by Carole Pateman and Charles Mills. Malden, MA: Polity Press, 2007. 320pp. Hardcover. $69.95. ISBN: 9780745640037. Paper: $26.95. ISBN: 9780745640044.
Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu.
Contractual metaphors occupy center stage of modern western theories of law. The images of individual consent symbolize the emergence of, according to Henry Maine, modern societies out of traditional communities. However, the social contract tradition, as articulated by Hobbes, Locke, Rousseau, and Kant, enable theories of political obligation, obedience, and legitimacy. While once accepted as literally true historic anthropological events, social contract theorizing came to operate as a heuristic device to defend, at least with John Locke, limited government over that of the unlimited monarchial powers of the king.
But the formation of the social contract is fraught with numerous problems. David Hume for one questioned the historical origins of society, rejecting consent in favor of usurpation as the origin of government. C.B. McPherson spoke for a generation of Marxist scholars who saw class tensions in the social contract tradition. Yet while concerns about how class compromised the social contract once dominated critiques, the turn toward identity politics in the last generation has also raised questions about who is part of this covenant. Carole Pateman’s influential THE SEXUAL CONTRACT came first, asserting that women were both part of, and excluded from the original contract. For the sake of legitimacy one has to assume women consented to the contract, but the strength of Pateman’s book was in demonstrating how so often they seemed invisible and that the contract was really only among men. Charles Mills followed upon Pateman’s argument, arguing in his THE RACIAL CONTRACT that the social contract presupposed a prior racial contract that excluded slaves, Blacks, and other people of color. Together, Pateman’s and Mills’ arguments demonstrated that there were multiple agreements within the social contract tradition, yet many who were affected by their terms were excluded from the bargaining table. Moreover, their respective scholarship begged for a synthesis and collaboration, bringing together a theory of race, gender, and social contracts. The product of that collaboration is the greatly anticipated CONTRACT AND DOMINATION.
For readers hoping CONTRACT AND DOMINATION would produce La grande théorie, they will be disappointed. While the book is engaging and often thought-provoking, CONTRACT AND DOMINATION is less than a book and more than a collection of discrete essays by both of the authors. While Chapter One is a narrative dialogue between Pateman and Mills, the remaining seven chapters are split between the two, and they seldom seem to talk to one another. In Chapter [*133] One the epistemological and ontological differences between Pateman and Mills become obvious. Pateman would throw away contracts as a useful tool for democratic theory, seeing them as inherently exploitative and unredeemable. As her discussion of settler contracts in Australia demonstrate, contracts per se seem almost imposed by the strong on the weak, ala what Hume argues or how Rousseau describes them in his SECOND DISCOURSE. Mills, conversely, hopes to salvage contractual metaphors, finding possibilities in continuing to use consent to ground authority, although in ways that differ from the historical employments of the term. In addition, because Mills seeks to preserve contracts, he more so than Pateman succeeds in moving toward La grande théorie that brings together race, gender, and class domination into one construct. The “racia-sexual contract,” as he calls it, is complex. It notes the crosscutting cleavages that produce four social positions for white women, Black males, and so on. Add class dimensions and what he produces is not so much a theory of a single contract but multiple ones within a single society. The problem, as he notes, in drawing upon the work of Kimberly Crenshaw, is that the law has a difficult time in examining racial and gender (and class) intersections, and the same is true here with how we understand identity, power, and domination within the social contract tradition.
Upon finishing CONTRACT AND DOMINATION one is left with the feeling of an incomplete project. Pateman and Mills each pen their last chapters as rejoinders to critics, but they never really collaborate in forging a shared epistemology of how one should think about race and gender. While their respective discussions are interesting, they offer little in terms of new insights. Nor does the choice of Pateman’s – throw out contracts – or Mills’ – preserve them with a grander complex concept of unification – prove as satisfactory resolution. Where should the book have gone instead?
Missing from this volume is reference to Hegel and perhaps a dialectic that both preserves and transcends the concept of contracts and consent. Or instead of viewing social contracts as levers of individual choice, one needs to view them as social contracts defining how human interaction is organized. Second, contracts could be examined through a master/slave dialect of struggle, seeking to understand the terms under which choice and consent are possible. Third, there are possibilities to asking either a Kantian or Postmodern question: Under what conditions is it even possible to discuss consent? Perhaps here the Critical Legal Studies movement got it right in questioning the conditions under which any contract can be the product of individual choice. Overall, CONTRACT AND DOMINATION, despite its failure to produce a broader theory of race and gender, nonetheless raises good questions and portends more research into the continued viability of contracts as a basis for thinking about the law.
MILLS, CHARLES. 1999. THE RACIAL CONTRACT. Ithaca, NY: Cornell University Press. [*134]
PATEMAN, CAROLE. 1988. THE SEXUAL CONTRACT. Stanford: Stanford University Press.
© Copyright 2008 by the author, David Schultz.