Cultural Critique

Carole Pateman's book The Sexual Contract presents a criticism of classical social contract theory premised on the idea that the original notion of a consent-based rule of law made an exception for the subordination of women in the family. She extends this criticism to contemporary notions of contractual freedom through an analysis of contracts for "property in the person," which are contracts for services that are inseparable from the materiality of the body, such as sexual and surrogacy services. Pateman argues that the body is inseparable from the self, and as such, contracts for property in the person are also exchanging the autonomy of the body whose services are purchased. The possibility of such contracts subordinates the self of one of the parties in the act of exchange even when they are consensual. Pate-man's phrase the "sexual contract" is an attempt to name the power relations that are translated in an economic exchange by the gender-neutral language of contracts. A sexual exchange contract is formally neutral but substantively gendered insofar as female bodies are the predominant object of exchange, given the relationship between the self and the body that Pateman assumes such contracts put women in positions of social subordination. The asymmetry of the contract recapitulates a power dynamic that remains obscured in discourses that assume a consensual exchange between two rights-bearing individuals. The "sexual contract" names what is missing, which is the background condition of female subordination.

In many ways, Pateman's argument anticipates the legal debate over sexual exchange in Canada, which has centered on decriminalization and/or legalization in recent years (Phoenix; van der Mulen; Warnock and Wheen). [End Page 90] This debate reached an important turning point in 2013 as several of the country's criminal laws relating to sexual exchange were ruled unconstitutional by the Supreme Court of Canada, on the grounds that they violate the constitutional rights of individuals engaged in exchanging sexual services. In particular, the laws were found to unreasonably violate the individual right to the "security of the person," which is protected by the Canadian Charter of Rights and Freedoms. A debate ensued as to whether Canada should adopt the "Nordic model" of regulating sexual exchange, which involves decriminalizing the selling of sex while instituting a criminal prohibition on buying, or whether Canada should decriminalize sexual exchange completely and treat it as an economic activity ("sex work").

To explore the relevance of Pateman's concept of the sexual contract to this legal debate, the paper also draws on the work of nineteenth-century libertarian thinker Pierre-Joseph Proudhon. It is hard to identify a thinker who would have been more opposed to the spirit of Pateman's Sexual Contract than Proudhon, who was a notorious antifeminist. Socialist and anarchist thinkers of the nineteenth century tended to be more open to the idea of women's emancipation, but Proudhon was a notable exception. He idealized an image of pre-French revolution peasant life in which wives were the property of husbands and men's position as heads of household determined their economic and political role in the community (Segalen). The reason for drawing on Proudhon is that his arguments against women's emancipation share with Pateman's concept of the sexual contract a critique of liberal conceptions of contractual freedom that sheds light the meaning of contracting bodily services. Remarkably, Proudhon agrees with Pateman that contractual freedom applied to "property in the person" does not eliminate women's sex-based subordination. In what follows, the paper analyzes the Supreme Court's ruling on prostitution laws in Canada in light of Pateman's concept of the sexual contract and Proudhon's concept of pornocracy. It argues that contractual framings of sexual exchange depend on a pornocratic fantasy that supplements the reasoning by obscuring the fact that the autonomy of the body is part of the contractual consideration. [End Page 91]