood as a matter of mastery (particularly in the sense of ownership). Pateman’s point is that this concept of personhood is a patriarchal concept of personhood that frames mastery as a man’s mastery over women (179). Again, this is not self-mastery, or competency, Kantian self-legislation: this is patriarchal mastery. Our reigning concept of freedom, in other words, is gendered. Even when women perform or claim it, they are enacting a patriarchal relation of mastery. How do women enact this patriarchal relation of mastery? Over whom? And how do they enact it over others while still being subject to it?

Relatedly, postfeminism adopts a similar sleight or misdirection. It posits women’s newly-won freedom in contrast to a past state of subjection (hello Oprah’s Golden Globes speech), whereas any freedom white cis Western bourgeois women get comes in contrast to current and ongoing states of subjection. As Pateman puts it, “contractual relations do not gain their meaning from the wold world but in contrast to the relations of the private sphere” (118). So what are these states of subjection wrt postfeminist freedom appears like freedom? And how are they related to the “private” sphere?

If contractarian liberalism conceives “political right as patriarchal right or sex-right” (1), how does this translate, concretely, beyond men’s subordination of women? In other words, if “right” in general (like in the sense of having rights, the right to free speech) is actually the generalization of the patriarchal right men have over and to women, how does that particular patriarchal right (heavy on the scare quotes here) “scale”/translate to apparently non-gendered relations? Ecofeminist claims that Western relations to nature are modeled on patriarchal ideas about men’s dominance over women might be one example of such translation. But what about others?

Pateman argues that part of the freedom or rights guaranteed by the social contract include “orderly access by men to women’s bodies” (2). Two questions:

  1. How does this claim from Pateman relate to Federici’s argument that capitalism transformed women into a commons available for men to use at their (the men’s) will?
  2. In what ways is this attitude present in American culture? I’m thinking beyond just sexual harassment, to things like mansplaining–other examples?


The concept of property-in-person does a lot of (bad) work.

To recap, property-in-person comes from Locke: “‘every Man has a Property in his own Person’; all individuals are owners, everyone owns the property in their capacities and attributes” (13). This idea of property creates a fake division between one’s embodied person and one’s labor power. As Pateman explains,

The ‘individual’ owns his labour power and stands to his property, to his body and capacities, in exactly the same external relation in which, as a property owner, he stands to his material property. The individual can contract out any of his pieces of property, including those from which he is constituted, without detriment to his self. However, although labour power is a property, a commodity, it is not quite the same as other material properties” (149-50).

Locke’s concept of property in person assumes that we can separate out little parcels of our labor power and give them to others without giving our whole selves to them. That way, I am still free and self-legislating even if those tiny parts of me are under someone else’s command. But as anyone who has ever had a job knows, when I sign parts of my labor power over to my employer, my whole self goes to work. “The use of labour power requires the persence of its ‘owner’” (151). I can’t both be at work and at home bingewatching TV in my pajamas (except if you’re a TV critic). Thus, Pateman concludes, “contracts about property in the person inevitably create subordination” (153).

The sexual contract thus creates a specifically sexualized kind of subordination. It grants men “right of sexual access to women’s bodies” and “right of command over the use of women’s bodies” (17). This is quite close to Federici’s point that women become a commons for men. Obviously Pateman’s analysis is pretty dated and binary; how might we extend or complicate her claim about property-in-person and the specific kind of subordination trans and nonbinary experience in cisheteropatriarchy?

The most visible feminist activism reinforces the idea of personhood as a form of private property and argues that women too ought to own themselves as private property:

The claim that women own the property in their persons has animated many feminist campaigns past and present, from attempts to reform marriage law and to win citizenship to demands for abortion rights…Historically, while the feminist movement campaigned around issues that could easily be formulated in the language of ownership of the person, the predominant feminist argument was that women required civil freedom AS WOMEN, not as pale reflections of men. The argument thus rested on an implicit rejection of the patriarchal construction of the individual as a masculine owner” (14).

The problem with this is twofold: first, it doesn’t address the gendered nature of women’s subjection within patriarchy, because, second, it maintains the underlying gendered/masculine concept of personhood. This is a kind of FINO (feminism in name only) because it doesn’t do anything to address the underlying power relations in patriarchy. So, women can have the right to careers and economic success, but “men still eagerly press for the enforcement of the law of male sex-right and the demand that women’s bodies, in the flesh and in representation, should be publicly available to them” (14). Women, especially their bodies, are still understood and expected to be a commons for men to use at will. Instead of liberating women to civil freedom, this FINO approach re-subjects women to their gendered subordination to men within civil society while also maintaining that subjection in the domestic sphere.

There’s a contradiction at the heart of the marriage contract, and this contradiction reveals a lot about the status of women in patriarchy.

Traditionally, women have been considered incapable of consenting to a contract, much in the same way a child cannot themselves consent, but must have a guardian’s consent (e.g., a permission slip for a field trip). Even though women are now allowed to sign contracts, they’re still attributed the things that originally excluded them from that opportunity: they’re still not rational enough, and their persons aren’t fully their own (i.e., men expect to be entitled to women’s bodies, labor, and so on). Marriage contracts, however, are the one contract women were expected if not required to participate in. However, this raises a contradiction: “How can beings who lack the capacities to make contracts nevertheless be supposed always to enter into this contract?” (6). Generally women don’t have the civil personhood required to consent to a contract, except this one special contract, the marriage contract, where they momentairily gain civil personhood expressly for the purpose of signing it away to husbands. “Marriage as a purely contractual relation remains caught in the contradiction that the subjection of wives is both rejected and presupposed” (168).

It’s also a weird contract. First, it’s permanent and all-encompassing. Second, it’s a contract where one party agrees to wholly obey the other party. “The marriage contract, unlike other valid contracts, requires that one party gives up the right to self-protection and bodily integrity” (163). Third, it puts wives in a state of civil but not social death (slaves, as Patterson argues, are in a state of social death).


–Pateman identifies a rhetorical trick wherein the nature/culture or domestic/civic divide is re-articulated in civil society as the private/public (biz+corporate/gov’t) distinction:

“The private sphere is ‘forgotten’ so that the ‘private’ shifts to the civil world and the CLASS division between private and public. The division is then made within the ‘civil’ realm itself, between the private, capitalist economy or private enterprise and the public or political state” (12). The commonly recognized distinction between private corporate entities and tax-funded public entities obscures the gendered distinction between domestic and civil spheres. Neoliberalism’s ideal of universal privatization doubles down on this: the feminized private sphere is further obscured by the celebration of and investment in the corporate ‘private.’ In this context, women are supposed to exhibit corporate self-ownership (entrepreneurial subject etc etc) and yet they are still also identified with the domestic private and its subordinate role. Women own themselves civically, but still not ‘domestically,’ where they are still a commons for men. How does neoliberal postfeminism exploit this double-standard? E.g., how is applied to women’s sexuality, which used to be solely relegated to the domestic private?


Spade & Willse

Picking up on Davis’s claim that the state uses marriage to create and intensify relations of domination and subordination, Spade & Willse argue that “people are punished or rewarded based on whether or not they marry” and that marriage is an institution that we use to grant people access to basic needs, like health care. They also make the more narrow claim that “the legal marriage system” has a “corollary criminal punishment system”–that is, marriage is a legal institution used to criminalize specific populations (Which ones?), much like immigration law is a legal institution used to criminalize specific populations (see Lisa Cacho’s book on social death for more on this).

Spade & Willse mention that women are coerced into feeling that love is a scarce resource–which is how capitalism frames wealth. Do cultural narratives about romantic love treat it as a kind of private property–something owned, given, stolen, etc.?