Law, Selfhood and Feminist Philosophy: Monstrous Aberrations 0367279797, 9780367279790

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Law, Selfhood and Feminist Philosophy

At the intersection of law, feminism and philosophy, this book analyses the ways in which certain bodies and ‘selves’ continue to be treated as monstrous aberrations from the ‘ideal’ figure or norm. Employing contemporary feminist philosophy to rethink accepted legal ideas, the book is divided into three sections. The first focuses on the different relational ontologies of philosophers Adriana Cavarero and Christine Battersby – also considering their work via a third term: Spinoza. The second turns to diverse feminist engagements with the social contract theorists. The third section employs insights from throughout the book to focus more explicitly on law – and, in particular privacy law and the so-called ‘wrongful birth’ cases. Bringing together more than 20 years of sustained reflection, this book offers an insightful account of how contemporary feminist philosophy can contribute to a richer understanding of law. It will be of enormous interest to scholars and students working in the areas of legal theory, feminist thought and philosophy. Janice Richardson is Associate Professor in Law at Monash University, Australia.

Law, Selfhood and Feminist Philosophy

Monstrous Aberrations

Janice Richardson

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 a GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 Janice Richardson The right of Janice Richardson to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-367-27979-0 (hbk) ISBN: 978-1-032-54496-0 (pbk) ISBN: 978-0-429-32967-8 (ebk) DOI: 10.4324/9780429329678 Typeset in Sabon by Taylor & Francis Books

Contents

Preface

vii

SECTION 1

1

1 Introduction to Section 1: The Feminist Relational Ontology of Christine Battersby and Adriana Cavarero

3

2 Elizabethan “Spinning” and Penelope’s Weaving: The Political, the Common Law and Stately Bodies

24

3 Untimely Voices: Rethinking the Political with Adriana Cavarero and Christine Battersby

38

4 Relational Ontologies: Adriana Cavarero and Christine Battersby Explored via Spinoza

58

SECTION 2

5 Introduction to Section 2: Feminist Perspectives on the Social Contract

85 87

6 On Not Making Ourselves the Prey of Others: Jean Hampton’s Feminist Contractarianism

103

7 Hobbes’ Frontispiece: Authorship, Subordination, and Contract

123

8 Carole Pateman, the Sexual Contract, and Freedom

144

SECTION 3

9 Introduction to Section 3: Law and Intersections

167 169

vi Contents

10 The Concept of Harm in Actions for Wrongful Birth: Nature and Pre-Modern Views of Women

178

11 Spinoza, Feminism, and Privacy: Exploring an Immanent Ethics of Privacy

198

12 Readings of Warren and Brandeis’ “The Right to Privacy”: Gendered and Raced Bodies

217

Index

236

Preface

I would like to thank Colin Perrin at Routledge and the anonymous referees for allowing me to write an edited collection reflecting on my work over 20 years. I have enjoyed thinking about the connections between the philosophers who have interested me the most. My thanks also to two of those philosophers, Christine Battersby and Adriana Cavarero and for their fascinating courses, given a long time ago in a place far, far away. I would also like to thank Christine for her generosity that I recall made my time as a doctorate student such an improvement on her own. In a truly reflective mode, I would also like to thank Tom Huggon, David Margetts and John Stallard for their early attempts at socialising me and for coming to terms with this failure. Finally, thanks to the wonderfully eccentric Melbourne Spinoza Reading Group and its members whom I have been meeting weekly over the last twelve years. In particular, I would like to thank the stalwarts: Justin Clemens, Joe Hughes, Chris van Rompaey, Jon Rubin, and Joeri Mol, who hasn’t been for ages but whose contribution is still etched on our memories. Thanks to Jon Rubin for, well, everything really.

Section 1

Chapter 1

Introduction to Section 1 The Feminist Relational Ontology of Christine Battersby and Adriana Cavarero

In this chapter, I introduce the work of Christine Battersby and of Adriana Cavarero, whose philosophies are the focus of the first section of this book. Both can be described as feminist philosophers of relational ontology but differ greatly in their central theoretical frameworks. Here, I explore their main themes and methods. They both produce ontological answers, intertwined with politics and aesthetics, as (different) philosophical interventions. For example, they both critique the fact that traditions in western philosophy have been focused on death but have failed to see birth, the fact that we are creatures who are born, as a philosophical problem. Both go beyond critique to create different conceptions of the relationship between self and other.

Cavarero’s Method I will discuss Cavarero’s method and then turn to that of Battersby. In the introduction to an edited collection, Toward a Feminist Ethics of Nonviolence, responding to Cavarero’s Inclinations: A Critique of Rectitude ([2014] 2016, Timothy Huzar and Clare Woodford in their introduction to Cavarero’s method highlight four approaches: Cavarero has made an extraordinary contribution to political and philosophical debate over the last four decades. Pertinent to this volume is her method of theft; her critique of the role of the body in the philosophical tradition; her reappropriation of the body as unique, narratable, and vulnerable; and her consequent ethics of nonviolence concerned with inclined relationality and care. (Huzar and Woodford 2021, 17) I will adopt Huzar and Woodford’s list of these four areas of Cavarero’s method and comment on each. I like the division but supplement it to draw out different interlocking areas of Cavarero’s work than those considered in Huzar and Woodford’s chapter, starting with Cavarero’s “theft.” DOI: 10.4324/9780429329678-2

4 Section 1

(1) Cavarero’s “Theft” Of course, this is no ordinary theft. This theft amounts to a total reworking of the stories and images of patriarchal societies’ caricatures of women; a theft that allows Cavarero to render the familiar unfamiliar. Cavarero employs this method to demonstrate how weak a traditional philosophical framework can be – how easily its threads unravel – when its weak spot, the position and experiences of cis women1 at different times, comes into view. This method is more evocative than critique alone. It allows Cavarero to achieve much more than the important work of pointing out and challenging misogyny. By reframing well-known cultural products, whether they are icons, myths or philosophical frameworks, she forces her readers to perform a gestalt switch. They suddenly perceive these cultural products in a different light under which their misogynist meaning is challenged and replaced by a different image. This switch produces a double vision that is familiar to those who, from a subordinate position, are able to see both the perspective of those dominating them (the “norm”), alongside their own alternative perspective. This double vision does not relate only to philosophy and art. The experience is starkly illustrated in situations when, for example, those subject to domestic violence are acutely aware of their partners’ moods and thoughts as they monitor an immediate threat. This understanding is not reciprocated (as detailed in Bartky’s (1990) classic Femininity and Domination: Phenomenology of Oppression). This is illustrated when the question is asked, “what do women want?”. An obvious initial answer for trans and cis women is: the end of gender based violence. For me, the most important “theft” in Cavarero’s work is her creative rereading of Hannah Arendt, whom she re-works throughout her oeuvre. Cavarero’s re-reading of Arendt’s idea of human action moves the concept away from Arendt’s controversial public/private divide. Cavarero also points out that Arendt excludes the figure of the mother when she focuses on our natality (the fact that we are creatures who are born). For Arendt, natality is associated with the idea of new beginnings made possible by action in public. Cavarero has shown that, from the ancient Greeks onwards, philosophers have been concerned with death; with trying to think philosophically about the fact of human mortality. Until recently philosophical problems in relation to natality have rarely been analysed. This concern is one that has also motivated Battersby, as I will discuss below. Cavarero steals Arendt’s image of men in ancient Greece whom Arendt (1958, 43) describes as demonstrating their virtuosity by their great words and deeds, with an emphasis on public oratory and decision making in the polis. 1

As I will discuss further in this chapter and later in the book, at times this experience could be extended to anyone who can become pregnant, i.e. trans or nonbinary men and, at other times, to those who are stereotyped as women, including trans women.

Introduction to Section 1 5

These men, Cavarero argues, are like the Greek heroes, who hope to cheat death by securing their place in history, thereby achieving a sort of immortality by having their stories remembered and told in the future. In making this point, Cavarero draws from Arendt but, as always, radically reworks her position. In The Human Condition, Arendt describes the ancient Greeks’ belief that human beings are mortal because – unlike animals – “they do not exist only as a species whose immortal life is guaranteed through procreation” (Arendt 1958, 49). So, for Arendt, human life stories can be told as a linear development, in contrast to the circular movement that governs biological life. In the context of this life story, it is important to note here that – following from this argument – Arendt describes the ancient Greeks’ conclusion that potential greatness lies in mortals who can produce things that will be remembered, i.e. “works and deeds and words” (Arendt 1958, 19). As a result of their ability, mortals have the “capacity for the immortal deed” (Arendt 1958, 19). Arendt even concludes that, for these ancient Greek male citizens, The distinction between man and animal runs right through the human species itself: only the best (aristoi), who constantly prove themselves to be the best … and who “prefer immortal fame to mortal things” are really human; the others, content with whatever pleasures nature will yield them, live and die like animals. (Arendt 1958, 49) This is the familiar trope of viewing all women (and male slaves) as subordinate to male citizens because they were viewed as closer to nature and to animals. Arendt is outlining and reflecting the position of the men of the Athenian polis, whom Cavarero, in a much more critical analysis, characterises as sharing philosophers’ obsession with death. Cavarero’s theft does not only involve stealing these ancient Athenian men away from their place in the western imagination, but also employs a substitution. In Relating Narratives, Cavarero (2000) replaces this stolen image of ancient Athenian men attempting to attain immortality by their actions in the polis with that of two ordinary women. In her chapter “On the Outskirts of Milan,” where the scene took place, Cavarero describes how one woman, Amalia, was aware that her friend (Emilia) tried repeatedly to tell her life story but was unable to do so. She often recited parts of the story but was unable to write it or make it cohere. As a gift, Amalia gives Emilia a written description of her friend’s life story. Emilia is moved to tears and carries the written story around with her. When this act of friendship takes centre stage, the demonstration of our uniqueness – which is so important in both Arendt’s and Cavarero’s thought – is no longer viewed as an attempt to evade death by having one’s story told by future generations. This gift enables her to think of herself as someone with a life story that has meaning. Again, Cavarero deftly replaces an obsession with death (and the self-aggrandisement of supposedly

6 Section 1

“great men”) with a concern for life; for a life well lived by an ordinary working class woman.2 Cavarero (2000, 58) compares Emilia’s tears when hearing her life story with Ulysses’ tears, while highlighting the fact that, as a working class woman, Emilia – like working class men – had been denied the ability to join with others; to reveal her “virtuosity” in a shared place of action. Further, unlike working class men, she could not give up on her uniqueness by identifying with the “abstract universal.”3 However, Cavarero reveals an interesting twist in that Emilia’s story itself actually does become part of the political scene in a “shared relational space of exhibition” (ibid., 60) when it was discussed as part of a consciousness raising group that both friends later attended. Cavarero describes an interesting reversal in the order of events. Ancient Greek men aimed to cheat death with their great words and deeds that would be remembered after their death. Emilia had her life story given as a gift and then later told this story as part of a consciousness raising group. As a result of her action in revealing herself, her story became political. I would add that it continues to be political with Cavarero’s retelling of Emilia’s story in ways that challenge ancient Greek men’s views of the political itself. Cavarero then repeats this initial theft and applies a different substitution. In Inclinations, Cavarero focuses on Arendt’s image of what it is to show yourself to another, in a way that emphasises natality, the fact that we are born. Arendt describes natality in the following terms, that it, “may be the central category of the political” (1958, 28). For Arendt, of all human activities, it is action that has the closest connection with natality. This is because of the uniqueness of everyone who is born and their ability to start something new: [T]he new beginning inherent in birth can make itself felt in the world only because the newcomer possesses the capacity of beginning something anew, that is, of acting. In this sense of initiative, an element of action, and therefore of natality, is inherent in all human activities. Moreover, since action is the political activity par excellence, natality, and not mortality, may be the central category of political, as distinguished from metaphysical, thought. (Arendt 1958, 28) Again, Cavarero steals the western image of politics (the scene of the ancient Athenian men in the polis) but this time she substitutes the beginning of all human life stories, the scene of their birth. This move allows Cavarero to 2 3

In In Spite of Plato, Cavarero (1995, 23) provides a finely crafted analysis of death being an obsession of male philosophers from Socrates onwards, to be discussed further below. The problem of the universal is also the focus of both Battersby’s and Spinoza’s criticism. To be discussed below and in Chapter 4.

Introduction to Section 1 7

highlight a problem: Arendt’s reference to natality neglects the existence of the child’s mother and moves too quickly away from the scene of a child’s actual birth to the ancient Greek polis. Following from the previous theft and substitution, it is a child’s mother to whom the child appears as a unique individual and the mother who can tell the story of the start of the child’s life. I would add a slightly different problem. The stress on uniqueness and the idea of bringing something really new into the world seems at odds with the similar lives of men in the much valorised scene of the ancient Athenian “democracy.” Of course, western culture has been obsessed with these “great men” and so it appears sacrilegious to ask: is the polis really an ideal image of a group of people displaying their uniqueness? Arendt makes the following claims of ancient Athens: Being seen and being heard by others derive their significance from the fact that everybody sees and hears from a different position. This is the meaning of public life, compared to which even the richest and most satisfying family life can offer only the prolongation or multiplication of one’s own position with its attending aspects and perspectives. (Arendt 1958, 73) She is wrong in making both assumptions. In ancient Greece, husbands had despotic power over other members of the household (wives, children and slaves), even holding the power of life or death over them. As is the case today, the majority of slaves were women, who were in the household or brothels. In these circumstances, husbands were unlikely to understand or even be interested in listening to the very different experiences and perspectives of those in “their” household. Even female citizens were not allowed their say in the polis. Women were married as young as fourteen to much older men and so were unlikely to challenge them regarding their beliefs or decisions.4 In contrast, these husbands, who made up the polis, were more likely to share similar experiences within their small city state, at least regarding their home life and the respect accorded to them as men. They were therefore more likely to reinforce each other’s points of view, which would differ greatly from those in their households. The members of the polis were more likely to engage in what we now term “group think” and fail to challenge any accepted hierarchies and behaviour.5 I will discuss factors that increase our ability to think together to solve problems further in Chapter 4. Cavarero’s theft of the “great men” in the ancient Greek polis and the way she replaces them with the scene of birth, where our stories all start – while it 4 5

See, for example, Women in Antiquity: New Assessments (Levick and Hawley 1995). The patriarchal assumption that men and women have an identity of interest seems to have been a common error made by men right into the twentieth century, as illustrated by Susan Moller Okin’s (1989) devastating critique of John Rawls’ Theory of Justice ([1971] 1999).

8 Section 1

fits together as a rich conceptual re-framing – may make some feminists wary. As Cavarero herself recognises, there is much cloying sentimentality that has become associated with motherhood. There is a risk of reinforcing the conservative message that motherhood represents “what women are for.”6 Is it too much of a risk to try to re-frame birth, thereby further associating women’s bodies with birth to their detriment?7 For example, those persons not viewed as cis male and in the relevant age group may be told that they should not be hired because they are likely to become pregnant and leave work because of pregnancy. The answer as to the effectiveness of Cavarero’s thefts that highlight birth and hence motherhood may entail pragmatism. Some substitutions may work (to open up a new perspective) at certain times and not others. The question of what serves to create progressive social change at a certain point in time is also Battersby’s focus in her analysis of the philosophy of aesthetics and its relation to politics, which I will discuss below. It may be that some of the fascinating thefts and substitutions that Cavarero makes can provide the “lightening strike” that Battersby sees as a potential of some feminist art, that opens up a different perception at certain times and not others – as may Battersby’s feminist philosophy. Butler, in Excitable Speech (1996), argues that it is also possible for antiLGBTQI+ insults to fail to reach their target because their meaning cannot be fixed. While talking about the same idea of what can prompt progressive insight and social change, both Cavarero and Battersby are more interested in the reworking of philosophical ideas and of art that can portray a position outside the norm than with the openness of language itself, highlighted by Butler. As I will discuss below, Battersby in particular is interested in activities associated with women’s bodies that have been understood through a misogynist lens as abnormal. In common with Luce Irigaray who has had a strong influence in Italian feminism, Cavarero takes the risk of reworking ideas and images of motherhood. However, Cavarero’s aim is to change the way that cultural works are perceived in terms of both their value and meaning, such that the understanding of what is meant by “women” is shifted beyond that of a “functional sub-species” (Huzar and Woodford 2021, n. 37). Or, as Battersby (1998) puts it, regarding the aims of her own work, that women are not viewed as some “monstrous” aberration from the male norm, as I will discuss below. I have considered how Cavarero’s method of theft also includes certain substitutions. These substitutions include the replacement of ancient Athenian men 6 7

On the legal implications of applying this misogynist, teleological perspective of women, see Chapter 10 on the UK judiciary’s approach to the wrongful birth legal cases. This problem applies to intersex and trans persons to the extent that they are viewed by employers as being at risk of pregnancy, whether correctly or not. Obviously, they suffer severe discrimination in any event and so, disturbingly, this may be the least of their problems regarding discrimination.

Introduction to Section 1 9

who are forced to switch places with, first, the ordinary woman in the outskirts of Milan, who is delighted by her life story, written for her by a friend; and, second, newborn infants, whose start in life is told as the beginning of their stories by their mothers. Before moving on, there is also a third theft at play: the original misogynist “theft” that replaced actual mothers with sentimentalised caricatures, whose concerns are always “private” – the realm of privation and idiocy – outside of the polis. This original theft degraded anything associated with the confines of what was termed “women’s work,” birth and care, claiming to oppose it to the creation of culture and politics. From this perspective, Arendt could be viewed as continuing a tradition of this (patriarchal) theft of actual mothers. Arendt steals natality away from the place of birth that entails the mother’s body and situates it in the scene of these “great men” in the polis. Cavarero, in her political analysis of what is understood by motherhood, aims to wrest our image of natality away from this patriarchal tradition. Just as Cavarero aims to undermine the patriarchal characterisation of motherhood by forcing us to see cultural icons and philosophical frameworks differently, there are other progressive challenges to this image of birth at this time: first, the image of trans men giving birth; second the possibility of ectogestation. Arendt (1958, 28), who expresses her concern about IVF in her prologue to The Human Condition would have been horrified by the ways that techno-science has extended the time during which embryos can survive outside the uterus both at the start and end of its development. It may be techno-science, along with medical, rather than philosophical, advances that finally produces the most radical theft of all, in the context of natality, by removing mothers’ pain and suffering with the emergence of ecto-gestation. (For early feminist discussions see Firestone [1971] 2003; with recent evaluations of her work see Merck and Sandford 2010). The industrialisation of gestational surrogacy may simply be a precursor to this development.8 In summation, Cavarero’s reworking of Arendtian concepts forces the reader to experience a double vision. This double vision involves more than the recognition of cultural misogyny but also employs images, icons, stories, and philosophical frameworks that challenge this norm. It also restores the image of mothers, reappropriated from those who would produce a sickly sweet parody of them. (2) “The Critique of the Human Body in the Philosophical Tradition” Huzar and Woodford’s second point regarding Cavarero’s method is that she critiques the way that human bodies have been depicted in the philosophical tradition. This can be seen from her early work from In Spite of Plato onwards. She describes how Socrates banishes his wife from the scene of his death 8

For an analysis of the industrialisation of surrogacy, including the perspective of surrogates, see (Pande 2014).

10 Section 1

(Cavarero 1995, 23). Socrates’ view of birth – envisaged as the falling of the soul into the body – illustrates why he places more value on death, seen as a release of that soul. Cavarero (1995, 22–30) cleverly contrasts Socrates, who therefore can be viewed as “untying” his soul by committing suicide, with Penelope who weaves and then unties her tapestry at night in order to prolong her time away from her suitors, thereby increasing her agency. In In Spite of Plato, Cavarero says that, for Socrates, [… D]eath is nothing but the untying of the soul from the body that leads the soul back to its original home. It is a definitive untying, and for this reason perfect. Nevertheless, the philosopher can experience it also during his lifetime, but only in an imperfect, temporary form. (Cavarero 1995, 23) As Cavarero illustrates, such a view of the body, not only valorises death compared to birth, in which the soul is trapped in a body, it is also associated with hylomorphism, such that it is impossible to think of the body as active in its own right rather than as a passive receptacle. Historically, this downgraded view of the human body has been associated more with women than men. Again this view also concerns Battersby who points out the association of women’s (cultural) bodily experience with “fleshiness,” as I will discuss below. In Stately Bodies, Cavarero (2002) carries Penelope’s tale further to envisage her creating a different (political) space for herself and her female courtiers, as I discuss in the next chapter. While the reworking of ancient Greek texts is uniquely in Cavarero’s voice, the implications of the problem that she tackles is now perhaps better known for its implications outside of philosophy. While it has a long tradition in philosophy, some of the practical impacts of taking cis, white, “able” male bodies as the norm have been illustrated by feminists in areas as wide ranging as medicine and artificial intelligence (Criado-Perez 2019). They demonstrate alarming practical results that still exist, such as the current failure to recognise heart attacks in women because they differ from the male norm. Many examples raise important intersectional issues, such as the way that black faces are not recognised as easily as white faces by Artificial Intelligence (AI). Sadly, the ability of AI to recognise faces ranges from the best to worst as: white males, white females, black males then black females. This sounds as if it could be beneficial for privacy reasons but unfortunately this failure has resulted in false arrests in the US, exacerbating the problem that Black men are subject to a disproportionate number of arrests (A. J. Beck 2021). (3) “The Reappropriation of Human Bodies as unique, narratable, and vulnerable” Huzar and Woodford’s third category of Cavarero’s method refers to her “reappropriation of human bodies as unique, narratable, and vulnerable”

Introduction to Section 1 11

(Huzar and Woodford 2021, 17). I have given examples of her analysis of the uniqueness, and narratability of bodies and their life stories above. Cavarero developed her analysis of vulnerability later than her emphasis on an individual body’s uniqueness (and relationality). Cavarero’s move to consider bodily vulnerability also provides an important link with her earlier focus on birth rather than the philosophical obsession with death. To explain, I will draw from Huzar and Woodford (2021, 35), who carefully outline this link. They explain that vulnerability (from vulnus meaning wound) has been described in terms of “bare life” and the possibility that we can be exposed to violence and death. Cavarero views this reference as a “masculine trope” (Huzar and Woodford 2021, 36). She associates this masculine trope with a philosophical obsession with death rather than the possibility of thinking birth, as discussed above. Again, Cavarero employs a clever switch of perspective with respect to our shared human vulnerability. In doing so, she prompts us to think of birth, care and even joy rather than death and violence, employing another audacious substitution. Huzar and Woodford summarise it well: [O]ur common vulnerability also opens us up to the care of others; of forms of life that employ pleasure and happiness. Hence, for Cavarero the paradigmatic case of vulnerability is not the wounded soldier but that of the newly born who is completely vulnerable. (Huzar and Woodford 2021, 36) Of course, Cavarero does not argue that women should have children, as discussed. Her concern to associate vulnerability with care leads to the final area on the list of Cavarero’s method. (4) “Cavarero’s Ethics of Non-Violence: Inclined Relationality and Care” Finally, Huzar and Woodford examine how Cavarero’s method leads her to an ethical argument for nonviolence, concerned with relationality and care. In her contribution to Toward a Feminist Ethics of Nonviolence, Battersby (2021) points out that such relationality need not be limited to the relationship of mother and child. Relationality can also be viewed in the context of friendship. Following from this point, it is not too strained to view the act of writing a friend’s story as itself an act of care in that it helps the friend to see her life as coherent and meaningful, as discussed above. In Inclinations, Cavarero returns to relationality and care, illustrating her ideas by employing different cultural icons. Initially, the argument appears strained and easily dismissed but, as with many of Cavarero’s philosophical works, it grows on you and starts to shift your perspective as she layers on more cultural examples and explores their meanings. The main icon employed is that of Leonardo Da Vinci’s painting, Madonna and Child with St Anne. He paints Mary leaning over holding onto Jesus and supporting him. This image of

12 Section 1

the mother leaning towards her child demonstrates, for Cavarero, the replacement of the vertical line with that of the diagonal. By employing many cultural icons and theoretical analyses, she moves our perspective away from that of the perpendicular linked with (male) rectitude, of being upstanding, to the (female) diagonal associated paradigmatically with the this image of the inclined body of the caring mother. Her move is evocative of the traditional split that appears, for example, in Kant’s Anthropology (1974). Kant depicts men as upright (capable of morality) and women as simply behaving beautifully by being constantly alert to the needs of others.9 However, Cavarero is not simply challenging male morality (rectitude) by focusing on women’s caring (leaning in). This is not Carole Gilligan’s replacement of (male) Kantian ethics with (female) ethics of care.10 In Cavarero’s finely analysed icons and ideas, she reworks Kant’s stereotype of women to create images that undermine his position by altering the portrayal of women. Again, like Irigaray, she takes the risk of reproducing stereotypes in order to challenge them and open up a different perspective. On the question of “caring mothers,” Judith Butler, in the same volume, says of Cavarero, She is careful not to assume that all women are mothers, or that they are all by nature caring; nor does she indict men for all being figures of rectitude. She is dealing with generalizations that do not always fit the instance. So it makes no sense to find examples of uncaring mothers and caring fathers, since all that is surely possible without the dominant norms becoming fully dislodged from their place. (Butler 2021, 56) As Butler describes Cavarero’s work in Inclinations: “I agree in the most enthusiastic way with her brilliant and precise efforts to expand upon the notion of a relational ontology” (2021, 88).11 This sketch of Cavarero’s method also introduces areas of her thought that have been reworked over the entirety of her oeuvre. One central theme has been 9 This is the image of women who feel that they have a special sort of morality characterised as always putting others first, as discussed in Jean Hampton’s work, which I explore in Chapter 6. 10 The ‘ethics of care,’ discussed within psychology and then extended to other disciplines, is one that is now familiar stemming from the influential work of Carole Gilligan (1982). 11 Butler draws out three points of agreement with Cavarero, which I will briefly summarise: (1) that individualism obscures our understanding of the ethical relation; (2) that ethics as articulated through the prohibition of killing must be understood as part of a broader argument against violence. This is to be conceived as more than simply Hobbes’ characterisation of violence as self-defence or self-interest. It is broader than can be conceived through his individualist framework and requires a relational ontology; (3) regarding the ways that women are positioned such that they are blocked from being viewed as subjects who can think.

Introduction to Section 1 13

that of natality, which she has examined by appropriating and refashioning themes from Hannah Arendt. It is therefore of interest that she has amended her method of theft (and of switching icons and ideas, discussed above) by engaging with Arendt’s work directly to think further about political action in Surging Democracy. This is an important area and I will discuss it in detail in Chapter 4.

Christine Battersby: Method and Themes There are a number of interconnected themes and questions that motivate Battersby’s fascinating oeuvre. In her 2011 paper, “Singularity and the Female Self: Encountering the Other,” she explains, In this essay, I look once again at the issue that provides the focus for all my recent work: the question of the “forgetting” of embodied human differences – especially sexual difference – in cultural history, and the related methodological problem of how to go about rectifying this erasure. (Battersby 2011, 125) The forgetting of sexual difference may initially appear to be progressive if, for example, job interviewers (and the AIs that now decide if someone is invited to be interviewed, trained on existing, often prejudiced, data) stopped gender discrimination. However, Battersby (1998) illustrates why this is a problem: Women experience a sense of dissonance when there is a misalignment (or jarring) between their own experiences of their bodies and what is supposedly “normal.” Battersby makes clear that, despite being focused upon bodily sexual difference and not gender stereotypes, she is concerned with the cultural and historical meanings that we ascribe to such bodily differences. So, for example, the fight of trans persons for recognition is an important shift that has and will further alter how we conceptualise sexual difference (see Battersby 2006, 296). I would add that this is particularly the case in the exemplary work of Paul B. Preciado ([2008] 2013; [2002] 2018; 2020; 2021). Preciado refuses the idea that there is a fixed binary division: I am not a man and I am not a woman and I am not heterosexual I am not homosexual I am not bisexual. I am a dissident of the sex-gender system. I am the multiplicity of the cosmos trapped in a binary political and epistemological system, shouting in front of you. I am a Uranian confined inside the limits of techno-scientific capitalism. (Preciado 2020, 263; cited and discussed in ICA 2022) It is important to note the way that trans persons report feeling pressured to appear as the stereotype of the gender to which they wish to transition by medical gatekeepers who have the power to refuse their medical treatment (see

14 Section 1

Lester 2017, 174). Preciado’s reflection on this problem is also useful for the distancing that he provides from these procedures, in his characterisation of transition as being from one fictional sex to another (Preciado [2008] 2013, 125). He comments that if he wanted to continue taking testosterone, he had a choice between being classified by “two psychoses: in one (gender identity disorder), testosterone appears as a medicine and in the other (addiction), testosterone becomes a substance on which I am dependent” (Preciado [2008] 2013, 232). Like Cavarero, Battersby risks being misunderstood when she focuses on the (changing) cultural understanding of what it is to have a female body compared with the meaning of femininity. However, this distinction is clear throughout her work. In her earlier Gender and Genius (Battersby 1989) she shows how “femininity” – the stereotypes of the way that those assigned female at birth supposedly act – was actually valorised in the male genius. As Battersby summarises, for the Romantics, (male) geniuses were praised for displaying the following feminine stereotypes: [A]n excess of imagination, sensibility, sympathy, emotion, irrationality and even “madness.” The male genius, transcended normal masculinity, rendering himself symbolically “feminine.” (Battersby 2006, 295) Needless to say, a woman – whether or not she was viewed as having “feminine” characteristics – was not viewed as a genius. This concern with thinking about the changing cultural experience associated with having a female body links together inter-related themes in Battersby’s work, which I will consider in turn. (1) The problem of forgetting This includes not only the forgetting of the female body itself, which is central to Battersby’s work, but also the forgetting of feminists’ philosophical interventions and art from earlier times that challenged the normality of the male body and its position as the ideal instantiation of the species. Battersby draws from Adorno (Battersby 1998, ch. 7) and Nietzsche (Battersby 2011, 132–36) to argue that such art can act as a flash of lightning that can illuminate what was forgotten or erased. I detail Battersby’s use of Adorno and contrast his position with Kant in Chapter 3. Battersby’s argument includes, but goes well beyond, the concern that women’s contribution to culture has been lost. There are many reasons for this that include simple repression, for example: women rarely seem to quite fit within specific (male dominated) artistic or philosophical schools; or a change of surname on marriage can make it difficult to trace an artist. These “reasons” themselves also arise from women’s subordination, of course. Battersby is concerned that, in western cultures at this time, women often experience their bodies as being the same as men’s (as the norm) but then suffer

Introduction to Section 1 15

when their bodily experiences then fail to fit. She describes “five features” that are associated with the phenomenology of having been assigned female at birth (and with having accepted this assignment). It may be that some elements are shared with trans men regarding a body that can give birth and with trans women regarding images of the body. This experience is not necessarily straightforward nor necessarily felt or understood in the same way by different members of a group. Preciado ([2008] 2013; 2020), for example, gives a detailed commentary about his transition and at no point appears to experience himself as failing to fit with the male norm or suffering from gender dysphoria. He is aware – of course – of being treated in this way but (rightly) makes the point that this is because of a failure of others. This raises the question as to whether there is a continuum (or a qualitatively different experience) of feeling that your body does not fit with the norm that is experienced by those who view themselves as cis women compared with trans and non-binary persons (and indeed many others in relation to disability, race, age, for example) at this point in time. Those who have experienced this “failure to fit” should not be forgotten. In the final chapter of this section of the book, I also explore Battersby’s position on this important question of forgetting in the context of her critique and reworking of the Kantian sublime. I compare her analysis with Warren Montag’s “Spinoza’s Counter Aesthetics” (2020) and his description of what Kant needed to “forget” – i.e. what needed to be erased – in order to conceptualise the Kantian sublime. Both analyses link the political with aesthetics. This problem of forgetting can be understood in the form of a question that Battersby (2011, 126) takes from Michel Foucault, which she describes as: “How can we think the singular that falls outside the ‘universals’ of philosophy?” This question can be raised in terms of different areas of subordination. Battersby (2011, 126) describes this question as one of two that have influenced her work. She crafts detailed illustrations of the way that female artists have reworked the sublime so that they can draw attention to their complex “monstrous” subject position. This – along with feminist philosophy itself – provides resources for thinking of the tensions inherent in experiencing your body as an aberration from the norm. This expression is a response by women artists to the experience of having their bodies characterised as “not-fully-human” or being “never-quite-a-person” Battersby (2011, 126). (2) “But what if the ‘not-fully-human’ and ‘never-quite a-person’ started to speak?” Battersby provides plenty of examples of this positioning of women, as never quite a person, within philosophical frameworks. For example, her detailed analysis of Kant’s Anthropology has linked the way that he viewed women as having animality, possibly humanity, but not personhood (Battersby 1998, 105). This is a problem because, for Kant, personhood denotes the ability to behave morally, that is so important in Kant’s work, as I explore in Chapter 3.

16 Section 1

As Battersby repeatedly (rightly) warns, her reference to women is not a claim that there is a fixed, underlying essence of what it is to have a female body that is being expressed in art. It is a way of thinking differently about what is meant by “essence” when identity is envisaged as something that emerges over time through inter-relationality with others. This problematic phenomenology of bodies viewed as female is historical, cultural, and political, as can be illustrated by contemporary changes, especially in the context of the revolutionary importance of the contemporary trans movement. Current transitions also include the rise of individualism in the developed world that has resulted in cis women rejecting childbirth for better options and, at least, to try to avoid its associated risk of poverty and lower status (U. Beck and Beck-Gernsheim 1995); along with the impact of techno-science (see, for example, Preciado ([2008] 2013)). I will return briefly to Preciado’s work to note a theoretical link that illustrates Battersby’s move of focusing on bodies rather than discourse. Preciado’s Testo Junkie is influenced by Judith Butler but seeks to displace the way in which Butler’s work from Gender Trouble onwards has focused on discursive practices. So, whereas Butler points out the ways that heterosexuals as well homosexuals parody gender, Preciado transfers his analysis onto the bodies of cis and trans persons. Preciado’s equivalent argument to that of Butler’s parody is therefore to point out the extent to which cis men are often prescribed testosterone and many cis women take female hormones (“the pill”) for years. Preciado refers to this as “biodrag” ([2008] 2013, 163) to highlight the extent to which being cis today is not any more natural than being trans. To underline this challenge to the naturalness of the “norm,” he refers to cis heterosexual “politically assisted procreation technology” (Preciado [2008] 2013, 47). Similarly (in this respect), Battersby is also concerned with the body and what is problematic about the experience of those assigned female at birth. She is considering the position of “women” and their discomfort regarding their “abnormal” bodies but who may not necessarily consider experimenting with testosterone or transitioning. This emphasis on bodily experience lies in contrast with an emphasis on discourse and what is viewed as “feminine” behaviour. A useful illustration provided by Battersby is the behaviour that has been viewed as indicating genius, discussed above. The experience of these tensions is explored further in “Antinomies of the Female,” a chapter in The Sublime, Terror and Sexual Difference (Battersby 2007; see also 2006). In this chapter, Battersby provides detailed analyses of a range of artists who rework the Kantian sublime in ways that give expression to this “monstrous” position. While it is not possible to go into her detailed and subtle analysis of all these artists. I give a (too brief) example of the richness of this analysis in Chapter 4 and apply one of her examples in Chapter 12. (3) Female Subject Position today in the West: The Five Characteristics In The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity, Battersby (1998) lays out a summary of the cultural experience of having a

Introduction to Section 1 17

female body in the West at that point in time, which I will outline below. The basis of this analysis is stated succinctly in her later paper “Singularity and the Female Self: Encountering the Other”: It is no good simply demanding that women are treated as, and referred to as, “persons” or “humans,” if it turns out that we understand what it is to be a person or a self only by normalizing the mind-body relationship that marks males in our culture. (Battersby 2011, 126) Battersby goes on to describe the ideal adult male, in western culture, as an isolated, self-contained, individual, with much loftier concerns than with his body. He is envisaged as only “contingently connected” with others “by relations of conflict, power or simple aggregation” such that relationality appears to be optional rather than central to what it is to be a person or self (2011, 126). In contrast, Battersby describes five features within the western female subject position that are aberrations from the male norm, providing a summary of her analysis from The Phenomenal Woman. She is worth quoting in detail, as this remains one of the central planks of her work and is employed to consider what produces a tension in the lived experience of female artists that can attract them to represent the tension in art. This is particularly the case with the subject matter of sublime art in which the artists she discusses find resources to explore the self/other relations, as I will discuss further in Chapters 3 and 4. I will quote her summary and then comment on each one of the “features” below: 1

2

3

4

5

Natality: the potential to give birth and the fact of being born. Thinking identity as emerging out of processes of birth undermines the substance model of identity that still dominates contemporary metaphysical debates. Physiological dependence: this emphasizes the modes of dependency that are a necessary aspect of the human condition, both before birth and also during childhood and other times or states of physical dependence… Pregnant embodiment: there is an “other within” which gradually attains its own identity over time. This upsets any ontology that treats “self” and “other” as necessarily opposed. In the case of pregnancy, the “other within” cannot be conceptualized as the “enemy within.” The “other” emerges out of the embodied self, but in ways which mean that two selves emerge and one self does not simply dissolve into the other. Fleshiness: being “female” in our culture involves an identity that is fleshy in ways that “being male” does not … [A]s such, the fleshy female subject troubles the notion of a free or autonomous and individualized “soul” or “mind” that merely inhabits the flesh. Cognitive dislocation: this is a consequence of the other four features. Given the aberrant nature of the “female” with respect to the “normal”

18 Section 1

(male) modes of selfhood and personhood in western modernity, the female subject has to negotiate the monstrous, the inconsistent and the anomalous, especially with regard to freedom, flesh and the self other boundary. (Battersby 2011, 127–28) I will consider each of these in turn. (1) Natality. As discussed above, Battersby shares with Cavarero a concern with the way that philosophy has traditionally ignored the need to think of birth philosophically, while being obsessed with death. For example, it required a remarkable historical blindness to sexual difference for philosophers to fail to recognise that a description of “what it is to be human” is unsuccessful if it cannot even conceptualise pregnancy, a body that can become two, as Battersby (1998, 61–80) illustrates in her analysis of Kantian metaphysics. I return to this in Chapter 3 and Chapter 4, in which I will discuss her attack on the image of our “essence” as something that is fixed. Battersby also discusses the implications of pregnant embodiment philosophically, which I discuss below. (2) Physiological dependence is associated with the female body because the foetus is obviously dependent on the mother’s body. This also extends to the fact that culturally cis women have then breast fed and been carers. This has included working class women or refugees in the roles of “wet nurse” for example. Battersby’s argument is straightforward: women’s position is associated with the giving of care. This role necessarily involves recognising that some (children for example) are physiologically dependent on others as a norm. As is well known, this image of human dependency is downplayed in an individualistic patriarchal society in which men are envisaged as never requiring others. See, for example, Fraser and Gordon (1994), who illustrate how the dependence of men upon women’s labour within the home is erased. Importantly, they also critique the associated racist mischaracterisation of Black single women with children in the US. (3) Battersby points to the process of pregnancy as providing a way of challenging many philosophers’ conceptions of the self/other relation. To illustrate this, Battersby explains how, for Kant, there is a split between the transcendental self and transcendental object, with the result that the self is established in opposition to matter. This matter itself is envisaged as dead and so unable to actively change into “new shapes and identities” (Battersby 1998, 101). In other words, matter – as Kant understands it – is unable to give birth. On the contrary, for Battersby, pregnant embodiment necessarily involves thinking of self and other in ways that form “patterns of relationality” that mean that the self and other gradually emerge as separate rather than being defined though a split between them. I will discuss Battersby’s reading of the Kantian transcendental self further in Chapter 3. (4) There has been a historical association of women’s bodies as fleshy and women as more associated with the body compared with men, who are associated with the mind. I would add that there is a history of women’s bodies

Introduction to Section 1 19

being viewed as more vulnerable than men’s bodies. This supposed “vulnerability” is also associated with penetration of the male body. Preciado (2020, 119) examines a link between the many cis women who take the pill and gay men who take medication (Truvada) to lower the risk of HIV transmission. Both do so in ways that avoid their partner (the higher status “active” male) having to use a condom, thereby making penetration appear more “natural,” while also defending themselves against its risks. While focused on women, Sophie Lewis’s comparison between the inside of the human body (viewed as passive) with penile penetration is also relevant (Lewis 2021). She points out that the insides of women’s bodies are active, while discussing the (cultural) ways in which there is a lack of symmetry between penetration and what she labels “circulsion.” In Full Surrogacy Now, Lewis refers to Bini Adamczak’s proposed term “circulsion” as the (active) antonym of penetration, designating the same process but from the opposite perspective. It entails active “enfolding, sucking and – yes – gestating” (Lewis 2021, 81). The context is a discussion as to why gestational surrogates should be viewed as doing work. Lewis comments: Failure to fully appreciate the ubiquitous reality of circulsion results in a thoroughgoing analytic femmephobia and means that, unlike the voiceboxes of call-centre workers, the muscles of athletes, or the eyeballs of those on the smartphone-assembly line, it is assumed that the “inside of a woman’s body” cannot work: it can only be defiled, exposed and ceded. (Lewis 2021, 81; emphasis added)12 I consider Wendy Brown’s analysis in States of Injury (Brown 1995) focusing on the link between “vulnerable” female bodies and the boundaries of the state in the next chapter in the context of Cavarero’s Stately Bodies. The #MeToo movement has been important in continuing to challenge the stigma that surrounds the victim survivors of sexual harassment and rape. This movement, started by a Black woman, Tarana Burke, challenges the meaning of such crimes as defined by men who then judge women as somehow marked or diminished by sexual offences. It is now difficult to understand the reasoning of an Indian Supreme Court Chief Justice Sharad Arvind Bobde, who on March 1, 2021 asked the rapist of a 16-year-old girl if he wanted to marry her to avoid jail. I return to this problem in Chapter 4. In Chapter 6 I include a chapter on Jean Hampton, who examines how a crime treats people as if they were subordinate, along with the psychology involved when – as a result of living in a misogynist society – the victim survivor holds the incorrect assumption that she is actually diminished by a crime. 12 Lewis is quoting from (and criticising) Julie Bindel’s Guardian column of April 30, 2018. Lewis quotes Bindel as saying, “Prostitution is not a job. The inside of a woman’s body is not a workplace.”

20 Section 1

(5)The “cognitive dislocation” that Battersby views as the fifth feature, focuses on the anomalous position of women as monstrous that arises from the way that their bodies are positioned as not quite fitting with the male norm, as described above. They are less clearly envisaged as free and autonomous atomistic individuals. This is because such (problematic) individualism is strained when women are confronted with the question of dependency that arises between foetus and mother and in traditional care work (whether this care work takes place inside or outside the home). As she argues, pregnancy and caring are associated with the metaphysical image of an emergence of self and other over time in contrast with a self that is defined against otherness, as illustrated by Kant (Battersby 1998, 110), discussed above. These five features are associated with the phenomenology of having a female body in a patriarchal society in particular cultures and times. The individualism is also, obviously, associated with capitalist societies. Battersby considers how the experience of having a female body – along with its cultural expression – is forgotten and what is at stake in remembering. She states, This shattering of conceptual understanding via the remembrance of forgotten differences involves a changed relation to time, and can be produced by an event, by a forgotten “intuition” and also by art. Furthermore, when this “shock” breaks apart the fragile unity of the “real,” it also, in effect, fractures the “I” to reveal what might be termed the “others within” – beings or entities which are not outside the symbolic order, but which have been subsumed under universals and thus vanish within its folds. (Battersby 2011, 133) This returns us to Battersby’s interest in the forgotten ways of being embodied. The bodily experience of those with female bodies, along with those artists and theorists whose work brings to light this experience, are often forgotten or erased. Nevertheless, they are not lost to us and their work, along with images of women’s “monstrous” embodiment can re-emerge. I consider an example of this concern with forgetting in Chapter 4. Relevant to such art is the work of trans and disabled artist Lorenza Böttner illustrated and discussed in Preciado (2018). The “double vision” discussed in the section on Cavarero, works in different ways. Women (or any subaltern) can recognise the “norm” and also recognise that they fail to fit within this norm. Above, I employed the example of any woman subject to domestic violence who is very attentive to her husband’s emotions and beliefs in ways that are not reciprocated. This is because, in this extreme case, it is a survival strategy. There is also a complication in that it is not simply this failure to fit that is the problem but the harmful and stigmatised ways in which all women are characterised by the norm, a position accentuated in the case of trans and non-binary persons. Both Battersby and Cavarero, in different ways, turn to both art and philosophy to challenge the meaning and operation of this norm.

Introduction to Section 1 21

Section Chapters In Chapter 2, “Elizabethan ‘Spinning’ and Penelope’s Weaving: The Political, the Common Law and Stately Bodies, I analyse Cavarero’s (2002) book Stately Bodies: Literature, Philosophy, and the Question of Gender. In particular, I examine the role of the public, private and political by drawing upon the situations of two women whose lives feature in her work: Elizabeth I and Penelope. I explore Cavarero’s exposition of the metaphor of the king’s two bodies in the common law, along with her critique of hylomorphism. Finally, the chapter extends her work in Stately Bodies by considering different images of the power of the body in later political discourses regarding the worker’s body and the advance of techno-science. Chapter 3 is entitled “Untimely Voices: Rethinking the Political with Adriana Cavarero and Christine Battersby.” In common with this introduction and Chapter 4, in Chapter 3, I bring together the work of both Battersby and Cavarero. It is useful to juxtapose the work of these contemporary feminist philosophers, given their common interest in relational feminist ontology. As such, they both reject traditional positions on selfhood but also (in different ways) stress the materiality of bodies and refuse post-structuralist analysis. My aim in this third chapter is to draw out some of the politico-legal implications of their differing images of selfhood. In the final section, I then apply both their (different) approaches to the concept of self to ask how their respective arguments can inform contemporary political questions. In Chapter 4, I explore the work of Battersby and Cavarero via a third philosopher: Spinoza. Again, this allows me to highlight the ways that these two feminist philosophers share a concern with relational ontology; how they both challenge the idea of women as monstrous aberrations; and how they both force their readers to see gender differently. This exploration also allows me to show the extent to which their approaches to problems also differ.

Bibliography Arendt, Hannah. 1958. The Human Condition. Charles R. Walgreen Foundation Lectures. Chicago: University of Chicago Press. Bartky, Sandra Lee. 1990. Femininity and Domination: Studies in the Phenomenology of Oppression. London: Routledge. Battersby, Christine. 1989. Gender and Genius: Towards a Feminist Aesthetics. London: Women’s Press. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Battersby, Christine. 2006. “Flesh Questions: Representational Strategies and the Cultures of Birth.” Women: A Cultural Review 17 (3): 290–309. https://doi.org/10.1080/ 09574040601027439.

22 Section 1 Battersby, Christine. 2007. The Sublime, Terror and Human Difference. London: Routledge. Battersby, Christine. 2011. “Singularity and the Female Self: Encountering the Other.” Women: A Cultural Review 22 (2–3): 125–142. https://doi.org/10.1080/09574042.2011. 561113. Battersby, Christine. 2021. “Cavarero, Kant, and the Arcs of Friendship.” In Toward a Feminist Ethics of Nonviolence, edited by Timothy J. Huzar and Clare Woodford, 109–120. New York: Fordham University Press. https://doi.org/10.2307/j.ctv11990m1. Beck, Allen J. 2021. Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018 NCJ 255969. U.S. Department of Justice. Beck, Ulrich, and Elisabeth Beck-Gernsheim. 1995. “Introduction: Individualization and Ways of Living and Loving.” In The Normal Chaos of Love, translated by Mark Ritter and Jane Wiebel, 1–10. Cambridge, UK: Polity Press. Brown, Wendy. 1995. States of Injury: Power and Freedom in Late Modernity. Princeton NJ: Princeton University Press. Butler, Judith. 1996. Excitable Speech: A Politics of the Performative. New York: Routledge. Butler, Judith. 2021. “Leaning Out, Caught in the Fall: Interdependency and Ethics in Cavarero.” In Toward a Feminist Ethics of Nonviolence, edited by Timothy J. Huzar and Clare Woodford, 46–62. New York: Fordham University Press. https://doi.org/10. 2307/j.ctv11990m1. Cavarero, Adriana. 1995. In Spite of Plato: A Feminist Rewriting of Ancient Philosophy. Translated by Serena Anderlini-D’Onofrio and Áine O’Healy. Cambridge: Polity. Cavarero, Adriana. 2000. Relating Narratives: Storytelling and Selfhood. Translated by Paul A. Kottman. London: Routledge. Cavarero, Adriana. 2002. Stately Bodies: Literature, Philosophy, and the Question of Gender. Translated by Robert de Lucca and Deanna Shemek. The Body in Theory. Ann Arbor: University of Michigan Press. Cavarero, Adriana. 2014. 2016. Inclinations: A Critique of Rectitude. Translated by Amanda Minervini and Adam Sitze. Stanford CA: Stanford University Press. Criado-Perez, Caroline. 2019. Invisible Women: Data Bias in a World Designed for Men. New York: Abrams Press. Firestone, Shulamith. 1971. 2003. The Dialectic of Sex: The Case for Feminist Revolution. New York: Farrar, Straus and Giroux. Fraser, Nancy, and Linda Gordon. 1994. “A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State.” Signs 19 (2): 309–336. https://doi.org/10.1086/494886. Gilligan, Carol. 1982. In a Different Voice Psychological Theory and Women’s Development. Cambridge MA: Harvard University Press. Huzar, Timothy J., and Clare Woodford. 2021. “Introduction: Adriana Cavarero, Feminisms, and an Ethics of NonViolence.” In Toward a Feminist Ethics of Nonviolence, edited by Timothy J. Huzar and Clare Woodford, 7–32. New York: Fordham University Press. https://doi.org/10.2307/j.ctv11990m1. ICA, dir. 2022. Paul B. Preciado with Jack Halberstam. https://www.youtube.com/wa tch?v=yJge51E4WMY. Kant, Immanuel. 1974. Anthropology from a Pragmatic Point of View. Translated by Mary J. Gregor. The Hague: Nijhoff. Lester, C.N. 2017. Trans like Me: Conversations for All of Us. First US edition. New York: Seal Press. Levick, Barbara, and Richard Hawley, eds. 1995. Women in Antiquity: New Assessments. London and New York: Routledge.

Introduction to Section 1 23 Lewis, Sophie. 2021. Full Surrogacy Now: Feminism against Family. London: Verso. Merck, Mandy, and Stella Sandford, eds. 2010. Further Adventures of the Dialectic of Sex: Critical Essays on Shulamith Firestone. Breaking Feminist Waves. New York: Palgrave Macmillan. https://doi.org/10.1057/9780230109995. Montag, Warren. 2020. “Spinoza’s Counter-Aesthetics.” Intellectual History Review 30 (3): 411–427. https://doi.org/10.1080/17496977.2020.1732704. Okin, Susan Moller. 1989. “Justice as Fairness: For Whom?” In Justice, Gender, and the Family, 89–109. New York: Basic Books. Pande, Amrita. 2014. Wombs in Labor: Transnational Commercial Surrogacy in India. South Asia Across the Disciplines. New York: Columbia University Press. Preciado, Paul B. 2008. 2013. Testo Junkie: Sex, Drugs, and Biopolitics in the Pharmacopornographic Era. Translated by Bruce Benderson. New York: The Feminist Press at the City University of New York. Preciado, Paul B. 2002. 2018. Countersexual Manifesto. Translated by Kevin Gerry Dunn. Critical Life Studies. New York: Columbia University Press. Preciado, Paul B. 2018. Every Life Matters: The Work of Lorenza Böttner. Presented at “Hold Me Now – Feel and Touch in an Unreal World,” Stedelijk Museum, Amsterdam, June 28. https://www.youtube.com/watch?v=rwvS-FprT9o. Preciado, Paul B. 2020. An Apartment on Uranus. Translated by Charlotte Mandell. New York: Semiotext(e)/Foreign Agents. Preciado, Paul B. 2021. Can the Monster Speak?London: Fitzcarraldo Editions. Rawls, John. 1971. 1999. A Theory of Justice. 2nd ed. Oxford: Oxford University Press.

Chapter 2

Elizabethan “Spinning” and Penelope’s Weaving The Political, the Common Law and Stately Bodies

This chapter examines the public, private and political in the work of Adriana Cavarero by drawing upon the situations of two women whose lives feature in her work: Elizabeth I and Penelope. It includes an analysis of the way in which Cavarero is rethinking Hannah Arendt’s view of “the political.” Cavarero’s exposition of the metaphor of the king’s two bodies in the common law is explored, along with her critique of hylomorphism. Finally, I extend her work in Stately Bodies by considering different images of the power of the body in later political discourses regarding the worker’s body and the effect of the advance of techno-science.1

Introduction I will start with a famous quotation from Elizabeth I, addressing the troops at Tilbury Dock: I may have the body of a weak and feeble woman, but I have the heart and stomach of a king, and of a king of England too, and think foul scorn that Parma or Spain, or any prince of Europe should dare to invade the borders of my realm; to which, rather than any dishonour shall grow by me, I myself will take up arms, I myself will be your general, judge and rewarder of every one of your virtues in the field. I know, already for your for­ wardness you have deserved rewards and crowns; and we do assure you, in the word of a prince, they shall be duly paid to you. (Neale 1990, 302) I will discuss Elizabeth’s adoption of the metaphor of the two bodies of the king in a moment. However, it is the last part of the quotation that is my 1

Reprinted by permission from Springer Nature Customer Service Centre GmbH: Springer Law and Critique “Elizabethan ‘Spinning’ and Penelope’s Weaving: The Political, the Common Law and Stately Bodies,” Janice Richardson, 2006: https:// www.springer.com/journal/10691.

DOI: 10.4324/9780429329678-3

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favourite. It is reminiscent of Adriana Cavarero’s ([1990] 1995, 31–56) celebra­ tion of the Maidservant from Thrace who laughed at the first philosopher for failing to see what was in front of him. The troops listening to Elizabeth did not really believe her “political spin” that kings or queens have two bodies: one mortal and the other immortal, but – as Elizabeth astutely recognises – they were very clear as to whether or not they had been paid. I should explain that in the UK “spin” has become of fashionable term for putting a positive gloss upon events and is now associated with public relations specialists – particu­ larly those employed by the government. Like Sir Walter Raleigh’s bowls, their words are portrayed as not running straight but as showing a bias or giving a slant to the truth. The quotation from the Tilbury Dock speech is unusual because it refers to Elizabeth, who had a female body, and yet also claimed to have the “heart and stomach of a king,” a political body. As Cavarero (2002) demonstrates, women have been cast by male thinkers into the realm of the corporeal as non-political. Elizabeth’s speech therefore provides a curious failure to fit within Cavarero’s framework. This is accentuated by the queen’s reference to those “who dare to invade her realm.” As Cavarero illustrates, the sovereign’s body was used to represent the kingdom. In her example of Livy’s fable, the “stomach of the king,” was central to the metaphor (Cavarero 2002, 104). Livy describes an organic image of the state in which different parts of the body rebel and refuse to feed the stomach and as a result damage themselves. The message is clear: the populace should not rebel because they harm the “body politic” of which they are a part. Wendy Brown (1995) also gives examples of numerous myths in which the origin of the state is associated with the need to protect supposedly vulnerable female bodies. These link the penetrability of the borders of the state with the penetrability of female bodies in rape. (Whilst it is, of course, true that men can also be penetrated this tends to be ignored.) In the Tilbury Dock speech Eliza­ beth is able to scorn her enemies who would dare to “invade the boarders of her realm” because she has the body (or at least the important heart and sto­ mach) of a king. I will start by looking at the metaphor of the two bodies of the king in the common law and then go on to draw on the image of Elizabeth to consider the relationship between public, private, and political in Cavarero’s work. This is developed in the third section by considering different meanings of Cavarero’s claim that the “non-political’2 bodies of women have power, along with her critique of hylomorphism. Finally, I will look at the different images of the power of the body in later political discourse by considering the way in which the metaphor has changed with the advance of technoscience. 2

Whilst the English edition of Stately Bodies refers to women’s bodies as being “non­ political” Cavarero is clear that this is a problem of translation. She uses the term to refer to a different type or nature of politics.

26 Section 1

The Common Law Origin of the King’s Two Bodies Cavarero traces the metaphors of the king’s two bodies as part of a fascinating analysis of the way in which the polis, the political realm of free men, was defined against bodies and bodily needs, which were viewed as the concern of women and slaves in ancient Greece. (This corresponds to the Arendtian division of action and labour, to be discussed later, along with her third term: work.) Cavarero’s argument, supported by detailed illustrations, is that, even though bodies are viewed as non-political, the image of “the body” returns as a metaphor in political discourse. It is relevant to note that, in her earlier work, Cavarero (2002, 83) ridicules the idea that there is such a thing as “the body” in the abstract, pointing out that bodies are always sexed. In Stately Bodies she argues that the body, which is banished from the polis, is the female body but that the body used in political metaphors is that of an adult male; a strange adult male who was never young and does not age. This male body can, however, be struck down by disease, as illustrated by images of political dissent as infection. The proposed cure is envisaged as surgery: amputating the unruly part. As Cavarero (2002, 116–20) discusses, the doctrine of the king’s two bodies was a creation of the common law. Common lawyers were just as keen as the Crown to use “spin.” For example, just as the monarch was happy to employ the image of the king’s character angelicus because it represented the idea of kingship as immutable with time (Kantorowicz 1997, 8) so an English sergeant in law claimed that “the common law had been in existence since the beginning of the world.”3 The main case relating to the doctrine of the king’s two bodies is outlined in Plowden’s Commentaries. It concerned the fact that Elizabeth I’s half brother, Edward VI, had made a lease of certain lands of the Duchy of Lancaster, whilst he was under age. Happily for those concerned, in 1562 (4 Elizabeth) the court agreed: that by the Common Law no act which the king does as king shall be defeated by his non-age. For the king has in him two bodies, viz, a Body natural and a body politic. (Plowden 1816, 212) Ernst Kantorowicz (1997), to whom Cavarero refers, traces the history in detail. The image of the two bodies of the king is linked to that of Christ as having both a natural human body and an eternal, mystical body. There was a further analogy in that the metaphor was in both cases extended to represent a body of people. The Church represented the body of Christ and the king’s body represented the nation.

3

Wallyng v Merger (1470) 47 SS 38 per Catesby sjt.

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When Elizabeth evoked the image of the king’s two bodies in the Tilbury Dock Speech her approach had much in common with her lawyers. Their speeches may have been packed with grand metaphor but their focus was firmly on the pragmatic issues of money and land. Elizabeth rallied the troops with a great speech but made sure that she promised payment; her courts were con­ cerned that a claim to land that her brother had leased should not be defeated simply because the king was not of age at the time. The kingship was viewed as wiping out any legal disability such that the lease was valid. This was explained using a metaphor of the king’s two bodies: His body politic, which is annexed to his Body natural, takes away the Imbecility of his Body natural. (Plowden 1816, 213) As part of this argument they employed a legal maxim that “the worthier draws to itself the less worthy.” Kantorowictz points out that this legal maxim was common amongst mediaeval jurists. Curiously, he says that it was regularly invoked when a persona mixta was at issue. He quotes the Italian, Balbus, who linked the maxim with the position of intersex persons: [I]f a union of two extremes is produced, whilst the qualities of each extreme abide, then the one more prominent and striking draws to itself the other one. (Kantorowicz 1997, 10) Presumably he is thinking of stereotyped male characteristics outweighing female ones, here – although this is not made explicit. Whilst I hate to be prosaic, I do not think that this is the right approach to understanding the ratio decidendi of the case. A better approach is to decide which facts were material to the decision. Sometimes listening to the judges’ metaphors is just a distraction if your aim is to look at who won and why in order to try to predict future decisions. Here, the ratio seems to be simply that monarchs are not subject to any legal disability. A better analogy than that of intersex persons, who do not feature in the case, would be the position of Elizabeth’s half sister, Mary I (1516–1558), who took the throne after Edward VI. She married and therefore was at risk of suffering a legal disability, potentially analogous to Edward’s. The position of married women was governed by the doctrine of coverture. The doctrine of covert­ ure is itself analogous to the doctrine of the king’s two bodies, being another common law fiction that is employed to link individuals together in law and to produce subordination (see Chapter 7). In both doctrines there is an image of two bodies being contained in one person. In the example of the king’s two bodies, the body politic dominates the body natural; just as the male body is viewed as dominating the female body in the doctrine of

28 Section 1

coverture. Blackstone later famously described the doctrine of coverture in the following terms: By Marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover she performs every thing; … and her condition during her marriage is called coverture. (Blackstone 1765, 442–45) It had the effect of preventing married women from having legal personality in their own right, so they could not sue or be sued in the courts or hold property. The concern was that Mary I, as a married woman, would be under a legal disability through her marriage. The legal disability was remedied by the passing of a statute stating that married queens were to be treated “feme sole,” “single” i.e. as if they were single women and hence with the same rights as men to hold property. Constance Jordan (1987) comments that this would appear to dismiss all consideration of the alleged natual inferiority of women whether out of sheer expedience or from some implied reference to the concept that the crown is a corporation and not subject to defects of mortality, that is that the monarch has a second, and wholly functioning body politic. (Jordan 1987, 428) It is interesting to speculate what would have happened at common law had there not been statutory intervention. It is my argument that anyone who received land from Mary would have wanted to keep it and not given a damn about whether or not the metaphor fitted with an image of women’s non-political bodies. They would have cited the same arguments as pertained in the case of the Duchy of Lancaster: that the doctrine of the two bodies of the king applied equally to any legal disability of the sovereign, such as to prevent the crown suffering a disability. If this case had come after that of the Duchy of Lancaster, their opponents (presumably the later crown who wanted to keep the land and argue it had not been effectively given away) would then try to argue that the ratio of the case should be drawn narrower and only apply to the disability of being under age. This demonstrates how the common law works – on a case-by-case basis, with pedantic focus on definitions and where to draw boundaries of the application of previous cases. It does not give broad expression to codes as in the continental tradition. This has made it ideal as a device for ruling (dominating) England and then colonies without much apparent disruption of existing power structures and customs. Any alteration is done on a case-by-case basis, with judicial discretion as to which existing power structures need to be left intact.

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Aylmer (1559), writing in support of Elizabeth I and against John Knox, used this analogy between a king who was weakened through youth or age and a woman. Here, the misogynist reference is to actually perceived weakness rather than legal disability but supports the image of the king’s two bodies, in favour of a female monarch. Jordan also illustrates how this doctrine of the king’s two bodies gives Aylmer a solution to the problem of a married queen. She was two persons politically: a wife who is subordinate to her husband in mar­ ital affairs and a magistrate who is superior to every one of her subjects in the affairs of state. (Jordan 1987, 440) Cavarero is dubious about the ability of queens to be able to utilise the meta­ phor of the king’s two bodies. This is based upon her complex analysis of the metaphor of the king’s body. She argues that, If the apparent neutrality of the body politic might suggest its adaptability for a queen, the idea of a mystical union between the queen’s natural body and the body politic is more problematic … The jurists of the age in question (including those serving Elizabeth) versatile as they were at legal cavils, were not up to dealing with this challenge. (Cavarero 2002, 144) In contrast, I would argue that if it came to the resolution of practical problems of land ownership, common lawyers would be willing to utilise the image of the sovereign’s two bodies – just as Aylmer did and just as Elizabeth did in the Tilbury Dock speech. Both common lawyers and monarchs simply employed the prevailing rhetoric when it was useful for them. The common law purports to be derived from principle but is thoroughly pragmatic. It is often clear that the principle was (and is) used as post hoc justification for decisions. This can be illustrated with numerous examples. There are three I would like to consider because they also involve the image of bodies given metaphorical identity, along with legal identity. The inconsistency of the courts indicates the post hoc nature of the metaphor used. First, trade unions have been viewed as legal entities (united in one body) when it comes to being sued but were not allowed to sue as a body. Similarly, moving forward in time to 1889 when Lady Sandhurst was elected as a London Councillor, she was sued by her opponent, Beresford-Hope, who goes down in legal history as a bad loser, given that the electorate had voted for Lady Sandhurst. She lost the case4 because (having a female body) she was not to be classified as a person and hence was not allowed to be a councillor. However, she was classed as enough of a person to incur a penalty for acting as a councillor without authority. Companies or 4

Beresford-Hope v Lady Sandhurst (1883) 23 QBD 79.

30 Section 1

corporate bodies, of course, are classed as persons and have not suffered from such inconsistencies. A further common law inconsistency derives from the treatment of monk’s bodies. The common law adopted canonical law and classified monks, friars and nuns as dead when they entered the order. They lost their names and any property was devised to their next of kin. Upon the dissolution of the monasteries in 1539, by Elizabeth’s father Henry VIII, he was deemed by the common law to have brought them all back to life. When arguing that common lawyers employed the doctrine of the king’s two bodies to give effect to their practical concerns and that they would not have been worried by any inconsistent application of the doctrine had it been expedient, I am making a rather crude point. This does not really do justice to the complexity of Cavarero’s arguments about the metaphor about the body in politics. What is at stake is not the imagination of the common lawyers but a challenge to our understanding of “the political” and its relationship to the public and private, which is discussed in the next section.

Elizabeth and Penelope via Hannah Arendt I want to compare Elizabeth I, who plays a minor role in Cavarero’s Stately Bodies, with another queen, Penelope, who is an important character in Cavarero’s earlier book In Spite of Plato. Penelope is famous for keeping her suitors at bay by weaving and unravelling a tapestry, whilst waiting for her husband Odysseus to return. Elizabeth also famously avoided marrying her suitors but employed the possibility of her marriage to gain a political advantage in international diplomacy – a further example of political spin. The aim of drawing out this comparison between Elizabeth and Penelope is to illustrate the categories used by Arendt, in defining “the political.” This is done in order to consider how Cavarero uses Arendt but also departs from her. In The Human Condition, Arendt (1958) divides human activity into three categories: labour, work, and action. Labour involves the performances of repetitive tasks, such as cleaning, that are needed to sustain life but are never complete. Work is that activity, which creates objects that will exist in the world, for example, the making of pots for storage. Arendt views both of these as predictable. In contrast, action is creative: it is the coming together of people in public in order to change the world in unpredictable ways “through great acts and words.” It draws upon the Greek notion of excellence and upon the idea that these great acts and words will become part of a story that will be retold, allowing the hero a type of immortality. By displaying their virtuosity in public they reveal, not only their qualities, but also “who” they are. Elizabeth’s Tilbury Dock speech, which is now part of English history, is an example of this genre. The same applies to her use of the possibility of her marriage to aid her international negotiations. Her place and time was in – what Cavarero describes as – the political world of men compared with the separatist Penelope who with her own hands carves out and defends her own space.

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How could Penelope’s weaving be classified in Arendtian terms? The most obvious classification of weaving is that it is work: it produces a tapestry that then exists in the world. However, Penelope unravels this each night so there is no final product. This makes the enterprise sound more like labour because it is a repetitive and menial task, traditionally linked with women’s activities of looking after the body. However, as Cavarero points out in her In Spite of Plato (Cavarero [1990] 1995, 18), Penelope is demonstrating metis. Her guile is the counterpart to that of Odysseus. Her weaving can be viewed as action because it has the effect of safeguarding the crown. Cavarero refuses this move in order to stress that Penelope creates her own space and time – in which she, with her handmaidens are rooted – through her bodily movement and the cadences of her work. Whilst Penelope’s weaving appears to be a private act, it is also political because she is in the unusual circumstances of being in a royal family. Had she not been part of a royal family, but had been employing a strategy to avoid sexual harassment from so-called suitors, then this would not have had the public element that would have qualified it as political action for Arendt. However, with the influence of feminism, the division between public and pri­ vate has been challenged. There is recognition of a broader view of power than that which is wielded by the state, as illustrated by the expression, “the perso­ nal is political.” Therefore, I would view Penelope’s act of avoiding sexual harassment as “political” in a broader sense. In Stately Bodies, Cavarero adopts the narrower traditional image of “the political” as linked with the polis/state, with what is done in public, and traces how this is defined in opposition to the bodies of women. So, instead of taking the usual feminist route of broadening the definition of “political,” Cavarero (in Stately Bodies) keeps the narrow definition of the term political (as linked with the polis) in order then to broaden the definition of “power.” This is obviously a broader view of power than that linked with the polis because Cavarero (2002) describes women’s position: the “corporeal as non-political”5 as having both “power and knowledge.” When describing Penelope after Odysseus’ return, Cavarero draws an image of Penelope and her handmaidens in the weaving room, recalling their story and sharing a joke together. This resonates with Cavarero’s ([1997] 2000) later description in Relating Narratives of two women, one of whom writes the other’s life story, as introduced in Chapter 1. The woman whose story has been written, Emilia, is moved by this and carries a copy of it with her at all times. Cavarero’s description of these women marks her separation from Arendt. Whereas the stories that are told about Arendt’s heroes are of grand events witnessed by strangers in public in which the hero shows “who” he is, for Cavarero’s women, these stories detail a more prosaic family life. In her dis­ cussion of Brecht in Men in Dark Times, Arendt refers to the 5

This should have been translated as refering to a different type of political.

32 Section 1

insult added to the poor’s injured lives by the fact that their sufferings remained in the dark and were not recorded in the memory of mankind. (Arendt 1968, 238) Here, Arendt does refer to the attempt of the oppressed, including servant girls, to be remembered through ballads. The difference is that in Relating Narratives Cavarero describes the narration as “if it were already a political act” (Cavarero [1997] 2000, 59). As I will discuss below, this use of the term “political” is different from that employed in the context of discussions in Stately Bodies. First, I will look more closely at Cavarero’s narrative self and its relationship to the political. It is possible to draw a distinction between a person’s narrative which becomes part of our history and culture, such as Elizabeth’s Tilbury Dock speech, which Arendt describes as the mark of action, and those narratives that are part of what it is to be, or have, a self. This second use of narrative, that appears central in Cavarero’s work, resonates with that of the philosopher of mind, Daniel Dennett, in his paper, “Speaking for Our Selves” (Dennett and Humphrey1989). Dennett reverses Cavarero’s move by using the state itself as a metaphor to illustrate the idea of a Head of Mind, as compared with Head of State. He dismisses the idea of a central organising “self” or ghostly supervisor but does posit the idea of a fictive self as a Head of Mind, with which we represent ourselves to ourselves and to others. This representation is something that develops and is mediated by others. So, it is partly the process of hearing narratives about ourselves (which Cavarero argues we desire to hear) that contribute to this “fictive self.” During development, there may be different potential contenders for the position “Head of Mind.” In the contentious case of those with multiple personalities, Dennett suggests that there is no one clear winner. Whilst this area is controversial, Dennett suggests that there may be different narratives linked with each personality that are sometimes inaccessible to each other. Whilst this personal narrative is not Arendt’s political narrative of great acts, the dynamics of consciousness-raising was based upon a recognition that “personal” narratives are political in a broader sense. The theme of separation of women from the political sphere that is illustrated by Penelope and her maids is repeated in Stately Bodies. Both Antigone and Ophelia leave the arena of action in public. In particular, the image of Ophelia – linked to Undine who “Goes Away” – speaks of a disengagement with any attempt at social change or with action in the Arendtian sense. As Undine no longer even speaks, the separation is total: there is no action, work or labour performed. Unlike Penelope, she is not supported by servants. As the introduction to Stately Bodies makes plain, the bodies of these women are viewed as “non-political,” or as marking out a different meaning to “the political,” defined against the action of the polis. What makes Cavarero’s work controversial for me is not that she points out that women have been associated with the “corporeal as non-political,” but that she goes on to argue that “this

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non-political position is also a source of knowledge and power, that politics is a masculine pursuit that should not be admired or envied.” This is clearly a switch from the view that the stories women tell each other marks a political act. So, in summary, what does Cavarero mean by politics in this context? As already discussed, political action for Arendt must take place in public and such a withdrawal would be a problem for Arendt. As mentioned above, Cavarero’s move appears strange for a different reason: because the feminist position with which I am comfortable argues that “the personal is political.” In other words, that the liberal separation of the public and private spheres has historically meant that, for example, wife-beating was viewed as private and hence not the concern of the state; or that women’s unpaid labour within the home should be viewed as natural. This attack on the narrow definition of “political,” as simply concerned with institutions of state, seems so well accepted that Cavarero’s work in Stately Bodies initially appears odd. As a historical analysis, it moves back to a view of “the political” that centres upon the polis or the royal court and is defined against the powerful yet non-political (or differently political) female body. However, I think this is adopted only for clarity because the fra­ meworks that Cavarero seeks to analyse link “the political” with the polis and her focus is upon what is excluded from this: the female body. This inter­ pretation makes sense, given that in Relating Narratives Cavarero employs a broader view of the political, mentioned above. What is important in Stately Bodies is her broader definition of the “power and knowledge” of the so-called “non – or differently – political” female body that is being developed. I want to look at this in the next section.

The Return of Matter What is it that makes this non/differently political female body powerful, for Cavarero? She points out that historically, when the metaphor of the king’s body as representing the state develops into the doctrine of the two bodies of the king, It is almost as if the metaphor were forced to admit the essential transience of the material of which it is composed. (Cavarero 2002, 115) The metaphor of the state as a body, which Cavarero traces in its different historical forms, is one that does not age and lacks infirmities. However, when it is the natural body of the king that is taken to represent the state, then the ageing and dying of this body is obvious to everyone. Cavarero argues that the doctrine of the second immortal body of the king is used to avert this problem. The fact that it is used is also an admission of the problem. For Cavarero, one aspect of the power of the body seems to be its transience; the fact that it is

34 Section 1

living matter. This argument is supported by her earlier discussion of Plato’s (2008) Timaeus. Cavarero’s (2002, 55–57) analysis of the way that Plato attempts to exclude the matter/mother in the Timaeus illustrates the way that matter was viewed as a passive recipient of form. She highlights Plato’s concern to ensure that matter could only receive form and could not contribute anything of its own qualities. So, matter was viewed as completely passive and dead; something to be imprinted upon by form. Needless to say, this matter was linked with the supposedly passive female mother and form, with the active male. Again, I want to use Arendt as a tool to think about the complexity of Cavarero’s arguments. The reason that, for Arendt, work has traditionally been predictable and yet action is creative is because she had a hylomorphic view of matter that Cavarero challenges. The passive clay becomes a pot because it is worked upon by the potter who has an image in mind as to how the pot should be and the clay is viewed as passive. When it is acknowledged that matter is not dead or passive then it follows that work itself is not predictable. This has become more obvious with the development of techno-science – a point that Arendt herself recognises as occurring with the unpredictability of nuclear power. It is possible to give many other examples, such as OncomouseTM, which is a transgenic mouse, genetically engineered to get cancer so that it can be used in experimental research, genetically modified crops, the impact of computers. It is clear that this “matter” is not predictable. Cavarero’s arguments against Plato’s hylomorphism underline this fact and serve to undermine Arendt’s distinction between work and action from the start. I want to look briefly at how Cavarero’s attack on hylomorphism takes her beyond the concern with human bodies. Scientists involved in this creative and unpredictable research display some other attributes of Arendtian action. See Chapter 4. They now work in groups and their deeds become public demonstrations of their virtuosity – even if their audience, such as those in Hiroshima, are not always appreciative of their skill. However, I think that – even though Cavarero’s focus is upon human bodies – her analysis of the Timaeus forces us to look, not only at the scientist, but at the object of science: the matter of Oncomouse’sTM body or of computer chips. It is this matter that is subject to manipulation by techno-science and yet reacts unpredictably in a manner not recognised by hylomophism. Her argument about the image of the human body, which can never be completely excluded from the political, is based upon a re-evaluation of matter more generally. To return to the question: what is the “power and knowledge” that is associated with women’s “non/differently political” bodies, Cavarero’s critique of Plato’s hylomorphism suggests different approaches. One is to consider the way in which women were positioned as subjects who, because they were concerned with daily welfare, gained specialist knowledge of this area – just as Adam Smith (2008) describes the way in which workers gain a detailed knowledge of the easiest way to carry out a particular task. This is evoked in her image of the

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Maidservant of Thrace, for example. However, she goes further because this knowledge of the concrete world then serves as a bulwark against philosophers who would view it only as appearance. The power of the maidservant’s “non/ differently political” body derives from her labour. As Cavarero puts it, The maidservant’s argument is strong with the power of facts, with the power of one who belongs to this world where she has her roots and lives out her individual existence. (Cavarero [1990] 1995, 36) An alternative more complex reading, that I can only touch upon and which indicates the influence of Irigaray, is to consider the way in which Cavarero’s emphasis upon those who were positioned as “bodily” produces a metaphysics, which undermines a subject/object split, by concentrating upon the position of the object. This strand of her work therefore moves her in the direction of the work of Christine Battersby (1998, 125–47) and her rereading of Adorno. As Paul Kottman (2000, xii) points out, this marks a contrast with the work of Judith Butler for whom the self is marked by a split from the other, despite its similar focus upon narration and hence language.

Sovereign Bodies and Workers’ Bodies I want to finish by thinking about the relevance of Cavarero’s work today, at a time when Elizabeth II’s speech could be amended by Alastair Campbell, a republican Labour government spin doctor – to emphasise her role as grand­ mother rather than owner of the king’s immortal body (Rawnsley 2001, 68). As Cavarero recognises, the image of the body, which was a metaphor for the state, itself changes with techno-science. Anson Rabinbach (1990) has traced the metaphor of the body as a human motor, within science and politics in the nineteenth and twentieth centuries. This switches the focus from the sovereign body to the bodies of workers and details attempts, such as Taylorism, to make workers’ bodies as productive as possible. These workers were again paradigmatically male, of course. As Joan Scott (1987) has illustrated, women’s bodies were recognised as workers but viewed as less reliable than male bodies. The change in the way in which the body was understood therefore under­ mined the organic metaphor of the body applied to the state. Whilst Cavarero (2002, 160–68) describes the switch from an organic model to that of a machine in Hobbes, Rabinbach moves this description forward in time by detailing the transition from the image of the body as machine to that of a motor, with the invention of the steam and the internal combustion engines. Whereas machines needed an external power source, motors were powered by internal dynamic principles, converting fuel into heat and heat into mechanical work. This did not lead to a different view of the sovereign’s body but became linked with

36 Section 1

images of workers’ bodies and the concern to extract as much labour and work from the body as possible. Foucault famously describes a move away from the importance of the sovereign’s body as symbolic of power, to the operation of more mundane power of the productive body. His initial description of the sovereign’s power in the classical age in the West resonates with Cavarero’s sovereigns: Power in this instance was essentially a right of seizure of things, time, bodies and ultimately life itself; it culminated in the privilege to seize hold of life in order to suppress it. (Foucault 1978, 136) In contrast, he describes how, in the seventeenth and eighteenth centuries, power became focused upon the individual body and included the spatial distribution of individual bodies and attempts to increase their productivity through drill and surveillance – the “technology of labour” (Foucault 2003, 242). However, he sees the emergence, in the second half of the eighteenth century, of a different technology of power: “biopower,” which does not exclude the earlier “disciplinary power” but integrates it and, to “some extent” modifies it: The newer technology that is being established is addressed to a multiplicity of men, not to the extent that they are nothing more than individual bodies, but to the extent that they form, on the contrary, a global mass that is afflicted by overall processes characteristic of birth, death, production, illness and so on … what I would call a “biopolitics” of the human race. (Foucault 2003, 242–43) The change of focus was from the sovereign body to the body of workers but it was still paradigmatically male. In contrast, regulation relating to birth and the family was aimed at women. When Cavarero places her heroines in completely alien realms – the cave, the sea, as well as Penelope’s weaving room – as female alternatives to the polis, she demands the impossible as a polemical move. Like Penelope she carves out a female space. However, this device does leave the changing position of the domestic sphere without analysis in her work. Whilst Cavarero’s Penelope may not inform the history of marriage, she represents the power of Cavarero’s “non/differently political” women. Like the maidservant of Thrace she is envisaged laughing at the conceits of patriarchal claims. These claims include not only those of philosophers, who would deny worldly reality in favour of eternal truths, but also the spin of kings with supposedly immortal bodies and of common lawyers with their frozen, unchanging law that has existed since the beginning of the world time immemorial. Elizabeth may have claimed to have the “heart and stomach of a king” but at least she had the sense to offer her troops payment.

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Bibliography Arendt, Hannah. 1958. The Human Condition. Charles R. Walgreen Foundation Lec­ tures. Chicago: University of Chicago Press. Arendt, Hannah. 1968. Men in Dark Times. New York: Harcourt Brace. Aylmer, John. 1559. An Harborowe for Faithful and Trewe Subjects. London: J. Daye. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Blackstone, William. 1765. Commentaries on the Laws of England: In Four Books. Oxford: Clarendon Press. Brown, Wendy. 1995. States of Injury: Power and Freedom in Late Modernity. Princeton NJ: Princeton University Press. Cavarero, Adriana. 1990. 1995. In Spite of Plato: A Feminist Rewriting of Ancient Phi­ losophy. Translated by Serena Anderlini-D’Onofrio and Áine O’Healy. Cambridge: Polity. Cavarero, Adriana. 1997. 2000. Relating Narratives: Storytelling and Selfhood. Trans­ lated by Paul A. Kottman. London: Routledge. Cavarero, Adriana. 2002. Stately Bodies: Literature, Philosophy, and the Question of Gender. Translated by Robert de Lucca and Deanna Shemek. The Body, in Theory. Ann Arbor: University of Michigan Press. Dennett, Daniel Clement, and N. Humphrey. 1989. “Speaking for Ourselves: An Assessment of Multiple Personality Disorder.” In Brainchildren, 31–58. London: Penguin. Foucault, Michel. 1978. The History of Sexuality: An Introduction. Translated by Robert Hurley. New York: Random House. Foucault, Michel. 2003. Society Must Be Defended. Edited by Arnold I. Davidson. Translated by David Macey. New York: Picador. Jordan, Constance. 1987. “Woman’s Rule in Sixteenth-Century British Political Thought.” Renaissance Quarterly 40 (3): 421–451. https://doi.org/10.2307/2862518. Kantorowicz, Ernst Hartwig. 1997. The King’s Two Bodies: A Study in Mediaeval Poli­ tical Theology. Princeton NJ: Princeton University Press. Kottman, Paul A. 2000. “Translator’s Introduction.” In Relating Narratives: Storytelling and Selfhood, by Adriana Cavarero. London: Routledge. Neale, J.E. 1990. Queen Elizabeth I. London: Penguin. Plato. 2008. Timaeus and Critias. Translated by Henry Desmond Pritchard Lee. London: Penguin. Plowden, Edmund. 1816. The Commentaries, or Reports of Edmund Plowden. London: Butterworth. Rabinbach, Anson. 1990. The Human Motor: Energy, Fatigue, and the Origins of Modernity. New York: Basic Books. Rawnsley, Andrew. 2001. Servants of the People: The Inside Story of New Labour. Penguin. Scott, Joan W. 1987. “‘L’Ouvrière! Mot Impie, Sordide …’ Women Workers in the Dis­ course of French Political Economy, 1840–1860.” In The Historical Meanings of Work, edited by Patrick Joyce, 119–142. Cambridge: Cambridge University Press. Smith, Adam. 2008. The Wealth of Nations. Adelaide SA: The University of Adelaide Library.

Chapter 3

Untimely Voices Rethinking the Political with Adriana Cavarero and Christine Battersby

It is useful to juxtapose the work of two contemporary feminist philosophers, Christine Battersby and Adriana Cavarero – working within the Continental tradition – because they both go well beyond feminist critique to produce dif­ ferent images of self-identity and conceptions of the political. Both reject tradi­ tional positions on selfhood but also (in different ways) stress the materiality of bodies and refuse the ways in which women have been considered in the work of post-structuralists, such as Judith Butler. I will not be able to do justice to the richness of either of these complex positions. My aim in this chapter is to draw out some of the politico-legal implications of their differing images of selfhood. In the final section I then apply both their (different) approaches to the concept of self to ask how their respective arguments can inform con­ temporary political questions regarding consensus and dissensus.1

Introduction: Voices, Dissent, and Creativity Both Cavarero and Battersby are critical of the way in which western philoso­ phy has taken men – male bodies and traditional lives – to be the norm against whom women are viewed as being an aberration. Battersby starts by asking: what would metaphysics look like if women were viewed as the norm? Simi­ larly, Cavarero ridicules the way in which terms such as “person,” “the self,” “Man” refer to an entity that appears to be a monster, both sexually neutral and universal, yet also positioned as a man. I employ the term “man” not “masculine” for a reason. It is useful, in this context, to bear in mind Batters­ by’s warning not to confuse “male/female” with “masculine/feminine” (Bat­ tersby 1989, 4). As discussed in Chapter 1, her point is illustrated by the example that the Romantics valorised “feminine men” (i.e., those with male bodies who displayed what were viewed to be “feminine traits,” which are culturally specific). They did not view any woman – irrespective of the 1

Reprinted by permission of the publisher (Taylor & Francis Ltd, http://www.ta ndfonline.com): Angelaki, “Untimely Voices: Rethinking the Political with Adriana Cavarero and Christine Battersby,” Janice Richardson, 2011.

DOI: 10.4324/9780429329678-4

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39

character traits attributed to her – as capable of genius. So, it is not femininity per se that has been devalued but those who have – what are classified as – female bodies who are, as a result, positioned in networks of power in a parti­ cular subordinate way. This first criticism of what I will call a “false universal” (i.e., that descrip­ tions of “the person” and “the self” are envisaged as men and yet are also sup­ posedly gender neutral) prompts an associated concern, shared by Battersby and Cavarero: the need to consider the materiality of the body in philosophy. This can be illustrated, for example, by the different ways in which the materiality of the musical voice plays a role in both Battersby’s (1998) The Phenomenal Woman and Cavarero’s (2005) For More Than One Voice. For both, the materiality of the body is central to the (very different) ways in which rela­ tionality is being rethought in their work. For Battersby, the voice is used to evoke an ontology in which the self is not defined by its cut from the other (or what it is not) but instead emerges through patterns of relationality. We can shut our eyes and cut ourselves off from others but cannot as easily shut our­ selves off from what we can hear. This move is best illustrated by considering Battersby’s arguments as she highlights the inadequacy of Kant’s description of the transcendental self and also radically reworks the meaning of Kant’s sub­ lime, which is outlined below. Cavarero observes that the uniqueness and materiality of my or your voice (which is never simply “a” voice) reveals “who” is speaking. This question of “who” is speaking is usually subordinated to the immaterial semantic meaning of words in the western philosophical tradition from Plato onwards. Here, Cavarero’s argument also illustrates her creative use of Hannah Arendt, as an inspiration from which to develop her own unique thought. For Arendt, it was the spoken words of great men acting in public that were important. However, Cavarero does not envisage such a clear-cut public/private divide. “Who we are” can be revealed in both public and in private. This is illustrated in Relating Narratives (Cavarero [1997] 2000) in which Cavarero describes a common desire that “we” share to have our stories told. By looking at the desires of two working-class women – one of whom is able to tell the other’s story – Cavarero shifts the scene from Arendt’s great men to a private domain. In stressing the importance of such storytelling for these women, who may have no other opportunity to be heard, Cavarero rejects Arendt’s public/private divide. How­ ever, she can be viewed as providing a response to an important Arendtian comment by echoing Arendt’s concern regarding [T]he insult added to the poor’s injured lives by the fact that their suffering remained in the dark. (Arendt 1968, 235) Although Battersby only occasionally engages with Arendt (see for example, Battersby 2007, 196–206), her work can be viewed as providing a response to

40 Section 1

this general concern regarding “lost” voices of the oppressed, as I will outline below. However, she disagrees with Cavarero’s emphasis upon the need for narration of our stories as central to “who we are,” arguing for the need for secrets. In Cavarero’s ([2007] 2008) book Horrorism, her central image of “my or your” unique embodied self is also understood as something that is vulnerable to chance; to becoming a casualty and, perhaps worse, to losing “my or your” uniqueness if forced to live in extreme conditions of degradation, such as the concentration camp. Here again an Arendtian theme is refracted through Cavarero’s own framework. Arendt expressed the worry that it is at the point that we really need human rights that we are denied “the right to have rights”; that we are viewed as barely human – a position that can be illustrated by that of the stateless who are denied the rights of citizens – that has influenced recent debates by Rancière and Agamben (Arendt 1973, 296). Similarly, the meaning of the political – which for Arendt was based upon public actions – is more radically rethought in Cavarero’s work when she seeks to replace the classical philosopher’s question of “what is Man?” by the narrator’s question of “who appears?” In order to explore the political implications of their positions, I will start by detailing one aspect of their projects: the way in which they each envisage selfhood and the relationship between self and other, starting with Battersby and then turning to Cavarero. In the final section, I will consider the implications of their work for thinking about consensus and dissensus.

Battersby’s Conception of Self Battersby (1995; 1998; 2003; 2007) has argued that it is Kant (and not Descartes) who provides the paradigm model of what it is to be a self in modernity (Richardson 2007). In summary, she argues that the Kantian self is established in opposition to its other. The human body is commonly envisaged as a container, with selfhood as something that is defended against the outside. I will explain this by first outlining Battersby’s reading of Kant’s transcendental self before turning to her reading of the sublime in Kant’s ([1790] 2000) Critique of the Power of Judgment. The analysis of the sublime will then form part of my application of both Cavarero and Battersby to current politico-legal theory in the final section. I will return to Battersby’s reading of the Kantian sublime in Chapter 4. In a detailed engagement with Kant’s concept of the transcendental self, Battersby argues that: [T]he supposedly “universal” structures of the Kantian space-time world also make the female body – and her transcendental “I” – a transitional structure somewhere between self and not-self … His model of spatiality is inadequate to deal with the relation between self and other within the

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(pregnant) female body; and this is serious since this model of spatiality is what upholds the persistence and stability of the transcendental “I” itself. (Battersby 1998, 66) To examine this claim it is necessary to consider the way in which Kant describes the transcendental self as a logical structure (not an object of direct awareness, as in the Cartesian self). It is that which must be presupposed as doing the work of ordering the manifold of sensory data in terms of space and time. Hence, Battersby argues, the Kantian transcendental self cannot be understood without being envisaged as cut from its “other”: what is not-self (the transcendental object). This external “not-self” is envisaged as passive, unchanging dead matter, which is needed to provide a permanent reference point by which the transcendental self is made stable. Without this not-self, there is no standard through which to secure identity (the “I”) over time: I must have objects of my thinking and apprehend them; otherwise I am unconscious of myself (cogito sum it cannot read ergo). (Kant 1993, 248; cited in Battersby 1998, 68) Further, the transcendental self is envisaged inside of the body in ways that prevent internal bodily spaces being relevant to identity (Battersby 1998, 67). Battersby is not claiming that the experience of pregnancy is in any way neces­ sary for women. She is pointing out that the inability of an ontological frame­ work to be able to conceptualise the fact that there are bodies that can give birth is a fatal weakness of the framework. The way in which Kant envisages the ego as existing within a bodily container (defined against its outside of unchanging matter) means that he has difficulty thinking about inner bodily spaces. This makes it impossible in his system to envisage a body that can give birth. In contrast, she proposes a feminist reworking of such a model of self­ hood, applicable to both men and women, in which the self and other emerge over time through the repeated ways in which relations and bodily habits occur. I want to explain this further by turning to Battersby’s reading of the Kantian sublime, which I will also employ in Chapter 4. In Kant’s Critique of the Power of Judgment he describes the aesthetic experience of the sublime in which men are challenged by the might of nature, such as storms and volcanoes (in the dynamic sublime) or the magnitude of nature, for example the size of an ocean (in the mathematical sublime). Kant says that men’s initial reaction is that of fear that the force of nature (in the case of the dynamic sublime) will overwhelm them. In Kant’s mathematical sublime, their discomfort arises from an awareness of their inability to imagine the magnitude of this aspect of nature. In both cases, there is a second stage to the experience of the sublime in which they are comforted with the knowledge that they are governed by the faculty of reason. In the case of the mathematical sublime, they are consoled about the failure of the imagination to envisage the

42 Section 1

magnitude of a natural object because they realise that this was attempted at the behest of reason. Reason demands that they think of the vast natural object, for example the ocean, as a totality. The conflict between their faculties of imagination and reason gives rise to a feeling of their supersensible vocation, i. e., the ability to reason, to think of ideas that cannot be perceived through their senses. Hence, this move can be linked to the ability to behave according to the dictates of reason by obeying the moral law. Similarly, in the case of the dynamic sublime, men are comforted by the knowledge that – despite the might of nature – they are able to use reason and to overcome such fear. To quote Kant, it calls forth “courage” (Kant [1790] 2000, sec. 263). “We” know that nature’s power does not have “the sort of dominion over ourselves and our authority to which we would have to bow if it came down to our highest principles and their affirmation or abandonment” (Kant [1790] 2000, sec. 261). I have used the example of the Kantian sublime because it illustrates an image of a self that is threatened by what is outside it (or other to it) and yet is able to maintain its boundaries against the outside (or resist being overwhelmed) by employing the use of reason. It is this reaffirmation of the self through the use of reason that results in the pleasure of the sublime experience that accompanies the pain. As Battersby puts it, the sublime experience involves: [A] mastery over nature; but also a respect for nature, considered as infinity that can never be grasped as a unity. Kant can conceive nothing more sublime than “the famous inscription on the Temple of Isis (Mother Nature): I am all that is and that was and that shall be, and no mortal hath lifted my veil.” (Battersby 1994, 135–36) Battersby details how, in a late essay, Kant ([1796] 1993) mocks the Romantics who would argue that they could have direct access to nature (Battersby 1994, 136). Kant argues that men cannot know if their ideas come from their own reason or from God. The Romantic notion of the male hero who lifts the veil of Isis risks the “emasculation” (Entmannung) of reason that comes via this “polluting contact with matter.” Battersby concludes that, for Kant, Nature and infinity (otherness) have to remain elusive; excess (the sublime) is the object against which the fictions of the (male) transcendental self and phenomenal reality are formed. (Battersby 1994, 136) One reaction to the way in which the aesthetic category of the sublime has been associated with a gendered view of self would be to say that women should be simply added in to this view of selfhood. Battersby takes a more productive approach, highlighting the reaction of women artists to the way in which this

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conception of selfhood was denied to them. By showing how women artists produced a “female sublime,” Battersby demonstrates how their work can be viewed as redrawing the artistic canon, thereby ensuring that their contribution to culture – and their expression of the contradictions inherent in the female subject position at that time and place – is not lost. I will explain this in more detail and then explore how Battersby theorises her own methodology. She shows how women artists produced poetry and art that illustrates how the self may be threatened by nature (as in the Kantian sublime) but there is also the evocation of a different point of tension: that of being cut off from the outside, from otherness/nature. This portrayal of selfhood envisaged a self that maintains its identity in a dynamic tension. It is dynamically stable by not being overwhelmed by what is outside of it (e.g., the might of nature) but also by not being separated from it. The self and otherness are carved out and emerge together. The possibility of being completely isolated is also portrayed as a risk – just as being overwhelmed by nature is a risk envisaged in the Kantian analysis of the sublime experience. This renders problematic the idea of simply reinforcing the boundary between self and what is outside of it as in the Kan­ tian sublime. There is a similarity between the ontological conception of self (as described by Battersby in her analysis of its aesthetic portrayal by female artists) and the psychological observations made by Carol Gilligan. In In a Different Voice, Gilligan (1982) found that – in her culture, that of late twentieth-century United States – men were more fearful of the perceived threat engendered by being part of relationships than by isolation, whereas women showed the opposite con­ cern. Hence, men would be more willing to risk isolation and women would be more willing to take the risk of being overburdened and exploited in relation­ ships. Having drawn this analogy, the ontological positions between Battersby and Gilligan are clearly different. Battersby envisages a self that only emerges through relationality whereas Gilligan’s model is of a self that is more akin to a traditional liberal image: it is stable after childhood (bounded against otherness) and simply opens out onto others through empathy. Battersby’s work in aesthetics itself challenges the male canon of the sublime by detailing the ways in which women artists reacted to their (historical and contingent) exclusion from the artistic canon. This exclusion occurred because the sublime was not viewed as suitable subject matter for women artists but also because, in the influential Kantian aesthetics of the time, the sublime experience was viewed as one that women should not undertake, despite their potential ability to do so. Kant’s claim is that women should not overcome their fear of the might of nature because they may be or become pregnant and need fear to safeguard the foetus (Kant [1798] 1974). I want to draw upon the importance of the argument that – by including their response within the history of art – the meaning of the canon is challenged and reworked. By re-evaluating their work, Battersby also opens up a feminist metaphysics that is blocked by a strand of postmodern feminism that focuses

44 Section 1

upon epistemology at the expense of metaphysics and that rejects any analysis of metaphysics on the (faulty) assumption that all metaphysics is based upon a fixed “underlying” essence. In contrast, Battersby – like the women artists she discusses – reworks a tradition, this time the philosophical tradition, forcing us to recognise that it is not monolithic. What it means to be a “self” is challenged by this move in a way that has important legal, political and ethical implications. Battersby’s methodology is explained in The Phenomenal Woman. Not only does she ask what philosophy would look like if the female subject position were taken as the norm, she also draws from Adorno to argue that cultural objects (such as the work of women artists) that are neglected at the time they were produced can be revalued at a later time (as a result of social changes, such as a change in the position of women) in a way that forces a reassessment of the canon itself. One way of describing this move would be to compare Adorno’s position with that of Kant. For Kant, anything falling outside of the categories would fail to be perceived at all but for Adorno (and Battersby), when conditions are right, these uncategorised objects are perceived, thereby shocking the subject into a different way of categorising the world. I will return to discuss this “methodology” further in Chapter 4. Battersby’s position challenges a common image of the body as “bounded” within both law and politics. Prior to Kant, both Hobbes and Locke also envisaged a self defined against his other, with a boundary against the outside. This image fits well with the Lockean image of the self as an owner of property and the way that it has been taken up.2 Following this reading of Locke, the liberal imagination envisages a boundary around yourself that is then extended by the property that you own. The image is familiar: freedom is defined negatively (as the right to be left alone). Freedom then entails the exclusion of the state (and others) from your property. This image is associated with a traditional public/ private divide in which women are situated in the private domestic sphere and the oppressive nature of this public/private split – along with the private sphere itself – is defined as “non-political.” As Cavarero (2002b) has pointed out, this move also involves the definition of women’s bodies as outside of the political in a way that troubles the definition of politics. Women’s political claims could then be marginalised and their subordination treated as natural at a time, in early modernity, when ideas around the natural subordination of men were challenged (Pateman 1979; 1988), discussed further in the second section of this book. It is important to be aware of this now at a time when the meaning of privacy is being contested by a number of factors including feminism and changes 2

This is despite the fact that Locke’s ([1689] 1993) Essay on Human Understanding, in which he discusses a Jekyll and Hyde type “Day Man and Night Man” in the same body, produces an image of a self which is compatible with otherness within the body. I discuss this further in Richardson (2010) and (2020). See also see Nedelsky (1991).

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to women’s position in the home. One struggle over the meaning of privacy is currently taking place in the European Court of Human Rights based upon their interpretation of Article 8 of the European Convention on Human Rights in which privacy rights are linked with the right to family life and correspon­ dence. This has produced a different trajectory to the development of the meaning of privacy than in the United States, where it was employed to give “decisional rights” over abortion, which was overruled by the Supreme Court in 2022.3 Europe guaranteed these rights by alternative legislation and so its law­ yers do not generally classify such questions as privacy issues. In part, case law also reflects the impact of technological advances. So, for example, when Mr Peck tried to kill himself in a street in the United Kingdom (and inevitably, given their predominance, the image of him carrying a knife was picked up on CCTV resulting in police intervention), the broadcasting of the CCTV footage on television, such that he was recognised, was viewed as a breach of his con­ vention rights protected by the European Court of Human Rights, despite the fact that it was in a public street.4 Hence, privacy is no longer defined by a straightforward division between private and public spaces that are simply cut off from each other by a boundary, representing an extension of the Lockean self. The court was interested in considering the need to protect Peck’s ability to form relationships in a way that is more resonant with Battersby’s approach. I should use some caution here because it is also compatible with an image of separate selves that then relate rather than an account of the creation of selves through patterns of relationality. It should also be noted that even if the courts adopt an approach to privacy which makes more sense in metaphysical terms it does not necessarily follow that their decisions will be pro- feminist or, indeed, just. Battersby’s view of selfhood emphasises materiality (and the way in which “who we are” is carved out over time through daily bodily habits) that recalls Althusser’s summary of Pascal, “Kneel down, move your lips in prayer, and you will believe”(Althusser [1970] 2008, 42). The emphasis upon what we actually do on a daily basis (and not how we define ourselves in language) has also been central to left readings of Spinoza such that your essence, “who you are,” is simply defined in terms of what you do to thrive and survive (Gatens 1996; Gatens and Lloyd 1999). Battersby’s work cannot be subsumed within this perspective but has some common threads with and enriches the materialist tradition. Having outlined Battersby’s conception of the self and the relationship between self and other, I now turn to Cavarero’s analysis.

3

4

Disturbingly for reproductive justice, Roe v. Wade, 410 US 113 [1973] which employed privacy in relation to “decisional rights” was overruled by the US Supreme Court in Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. 2022 WL 2276808. Peck v. UK [2003] EMLR 15.

46 Section 1

Cavarero’s Conception of Self and Storytelling In her early In Spite of Plato Cavarero ([1990] 1995) shares Battersby’s criticism of the philosophical view of matter as passive, dead and associated with women. In her analysis of Plato’s Timaeus, Cavarero traces how Plato instantiates a tradition in which the creative element of birth is viewed in terms of hylomorphism in which the male is the component that gives form to female matter. For Cavarero, this is also associated with a philosophical tradition in which death – and the need to think through the problems of mortality – is privileged in relation to the existence of birth as a suitable subject of philosophical analysis. Cavarero has continued to focus upon “who” one is. By emphasising the “who” she stresses that we are all unique selves, always embodied, not sexually neutral but not simply defined by qualities such as gender or race, which constitute “what” we are. For Arendt, “who one is” was revealed to the world (and created) by the words and deeds acted out in public. However, in Cavarero’s ([1997] 2000) reworking of Arendt in Relating Narratives, Cavarero describes what she calls the desire to have your story told, to see your life as a whole, in terms that cut across what is traditionally viewed as both public and private – domestic – spheres. As she points out, others are needed to tell your full story because nobody is able to recall his or her birth. As discussed in Chapter 1, this desire occurs while you are alive and should not be envisaged as the hero’s attempt to cheat death by being later immortalised in a story. The desire stems from the fact that we are unique existents and the telling of our life story by others thereby allows us to view our lives as having both unity and meaning. The story gives expression to our uniqueness, which demands to be expressed. Whereas Battersby talks about the self and other being carved out over time, resulting from different habits and ways of relating, for Cavarero time plays a slightly different role in the relationship between self and other. There is a “necessary other” or others who tell your story. They are already viewed as separate existents from birth and are not created by discourse – anyone thinking such a thing would be falling for the trick of philosophers. Cavarero’s position can be further examined in contrast with narrative psychotherapy. In narrative psychotherapy there is a technique that involves others telling your story which allows you to rewrite the narrative; to recognise that others may not share your interpretation of past events and to recognise repeated patterns in order to alter them. Part of storytelling here is to create a narrative that someone can live with. The politics of this is explored within Foucault’s work but I want to leave aside the issue of power and the feminist challenge to stereotyped interpretations of events. I want to highlight the fact that narratives and the meaning of events are reworked over time and can be challenged and understood differently years afterwards. Importantly, for Cavarero, this storytelling is not carried out with the same aims as narrative psychotherapy, which are to heal or to alter our approach to relationships, but

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speaks to a common desire for a story that expresses one’s life as a meaningful unity. Cavarero goes further in distinguishing between her view of selfhood and the work of consciousness raising, warning of the problem of identifying with others’ suffering in a manner that undermines the uniqueness of the self (Cavarero [1997] 2000, 91). Cavarero also claims that the desire to have one’s story told and to view one’s life as a meaningful unity is particularly strong in those who have been denied a chance of public recognition. Returning to the issue of privacy, Battersby’s analysis of Kierkegaard high­ lights the idea that there can be secrets that are central to “who you are” and that you do not want disturbed.5 This is evocative of Moira Gatens’ work on privacy in which she describes the experiences of a woman who was initially baffled by her grandmother’s fear around visitors (Gatens 2004). Her grand­ mother’s secret turned out to be that she was passing as white in a racist society. Issues of privacy may involve self-identity based upon secrecy by vic­ tims of subordination, for example “passing” as heterosexual or white, as in this case. This could also include the survivors of sexual abuse. Such secrecy may also involve lies told in order to maintain the secret, which may serve as a reminder of feelings of humiliation – of being treated with less respect than is due – or simply an unwillingness to keep reliving an event or to feel it is part of your story.6 There are contingent psychological – rather than philosophical – factors as to whether such secrets should remain so or could be reworked with others. Importantly, this is likely to involve a limited number of others. Hence, the legal argument that any knowledge of a secret by others means that an issue is in the public domain (and hence no longer protected as “private”) is proble­ matic. In a privacy case in Australia, for example, a news item which identified the rape survivor and her ex-husband rapist was held to have increased the harm through increasing a sense of lack of control over personal information,7 despite the fact she had confided in a few close relatives.8 In contrast to stories told to the wider public, stories told to others in a similar position may be therapeutic. However, as discussed, this is not Cavarero’s position. While she points out that the stories told in consciousness-raising groups created a situa­ tion in which storytelling became political in Arendt’s sense of the term, she is concerned that it allows space for the exhibition of our uniqueness (Cavarero [1997] 2000, 91). This raises the point that exhibiting your uniqueness to a

5

6 7 8

While there is insufficient room to explore this further, the political implications of secrecy are also discussed by Derrida who also indicates a debt to Kierkegaard and argues that “if a right to a secret is not maintained, we are in totalitarian space” (Derrida and Ferraris 2001, 59). In these instances, the shame (wrongly) arises as a result of social oppression. It may be that if one is passing for pragmatic reasons – for example, disguising oneself as a member of a subordinate group – then such shame is not experienced. Jane Doe v. Australian Broadcasting Corporation [2007]. Jane Doe v. Australian Broadcasting Corporation & Ors [2007] VCC 281.

48 Section 1

wider public requires greater courage of some than others because women (for example) are likely to be heard in terms of “what” rather than “who” they are. Another way of viewing storytelling and selfhood within consciousness-raising groups can be understood by applying Battersby’s analysis described above. Whereas Kant would view the individual standing up to the outside (the might of nature, for example) and drawing boundaries around himself, Battersby’s alternative move is to rethink this in terms of patterns of relationality. Just as we do not learn autonomy as children by being left alone but by helpful intervention, we are in a better position to resist attempts to view what we are as shameful by bringing to light the nuances of these experiences with others. Cavarero’s linkage between “who we are” and the telling of our stories appears to stress language, albeit a language that is spoken by a unique embodied voice. This can be contrasted with Battersby’s description of the self as emerging in relation to otherness. As explained above, Battersby makes relationality central but this is not because others tell our story. Cavarero’s description of our desire to have our stories told lays greater emphasis upon language than does Battersby. However, care must be taken to distinguish her move from the emphasis upon language of, for example, post-structuralist Judith Butler (1993; 1999). Cavarero deals with this question explicitly. Leaving aside the narrative self for a moment, more generally Cavarero elegantly reworks classical philosophy in order to highlight the weaknesses of the conceptual frameworks from a point of view that is usually obscured and to draw out another frame of reference. This approach to philosophy evokes different lives lived in their materiality, such as the daily habits of the maidservant of Thrace and the knowledge that arises from her perspective (Cavarero [1990] 1995). She has highlighted the position of women but has also shown how views of terrorism and war, which purport to be neutral, reflect the perspective of the warrior and not the victim (Cavarero [2007] 2008). In common with Battersby, Cavarero refuses the reaction of post-structuralism to the rejection of the Kantian view of self. (Battersby rejects the move that Butler makes in which the self is defined through what it excludes: its abject other. It is this philosophical image that she views as akin to the way in which Kant defines the self against its outside, as outlined above.9) While Cavarero argues that in order to narrate our life stories there is the need for a “necessary other,” she is not arguing that we define ourselves against this other. The necessary other (or others) who can tell our stories are also born embodied selves, who may be friends or lovers. These selves’ lives start with their birth and not by becoming positioned within discourse. It is one of the tricks of philosophers to forget birth, and in the history of philosophy it is “Platonic love that gave birth through discourse” (Cavarero [1997] 2000, 127).

9

For Battersby’s detailed analysis of Butler, whom she describes as a “Maoist of the symbolic order” see Battersby (1998, 118–24).

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For Cavarero, the role of my or your life story is not to dictate “who we are” in the way in which Foucauldian discourse is often viewed (or in Althusser’s terms we are not interpellated through a narrative). She says that: I know that I have a story and that I consist in this story … Someone’s life story always results from an existence, which, from the beginning, has exposed her in the world – revealing her uniqueness. (Cavarero [1997] 2000, 35–36) The distinction between Cavarero and Butler illustrates the extent to which Cavarero stresses the uniqueness of “who” we are and not “what” we are. While she argues that everyone is born embodied, she views the identities that make up identity politics – gender, race, sexuality – as part of “what” we are. In contrast, from Cavarero’s perspective, Butler focuses upon “what” we are. Hence, Butler’s interest in the way in which sexuality, gender, and race produce our (unstable) subject positions through language, drawing from Hegel and Lacan: Moreover, the “incompleteness” of each and every identity is a direct result of its differential emergence: no particular identity can emerge without presuming and enacting the exclusion of others, and this constitutive exclusion or antagonism is the shared and equal condition of all identityconstitution. (Butler, Laclau, and Žižek 2000, 31) Butler’s selves emerge not as a result of birth but by a subject position in lan­ guage that produces an identity based upon lack – an exclusion of what is refused that comes back to haunt such an identity. These different ontologies nevertheless lead to shared concerns with regard to universal claims that have historically excluded women and others. Cavarero’s emphasis upon individual uniqueness means that she resists the idea that unique selves could be subsumed under a universal term such as Man that will result in any loss of specificity. However, as I will examine below, she does view every­ one as desiring to have their stories told. Similarly, Butler is critical of “false universal” descriptions of what it is to be human but discusses the possibility of “contingent universals” (Butler, Laclau, and Žižek 2000). Hence, Butler argues that universal claims (such as the claim of gay rights under the rubric of human rights) should be judged as to their political effects and whether the “universal” is then more inclusive as a result, while recognising that it may always be con­ tested (Butler 1996). I will now turn to the political implications of the way in which Cavarero describes our desire to have our stories told, as a sense of ourselves – which we have in common (though obviously it should not be used as a definition of an abstract “Man” or “Woman” because it derives from our uniqueness). Cavarero describes the “narratable self” in terms of a “self-sensing”:

50 Section 1

Through the unreflecting knowledge of my “sense-of-self”, I know that I have a story and that I consist in this story – even when I do not pause to recount it to myself, “re-living” through the memory some episodes through a sort of interior monologue. (Cavarero [1997] 2000, 35) As her translator makes clear, Cavarero’s phrase in Italian confers the idea that she is discussing a bodily sense of oneself (Kottman [1997] 2000, xxviii fn. 39). She is describing a sense that we share that (while relying upon the fact that we are able to use language) does not rely upon our understanding any particular language nor upon the content of the language. This quality of being a “common sense” that does not depend upon particular concepts brings to mind Kant’s arguments (on the “sensus communis”) as to why we agree on aesthetic judgements (Kant [1790] 2000). In the context of Cavarero’s work – with Arendt as an inspiration – it therefore seems relevant to raise the question of Arendt’s unfinished writing on judgement; to ask whether Cavarero’s common sense of ourselves as narratable can form the basis of a shared ethics and politics.

Engagements with Kant’s Sensus Communis In this final section, I want to consider some of the implications of the work of Cavarero and Battersby in the context of some recent work by Alessandro Ferrara (2008) – while recognising that Cavarero and Battersby both have more radical political positions. I apply both Cavarero’s work and that of Battersby to consider Ferrara’s method of following Arendt in his reading of Kant’s sensus communis as a guide to political and legal judgement. This is then used to highlight the more radical moves that they make by demonstrating that both their (different) conceptions of self subvert such a project. Ferrara tries to address the concern that moral and political arguments require language for their exposition and therefore appear to be culturally relative. In other words, he aims to find a way of grounding universal moral and political beliefs, such that they are not undermined by what he describes as the “linguistic turn” in philosophy. In order to find a universal basis for public judgements that is non-linguistic he therefore turns to Kant’s Critique of the Power of Judgment and sensus communis. Kant explains why we can demand that others agree with our judgements as to what is beautiful, despite the fact that this judgement does not involve a conceptual definition. The beautiful object produces in us a harmony between our faculties of understanding and imagination. This involves a playful free-wheeling of these faculties, and Kant’s claim is that this is universal because of the way our faculties work. This can be illustrated by the example of looking at clouds. We produce different images of what the cloud could be (a duck, monster, etc.) but do not settle upon any one, i.e., there is no one image, presented by the imagination, that becomes

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subsumed under a particular concept of the understanding. The imagination and understanding play off each other in a manner that we all find pleasing. However, Ferrara does not want to draw upon the Kantian view that the ground for this universal assent (as to what is beautiful) derives from the common way in which we employ our faculties of imagination and under­ standing. Instead, he uses the idea that we have a common sense of what it is to have a life that flourishes, based upon the Kantian claim that we all view beautiful objects as life-affirming in an aesthetic judgement, which (as described above) does not rely upon bringing objects under a concept. Ferrara then wants to apply this to improve late Rawlsian arguments. So, for example, he argues that public arguments, legislation and common law judgments should be justi­ fied on the basis that they would appeal to our common sense of a life that flourishes. Looking first at Cavarero, her “common sense” also seems to supply a uni­ versal ground for judgement. It fits the framework of Kant’s sensus communis in that it could be described as communicable to all (as we all share this sense) without the need to appeal to concepts, i.e., it fulfils the criteria of Kant’s aes­ thetic judgement. She views us as sharing a need to have our stories told, thereby demonstrating our uniqueness and that our lives have both unity and meaning. However, she is more radical than Ferrara because her analysis – along with Battersby’s – disrupts the meaning of “the political,” to be discussed further below. So, while I think that she does provide what Ferrara needs, he would get more than he bargains for. For example, this move cannot be employed – as Ferrara wants to do – to perfect Rawls’ (2005) Political Liberal­ ism by founding a common basis for universal judgement because her stress upon uniqueness undermines such a universal claim. To summarise and explain further, to the extent that Cavarero appeals to a universal – the desire to have one’s story told, which is linked to the expression of one’s uniqueness and life as a meaningful unity, which is not reliant upon the use of any particular language in which to express the life story – she fulfils the criteria required by Ferrara. Having made this point, it should be noted that there are a number of problems with this move. First, it is questionable whether there is such a universal desire to have one’s story told. As discussed, both Battersby and Gatens illustrate this by pointing to the importance of secrecy in poignant cases of sexual abuse and “passing,” for example. However, Cavarero could argue that this urge for secrecy only makes sense in certain relationships and contexts and can itself become part of a meaningful life story that inte­ grates such desires within it. The second and more important objection is that such a move does not do justice to the original and radical way in which Cavarero emphasises the embodied uniqueness of “who one is” to rework the meaning of “the political,” starting with the Arendtian image of politics as the “plural space of appear­ ance” (Cavarero [1997] 2000, 88). She makes this clear by rejecting the view of self that is envisaged in rights claims – which she views as a way of “flattening

52 Section 1

out” our uniqueness into an equivalence (Kottman [1997] 2000, ix). In other words, she does not envisage unique individuals as part of any universal political or legal claim and takes care to distinguish her image of selfhood from that envisaged within liberal theory. Cavarero’s conception of selfhood produces a vision of ethics and politics that is more anarchist than liberal. In an interview, Cavarero has indicated that she has a vision in which: The democracy which I have in mind does not deal with political representation. It is a new way of thinking the public as concrete, and pragmatic, relationships between human beings and public space which must not be crystallised in a model of administration and government. This way of thinking is difficult, but I think it is possible. It is a way to look to the future. (Richardson and Cavarero 1999, 22) This different view of the political is explored in both In Spite of Plato and in Stately Bodies in which women’s association with the corporeal, which returns to haunt traditional political theory, can form the basis of an alternative politics. Similarly, in “Politicizing Theory,” in a discussion on globalisation, she states: Politics pertains to a locality that consists of the appearance of unique existents in their active self-exhibition, which is also a display of an incommensurable plurality. (Cavarero 2002a, 526) A further problem with employing Cavarero’s description of our common sense to produce the type of universal required by Ferrara can be illustrated by considering how a common sense of ourselves could be narrated and employed politically. For example, if Ferrara is faced with two groups that disagree – such as feminists and the Catholic Church over the issue of abortion – he aims to use the question of what decision would cause any body of humanity to flourish in order to try to produce a solution. However, given the differences on this point, it is difficult to see how such an ingenious thought could work. It is not improved by an appeal to a common need for narration of our lives. This sense of ourselves as narratable is linked to the uniqueness of the individuals alone and cannot be applied to groups. (In any event, liberals themselves do not require this analysis. Given that the Catholic Church does not recognise women’s rights of self-determination and bodily integrity then there is no reason to try to perfect Rawls’ argument. It is obvious that the Church would impose its view of the good upon women in a way that is illiberal.) On the contrary, Cavarero’s emphasis upon embodiment would make her more sympathetic to the critique of Ferrara that is consistent with Battersby’s critique of Kant (and of Arendt’s later work) to which I now turn.

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While Battersby provides a critique of both Kant and Arendt, her objections to universalism also catch Ferrara’s Kantian/Arendtian attempt to provide a universal basis for rights (Battersby 2007, 200–06). Battersby argues that when Arendt draws from Kant’s description of the beautiful, to envisage a sensus communis as the basis for universal judgement, she ignores the Kantian sublime in which universal aesthetic judgement breaks down. As discussed, Kant argues that pregnant women could (but should not) experience the thrill of the sublime because they may be or become pregnant and so this moves Battersby closer to Lyotard in that it undermines the idea of consensus. However, Battersby’s argument contains an important difference as a result of what I have called her “methodology,” outlined above. Unlike Lyotard, she refuses the idea that “the feminine” can be positioned as a fixed blind spot – as veiled Isis, forever unknowable but as the basis of a male experience. She argues that it is possible to re-evaluate the work of actual women artists to highlight their responses and to challenge the way in which those with female bodies were/are positioned. Hence otherness (in terms of both race and gender, for example) within the history of a culture can produce different experiences of the sublime, such as Gilroy’s (1993) slave sublime and the female sublime. This is in contrast to Lyotard’s postmodern framework which privileges paralogy and dis­ sonance, but which thinks incommensurable difference in terms that write out material, cultural and embodied differences. Sex, “race”, ethnicity and cultural difference (dis)appear as differends in Lyotard’s abstract analysis of agonistic “language games”. They seem to be registered but only in Lyo­ tard’s terms. (Battersby 2007, 42) Battersby provides a different analysis that is neither an appeal to a universal consensus – as in Ferrara’s reading of Rawls – nor is it Lyotard’s position in which “the feminine” stands in for difference that cannot be expressed, leading to a politics in which there is only an evocation to “respect difference.” Bat­ tersby’s position is more materialist in focusing upon the actual voices – and works – of women artists. It is also more optimistic. While liberals argue that a consensus is necessary in order to legitimise legal and political decisions, from Battersby’s “methodology” the voices that were not heard – or were overruled when a decision was made – are not lost. They are untimely but, when condi­ tions change, these neglected voices can be heard and alter our understanding of both past and present. It could be objected that Battersby’s argument (regarding the sublime experience) does not apply to Kant’s description of the beautiful and that it is this analysis of the beautiful that has been used to provide a model of politics for Arendt (see, for example, Arendt 1989; 2001). In order to unpack what is at stake in this argument it is necessary to examine Kant’s analysis in more detail. I want to show that Battersby’s response to the arguments of both Kant and

54 Section 1

Lyotard already outlined regarding the sublime can, with some modification, also be applied to Arendt’s political employment of sensus communis. As already outlined, Kant describes the experience of the beautiful as involving the harmony between the faculties of imagination and understanding. It is an experience that is universally available and Kant does not rule out any groups from being able to share in this experience. The harmony of the faculties provides the grounds for universal assent as to beauty because we all have the same faculties which work in the same way to produce this experience, even though it is not produced in accordance with rules. However, there is another stage to the process. We may wrongly attribute beauty to objects that we find pleasing for other reasons – such as sexual charm. For Kant, the perception of beauty must be disinterested, i.e., we should have no other reason for finding the object beautiful so that the pleasure experienced can be properly attributed to this harmony of the faculties of imagination and understanding. In order to avoid such a mistake, Kant suggests that we consider the judgement of the object from the position of others. This is not in order to take on their idiosyncrasies but to rid us of our own. Lyotard helpfully describes this process as “degreasing” or “purifying” our judgement (Lyotard 1992, 23). This is clearly not an empirical process but is a transcendental argument. We should consider others’ positions merely to purify our own and not to seek their actual opinion nor to take on their perspective. Arendt, as an original thinker, reworks this move by Kant by drawing upon this image of putting yourself in the position of others that then produces an “enlarged mentality” from which to judge (Arendt 1989, 75). As Ronald Beiner expresses it: Hannah Arendt, one might say, wants to do for Kant’s aesthetics what John Rawls did for Kant’s moral philosophy: to detranscendentalize it, and to draw from it a political philosophy. (Beiner 2001, 96) Lyotard’s response to arguments that appeal for legitimacy based upon this position (that they take into account the position of others to produce an “enlarged mentality”) is consistent with his argument in aesthetics and again produces a blind spot. He points out that certain discourses produce a double bind in which it is impossible to register a particular position (Lyotard 1989). An example of such a position was that of women artists whose work did not fit within the canon and whose contribution could not be registered in those terms without disrupting the canon. Similarly, in law, this double bind can be seen in the position of Aboriginal claims of sovereignty, which could not be argued within the ambit of the Australian High Court. To be able to lodge a claim in the court they must be positioned as Australian subjects but, as Australian subjects, they could not found a claim for sovereignty (Schaap 2009). Whereas Lyotard focuses upon the fact that certain voices cannot be heard at all within this double bind, Battersby’s methodology introduces the importance of

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timeliness. Women artists, for example, were initially unable to be heard but their contribution is not lost and can be re-evaluated in ways that then alter our understanding of the canon itself. Both Cavarero and Battersby produce conceptions of self and relations with others, which have radical political and legal implications. As I have outlined, these are not limited to the application of their work to particular areas of law, such as our images of privacy. More broadly, their work challenges the question of how we think about consensus in ways that cannot be subsumed into postmodern thought. Just as with women’s contribution to the artistic canon of the sublime, whose ori­ ginality initially failed to register, neither Cavarero nor Battersby fit easily within a particular canon – which categorises feminist work in terms such as modern and postmodern or in terms of particular waves, such as second- and third-wave fem­ inism. They both draw upon the Continental philosophical tradition but refuse to view women or “the feminine” as an example of a “blind spot” that can be sub­ sumed under difference. Hence, they draw out and rework the “underside” of wes­ tern culture (including both philosophy and art) such that the complex experience of having a body defined as female (and the changing meaning of this) is expressed. As such, their work can inform a more radical politics; one that can consider how philosophy would differ if the position of women were viewed as the norm, rather than an aberration. This work goes beyond their common critiques of “false uni­ versals” in which the position of men has been viewed as the better instantiation of the species to open up different ways of thinking about, for example, the body and matter as active (rather than dead or passive), along with the challenge of considering birth (rather than death) philosophically.

Bibliography Althusser, Louis. 1970. 2008. “Ideology and Ideological State Apparatuses.” In On Ideology. London: Verso. Arendt, Hannah. 1968. Men in Dark Times. New York: Harcourt Brace. Arendt, Hannah. 1973. The Origins of Totalitarianism. New ed. New York: Harcourt Brace. Arendt, Hannah. 1989. Lectures on Kant’s Political Philosophy. Edited by Ronald Beiner. Chicago: University of Chicago Press. Arendt, Hannah. 2001. “The Crisis in Culture: Its Social and Political Significance.” In Judgement, Imagination, and Politics: Themes from Kant and Arendt, edited by Ronald Beiner and Jennifer Nedelsky, 3–25. Lanham MD: Rowman & Littlefield. Battersby, Christine. 1989. Gender and Genius: Towards a Feminist Aesthetics. London: Women’s Press. Battersby, Christine. 1994. “Unblocking the Oedipal: Karoline von Günderode and the Female Sublime.” In Political Gender: Texts & Contexts, edited by Sally Ledger, Josephine McDonagh, and Jane Spencer, 129–143. London: Routledge. Battersby, Christine. 1995. “Stages on Kant’s Way: Aesthetics, Morality, and the Gendered Sublime.” In Feminism and Tradition in Aesthetics, edited by Carolyn Korsmeyer and Peggy Zeglin Brand, 88–114. University Park PA: Pennsylvania State University Press.

56 Section 1 Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Battersby, Christine. 2003. “Terror, Terrorism and the Sublime: Rethinking the Sublime after 1789 and 2001.” Postcolonial Studies: Culture, Politics, Economy 6 (1): 67–89. https://doi.org/10.1080/13688790308118. Battersby, Christine. 2007. The Sublime, Terror and Human Difference. London: Routledge. Beiner, Ronald. 2001. “Rereading Hannah Arendt’s Kant Lectures.” In Judgement, Imagination, and Politics: Themes from Kant and Arendt, edited by Ronald Beiner and Jennifer Nedelsky, 91–103. Lanham MD: Rowman & Littlefield. Butler, Judith. 1993. Bodies That Matter: On the Discursive Limits of ‘Sex.’” New York: Routledge. Butler, Judith. 1996. “Universality in Culture.” In For Love of Country?, edited by Joshua Cohen and Martha C. Nussbaum, 45–52. Boston: Beacon Press. Butler, Judith. 1999. Gender Trouble. New York: Routledge. Butler, Judith, Ernesto Laclau, and Slavoj Žižek. 2000. Contingency, Hegemony, Universality: Contemporary Dialogues on the Left. London: Verso. Cavarero, Adriana. 1990. 1995. In Spite of Plato: A Feminist Rewriting of Ancient Philosophy. Translated by Serena Anderlini-D’Onofrio and Áine O’Healy. Cambridge: Polity. Cavarero, Adriana. 1997. 2000. Relating Narratives: Storytelling and Selfhood. Translated by Paul A. Kottman. London: Routledge. Cavarero, Adriana. 2002a. “Politicizing Theory.” Political Theory 30 (4): 506–532. Cavarero, Adriana. 2002b. Stately Bodies: Literature, Philosophy, and the Question of Gender. Translated by Robert de Lucca and Deanna Shemek. The Body, in Theory. Ann Arbor: University of Michigan Press. Cavarero, Adriana. 2005. For More Than One Voice: Toward a Philosophy of Vocal Expression. Translated by Paul A. Kottman. Stanford CA: Stanford University Press. Cavarero, Adriana. 2007. 2008. Horrorism: Naming Contemporary Violence. Translated by William McCuaig. New York: Columbia University Press. Derrida, Jacques, and Maurizio Ferraris. 2001. A Taste for the Secret. Edited by David Webb and Giacomo Donis. Translated by Giacomo Donis. Malden MA: Polity. Ferrara, Alessandro. 2008. The Force of the Example: Explorations in the Paradigm of Judgment. New York: Columbia University Press. Gatens, Moira. 1996. Imaginary Bodies: Ethics, Power and Corporeality. London: Routledge. Gatens, Moira. 2004. “Privacy and the Body: The Privacy of the Affect.” In Privacies: Philosophical Evaluations, edited by Beate Rössler, 113–132. Stanford CA: Stanford University Press. Gatens, Moira, and Genevieve Lloyd. 1999. Collective Imaginings: Spinoza, Past and Present. New York: Routledge. Gilligan, Carol. 1982. In a Different Voice: Psychological Theory and Women’s Development. Cambridge MA: Harvard University Press. Gilroy, Paul. 1993. The Black Atlantic: Modernity and Double Consciousness. Cambridge MA: Harvard University Press. Kant, Immanuel. 1798. 1974. Anthropology from a Pragmatic Point of View. Translated by Mary J. Gregor. The Hague: Nijhoff. Kant, Immanuel. 1796. 1993a. “On a Newly Arisen Superior Tone in Philosophy.” In Raising the Tone of Philosophy: Late Essays by Immanuel Kant, Transformative

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Critique by Jacques Derrida, by Immanuel Kant and Jacques Derrida, edited and translated by Peter Fenves, New edition, 51–82. Baltimore MD: Johns Hopkins Uni­ versity Press. Kant, Immanuel. 1993b. Opus Postumum. Edited by Eckart Förster. Translated by Eckart Förster and Michael Rosen. Cambridge: Cambridge University Press. Kant, Immanuel. 1790. 2000. Critique of the Power of Judgment. Edited by Paul Guyer. Translated by Paul Guyer and Eric Matthews. Cambridge: Cambridge University Press. Kottman, Paul A. 1997. 2000. “Translator’s Introduction.” In Relating Narratives: Storytelling and Selfhood, by Adriana Cavarero, translated by Paul A. Kottman. London: Routledge. Locke, John. 1689. 1993. An Essay Concerning Human Understanding. Edited by John W. Yolton. New ed. Abridged and edited by John W. Yolton. London: Dent. Lyotard, Jean-François. 1989. Differend: Phrases in Dispute. 1st ed. Minneapolis: Uni­ versity of Minnesota Press. Lyotard, Jean-François. 1992. “Sensus Communis.” In Judging Lyotard, edited by Andrew E. Benjamin, translated by Marian Hobson and Geoff Bennington, 1–25. London: Taylor & Francis. Nedelsky, Jennifer. 1991. “Law, Boundaries and the Bounded Self.” In Law and the Order of Culture, edited by Robert Post, 162–189. Berkeley: University of California Press. Pateman, Carole. 1979. The Problem of Political Obligation: A Critique of Liberal Theory. Chichester: Wiley. Pateman, Carole. 1988. The Sexual Contract. Cambridge: Polity Press. Rawls, John. 2005. Political Liberalism. 2nd revised edition. New York: Columbia Uni­ versity Press. Richardson, Janice. 2007. “The Law and the Sublime: Rethinking the Self and Its Bound­ aries.” Law and Critique 18 (2): 229–252. https://doi.org/10.1007/s10978-007-9010-x. Richardson, Janice. 2010. “Feminism, Property in the Person and Concepts of Self.” British Journal of Politics and International Relations 12: 56–71. https://doi.org/10. 1111/j.1467-856X.2009.00393.x. Richardson, Janice. 2020. “Spinoza’s Conception of Personal and Political Change: A Feminist Perspective.” Law and Critique 31 (2): 145–162. https://doi.org/10.1007/ s10978-019-09255-6. Richardson, Janice, and Adriana Cavarero. 1999. “Unique, Sexed Selves, and Radical Democracy: An Interview with Adriana Cavarero.” Women’s Philosophy Review 21: 7–25. Schaap, Andrew. 2009. “The Absurd Proposition of Aboriginal Sovereignty.” In Law and Agonistic Politics, edited by Andrew Schaap, 209–224. Burlington VT: Ashgate.

Chapter 4

Relational Ontologies Adriana Cavarero and Christine Battersby Explored via Spinoza

In this chapter, I focus on one part of the philosophies of Adriana Cavarero and of Christine Battersby, separately. My approach will be to consider a different question that raises one central issue in the work of each philosopher and explore the answer using Spinoza’s Ethics. By doing so, common themes between these two feminist philosophers of relational ontology will emerge, along with their own distinctive voices. With regard to Cavarero, I address the following question: “how can we explain the joy that can arise when human beings act together in public in order to bring something new into the world?” I employ Spinoza’s understanding of joy in general and consider his different “types” of joy in the context of Cavarero’s (2021) view of joy in political action. With regard to Battersby’s oeuvre, I ask “what needed to be forgotten to allow Kant’s aesthetics of the sublime to arise?” and consider her answer in relation to Warren Montag’s Spinozist counter-aesthetics, in which Montag also investigates the politics of forgetting in relation to the Kantian sublime.

Introduction Cavarero ([2019] 2021, 33–34) describes the joy that she experienced when taking part in political protests with an Italian anti-right wing protest group referred to as the “Sardines.” She considers her joyful experience in the con­ text of Arendt’s (1972, 202) reference to the “joy in action,” “public happi­ ness” and “fun” that Arendt says accompanies political action. Cavarero illustrates this in detail but one quotation from an interview that Arendt gave in 1970, on the revolutionary movement of western students at the time, expresses her idea: [T]he first thing that strikes me is [this generation’s] determination to act, its joy in action, the assurance of being able to change things by one’s own effort … It turned out that acting is fun. This generation discovered what the eighteenth century had called “public happiness,” which means that when man takes part in public life he opens up for himself a dimension of DOI: 10.4324/9780429329678-5

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human experience that otherwise remains closed to him and that in some

way constitutes a part of complete “happiness.”

(Arendt 1972, 202; cited in Cavarero [2019] 2021, 33–34; emphasis added1)

I address the question: “how can we explain the joy that can arise when human beings act together in public in order to bring something new into the world?” Rather than following Arendt, I will answer this question by placing it in the broader context of Spinoza’s account of joy in general in his Ethics.2 Cavarero ([2019] 2021, 52) comments on the quotation by pointing out that joy and fun are variants of public happiness. I will focus on joy because it has a central role in Spinoza’s thought and because Cavarero refers to the Sardines as being “joyously gathering in public spaces” (Cavarero [2019] 2021, ix) and that there is, “joy in physically engendering freedom” (Cavarero [2019] 2021, xi). I will discuss the nomenclature further below. Turning to Battersby, I focus upon her concern with the forgetting of sexual difference by comparing this aspect of her philosophical position with that of Montag’s Spinozism to ask in each case: “what needed to be forgotten to allow Kant’s aesthetics of the sublime to arise?” As with Cavarero, I still highlight only a fraction of the rich work within Battersby’s oeuvre to explore this question, again, via Spinoza. My use of Spinoza differs between these two parts of the chapter. I consider Cavarero by situating my question within Spinoza’s wider framework that explains all types of joy (and sadness) rather than just joy in political action. In contrast, when turning to Battersby, I explore the similarities that arise between her re-reading of the Kantian sublime and that provided by Montag (2020). Both address the question of what needed to be forgotten to allow Kantian aesthetics of the sublime to arise. Both draw out the political implications of this forgetting, along with the ways in which aesthetics and politics are closely intertwined. This issue necessarily involves considering how subordination is perpetuated by asking what had to be forgotten for certain (erroneous and politically deeply problematic) ideas to flourish. I will start with Cavarero’s question. 1

2

There is an ambiguity as to whether women are included when Arendt employs a (now dated) use of “man” as a universal term. However, there were women in the protests and Arendt references “this generation” so she may be including women. None of my arguments rest on this assumption. Passages from Spinoza’s (1985) Ethics (E) will be referred to by means of the fol­ lowing standard abbreviations: initial numerals stand for part/book numbers, “a” for “axiom,” “c” for “corollary,” “p” for “proposition,” “s” for “scholium,” “lem” for lemma, “pref” for “preface,” and “app” for “appendix”; “d” stands for either “definition” (when it appears immediately to the right of the part of the book), or “demonstration” (in all other cases), “da” for “definition of the affects”. Hence, “E 1d3” is the third definition of part 1 and “E 1p16d” is the demonstration of propo­ sition 16 of part 1. For the Latin and Dutch text of Spinoza I rely on Spinoza, Opera [G], 4 vols, ed. Carl Gebhardt (Spinoza 1925). I use Edwin Curley’s translation unless stated otherwise, for example where I refer to the translations by Samuel Shirley (2002), George Eliot (2020) or Matthew Kisner (2018).

60 Section 1

Adriana Cavarero Setting the Scene In the preface to Surging Democracy: Notes on Hannah Arendt’s Political Thought, Cavarero ([2019] 2021) explains that the central themes of the book were prompted by her own experience of taking part in political demonstrations as part of the Sardines, a movement that started protesting in 2019 against the dominance of right-wing politics in Italy. Cavarero considers Hannah Arendt’s view of political action in the light of these experiences. I will outline her arguments about this “joy in action, the assurance of being able to change things by one’s own effort” (Arendt 1972, 202; cited in Cavarero [2019] 2021, 52). I will then situate these arguments within a more general Spinozist understanding of joy. This involves drawing out what I think is central to joy in ways that are critical of Arendt, in particular her public/private divide and emphasis upon the ancient Greek polis, but not Cavarero’s re-reading of her. In the background is Cavarero’s interest in Arendt as an inspiration – or a springboard – for Cavarero’s very different work. She was drawn to Arendt as a philosopher who refers to “natality” and who was writing at a time when natality was not viewed as a part of life that raises philosophical questions. Both Cavarero and Battersby have criticised the way that philosophers – from the ancient Greeks onwards – have been obsessed with thinking philosophically about death but have not registered the philosophical implications of birth, as discussed in Chapter 1. It is with their work that natality has become more accepted as a philosophical problem, at this time. While Arendt does not think about the scene of birth, she does refer to “natality” and, indeed, discusses the political implications of the fact that we are creatures who are born and, as a result, can start something new (Arendt 1958, 176–77). Before Surging Democracy, in her book For More than One Voice: Towards a Philosophy of Vocal Expression (Cavarero 2005), Cavarero had already replaced Arendt’s concern with rhetoric and the persuasiveness of speech, when considering political action, with her own focus on the body (or, better stated, my or your body). Cavarero highlighted the fact that speech arises as a result of the movements of someone’s unique physical body. Our bodies ensure that we each have a recognisable, unique voice. In each case, Cavarero emphasises that there is no general physical body or voice, a point that fits with Spinoza’s attack on universals (E 2p40dem).3 Instead, each person reveals uniqueness, in part 3

This fits with Spinoza’s attack on universals in E 2p40s1: “Those notions they call Universal, like Man, Horse, Dog etc., have arisen from similar causes, viz. because so many images (e.g. of men) are formed at one time in the human Body that they surpass the power of imagining – not entirely of course, but still to the point where the Mind can imagine neither slight differences of the singular (men) (such as the colour and size of each one etc.) nor their determinate number, and imagines distinctly only what they all agree in, insofar as they affect the body.” The problem of

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through that person’s own voice. With this emphasis, Cavarero replaces Arendt’s reference to the great speeches and rhetoric that distinguish the speaker by drawing attention to the bodily nature of speech, in the Arendtian scene of political action. For Arendt, the polis was the site of the great words and deeds of the patri­ archal slave owners of ancient Athens with whom the West is so enamoured. For Cavarero, in earlier works, her shift of attention acts as “method of theft” (Huzar and Woodford 2021, 17) that removes these men from the polis and replaces them with a different scene, one that – unlike Arendt – undercuts the public/private divide, as discussed in Chapter 1. Recall that, for example, Cavarero relates the story about the uniqueness of ordinary women, one of whom writes the other’s life story as an act of friendship. Cavarero contrasts these women with ancient Greek men, who aimed to be remembered for their great words and deeds, in an attempt to “cheat” death (Cavarero 2000, 58). In contrast, as part of the Sardines, Cavarero describes a public event containing ordinary people, crammed together to make a political statement. They were not trying to cheat death but instead objecting to racism and physically demonstrating their opposition to oppression. Cavarero’s discussion of Arendt throughout Surging Democracy extends her earlier work on the uniqueness of our voices to consider, not simply the tone of individual speech, but also the combined noise of the Sardines as they demonstrate together. The sound, that she describes, includes the voices of those singing, the rustling of different voices or the noise of their accumulated footsteps, which could elicit hope or – in this context less likely – fear from those outside the Sardines who were listening. While Cavarero is interested in the materiality of bodies and bodily change, for example in her critique of Parmenides (Cavarero 1995, 45–48), in Surging Democracy, she does not mention bodily change in the context of the voices that speak and sing during political action. I would therefore like to add this minor detail before turning to Spinoza: that voices, while unique, are subject to change. These changes often relate to transitions, with age or by a cis woman taking testosterone (as described by Paul Preciado below) or by taking up a posher or a regional accent to pass in terms of class in the UK. Voices may vary (either consciously or unconsciously) depending upon our reaction to the other parties in our conversation, for example by altering our accents to mimic others, just as we may unconsciously mimic gestures. Change in relation to our voices can sometimes be rejected, as in the case with a computerised digital voice used by the theoretical physicist Stephen Hawking, who “had the final say on his own vocal identity” (Hemsley 2018). His computerised voice became associated with his identity to such an extent men as a universal in which women are subsumed and forgotten but can be recalled is also important to Battersby’s analysis, as discussed later in this chapter and in Chapter 1. (For a summary see, for example, Battersby 2011).

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that, wanting a unique voice that did not change, he refused to update or alter it when this possibility was offered. In contrast, Paul Preciado describes his change of voice that resulted from his use of testosterone in positive terms, Testosterone provokes a variation in the thickness of the vocal cords, a muscle that, by changing its shape, changes the tone and register of the voice. The gender traveller feels the change in voice as a possession, an act of ventriloquism, which forces them to identify themselves with the unknown. This mutation is one of the most beautiful things I have experienced. To be trans is to desire a process of internal “creolization”: to accept that one can only arrive at oneself thanks to change, to mutation, to hybridization. The voice that testosterone propels into my throat is not that of a man, it is the voice of the crossing. (Preciado 2020, 34) While emphasising the bodily aspects of her experience as a Sardine, Cavarero’s engagement with Arendt prompts her to discuss the joy that can arise when human beings act together in public in order to bring something new into the world (Preface to Cavarero [2019] 2021). Given that Cavarero wants to consider what we can make of Arendtian action today, it should be noted that she understandably, as a feminist, rejects Arendt’s (controversial) adoption of a public/private divide and Arendt’s view that the French Revolution was nearly compromised by its concern with the “social issues” of the poor (Cavarero [2019] 2021, 74). Below, I will expand Cavarero’s discussion of the joy inherent in Arendtian action by employing a different framework, drawn from Spinoza’s Ethics. While Cavarero extends Arendt’s analysis to consider the sound of crowds taking part in political action, I will extend the idea of action in two ways: (1) by considering why such joy may occur when taking part in political action by placing it within a wider set of activities that give us joy, along with Spinoza’s explanation of the causes of different types of joy. I will consider how their inclusion (against Arendt’s analysis) serves to further undermine the public/private divide; and (2) by asking what happens when we move away from the “thought laboratory” (Cavarero [2019] 2021, 18) of democratic action, based on the acts and attitudes of male, patriarchal, slave owners in ancient Athens. This exploration is based upon the view that it would not have been possible to simply “add in” female citizens (who could give birth to citizens but could not speak or vote in the polis) and slaves (the majority of whom were women and some of whom were forced into brothels, as is the case today). These women and slaves could not join the polis without disrupting it with their different voices. My argument focuses on the quality of communication between those male Athenian citizens, squabbling to excel, none of whom ever needed to consider a different perspective in his life outside the polis, as discussed in Chapter 1. It follows that I

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question the West’s obsession with Athens as the ideal thought laboratory for political action. I separate different aspects of what we view to be the defining characteristics of Arendtian action and consider communications in techno-sci­ ence that Arendt would have firmly rejected but that she characterises as action because they bring something new into the world and are unpredictable and potentially irreversible processes (Arendt 1958, ch. 32). Before turning to Spinoza’s Ethics, I have a note about nomenclature. I am using the term “joy” following Edwin Curley’s translation of Spinoza’s Ethics, which I argue fits with Cavarero’s argument. For Spinoza, joy is “that passion by which the Mind passes to a greater perfection” (E 3p11s). He compares this with sadness, “that passion by which it passes to a lesser perfection” (E 3p11s). As I will explain in the next section, joy is central to Spinoza’s analysis of the passions. Cavarero ([2019] 2021, 33) refers to “pleasure, joy, and even enjoyment: these are the characteristics of public happiness that Arendt mentions.” For Spinoza, pleasure (titillatio) is defined in respect to joy as: “the affect of joy that which is related to the mind and body at once …” (E 3p11s). While Curley translates titillatio as pleasure, Eliot (2020, E 3p11s) and Shirley (2002, E 3p11s) translate it as “titillation”; and Kisner (2018) as “delight.” Again, as I will demonstrate, joy plays a more important role for Spinoza. Interestingly, Cavarero ([2019] 2021, 38) discusses felix and examines its translations, including felicity, to draw out the links between felicity and birth. In Ethics, Spinoza (E 2p49s and E 4app4), references felicitas, which Eliot (2020, E 4app4) translates as “felicity” (whereas Curley translates felicitas as happi­ ness). In both sections, Spinoza associates felicity with the joy that arises in association with the third kind of knowledge, to be explained below. Employ­ ing Eliot’s (2020) translation, Spinoza says: It is therefore of the first importance in life to perfect the intellect as far as possible, and in this one point consists the supreme felicity or bles­ sedness [felicitas seu beatitudo] of man. For blessedness is nothing else than the peace of mind [animi acquiescentia] which springs from the intuitive knowledge of God; and to perfect the intellect is nothing else than to understand God and the attributes and actions of God which follow from the necessity of his nature. Hence the ultimate aim of the man who is led by reason, i.e. his highest desire, by which he endea­ vours to govern all other desires, is that which leads to the adequate knowledge of himself and of all objects which can be embraced by his intelligence [intelligentiam]. (Spinoza, E 4app4) In short, I will refer to “joy” as the broader concept in Spinoza’s analysis, given that Cavarero and Arendt both refer to joy as well as public happiness and fun, as discussed.

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Cavarero and Arendt on Action with the Aid of Spinoza: Why Does Arendtian Action Evoke Joy? First, I need to outline briefly Spinoza’s understanding of different types of joy and their causes, and then I will apply his insights to the joy envisaged in collective action that Cavarero discusses. In Ethics, Spinoza provides guidance on how we can move through three states of knowledge: We start with mainly inadequate knowledge of our interactions with the world. This is the first type of knowledge. With only inadequate knowledge, we encounter things that both agree with us (e.g., food, which produces joy, associated with increasing our powers of acting) and disagree with us (e.g., snake bites, which produce sadness, linked with decreasing our powers of acting). At this stage of knowledge, coming across food depends upon causes of which we have no understanding and that we tend to attribute to luck, as a result of this ignorance. When we are able to attain adequate knowledge of both ourselves and the properties of the thing that we have encountered, we can explain its effect on us. At that point, we increase our powers of acting more fully than when we only had inadequate knowledge. With this second type of knowledge, we are able to be active rather than passive in our future encounters with the world. With this comes a more stable joy than the joy experienced when we had only inadequate knowledge and just happened to come across food, for example. This joy that arises with adequate knowledge is more stable because it depends upon our own activity. Spinoza refers to this in E 3p30s as “acquiescentia in se ipso” translated by Shirley and Eliot as “self-contentment” (Spinoza 2002; 2020).4 By increasing our powers of acting, we thereby increase both our (positive) freedom and – for Spinoza, the same thing – our “virtue.” (As he says in E 4def8: “By virtue and power I mean the same thing.”) There is a third type of knowledge that we can experience when we are able to use our adequate knowledge to attain an intuition as to our relation to God (or better nature), as referenced at the end of the last section. With this final insight, we are able to appreciate that we are part of the whole of nature.5 As Spinoza in the Preface to book 3 of Ethics famously remarks, “man in Nature [is not …] a kingdom within a kingdom.”6 We obey the same rules as all other 4

5 6

Although I normally follow Curley’s translation, Curley translates “acquiescentia in se ipso” as “self esteem”. Shirley’s reference to “self-contentment” better captures the stability of this second type of joy compared with that first type of joy, associated with an encounter that arises only through inadequate knowledge. Further, Curley’s reference to “self-esteem,” while correct, could be (wrongly) confused with pride, which is only ever associated with inadequate knowledge because it denotes confusion about ourselves. “It is impossible that a man should not be a part of Nature, and that he should be able to undergo no changes except those which can be understood through his own nature alone, and of which he is the adequate cause” (Spinoza, E 4p4). This is Shirley’s translation of imperium in imperio, which is better known than Curley’s version of “dominion within a dominion.”

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singular things. This insight, the achievement of which is of central importance to a life well lived for Spinoza, is also associated with a third type of joy. Spi­ noza refers to this joy as acquiescentia animi (true peace of mind), which is the most stable type of joy (see Carlisle 2017). On achieving this insight, we then want others to share it, along with its accompanying joy. Spinoza’s conceptual framework therefore provides a strong argument against anything that under­ mines the production and spread of adequate knowledge that we need to sur­ vive, thrive, and ultimately to have insight about ourselves as part of God (or better) nature. So we can therefore classify together a mixed bag of activities that undermine our attainment of adequate knowledge (of the second or third kind) that includes: the promotion of superstition of which Spinoza was critical in his letter Burgh (Spinoza 2002, 473, Letter 76, [IV/317a]), unfavourable copyright laws, and ways in which subordination is created such that sub­ ordinates are silenced or not understood or heard (for illustrations of which see, for example, Beard 2017; Medina 2012). I rely on this last category in further arguments below regarding political action in the polis. I will employ Spinoza’s broader understanding of joy to expand on Cavar­ ero’s reflections on the joy associated with (Arendtian) political action that she experienced while taking part in political demonstrations as part of the Sar­ dines. For Spinoza, it is important that we can more easily gain insights by acting/thinking together to discover something new than we can alone. In addition, Cavarero’s emphasis on the uniqueness of someone’s voice forces us to consider the materiality of our interactions with others as well as the content of speech. This also fits well with Spinoza’s position, given that for Spinoza, my mind and my body are both expressions of the same thing, that is me.7 As Arendt recognises to her horror in the Prologue to The Human Condi­ tion, we may become capable of living in an artificial environment and leaving the earth behind. She is also critical of the creation of in vitro fertilisation (IVF). In contrast, for Spinoza, we are not a “kingdom within a kingdom” (Spinoza, E 3Pref.). So, for Spinoza, space travel, IVF, and now the possibility of developing gestation outside the uterus, at least for longer lengths of time, are not any more unnatural (and do not make us either aberrant or monsters) than anything else each of us does, as singular things, to thrive and survive, as part of nature. We could only be said to go against our own nature (our endeavour to thrive and survive), if we are overwhelmed by something else, through a sad encounter, associated with inadequate knowledge. This does not entail a teleological argument of the type: “women must be subservient because of their nature,” of course. In fact, the opposite is the case, given that no sin­ gular thing thrives and survives by being subordinated. Spinoza’s critique of

7

More technically, my mind and my body are both expressions of the same mode (or modification) of God/nature. They are expressed through different attributes of God/ nature, i.e. Thought and Extension (respectively).

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teleology is relevant here and I will discuss teleology later in this chapter. I will now discuss Spinoza’s understanding of “singular things” (E 2d7). Images of Collective Action In order to describe how human beings relate to each other, Spinoza refers to “singular things” (E 2d7). For Spinoza, human beings – but also other singular things (e.g. stones, AI, walruses, cabbages, and kings) – can combine together as a “singular thing.” Human beings are already comprised of parts. My body is comprised of all its parts, such as liver, kidneys (when considering myself as a mode expressed under the attribute of extension). Similarly, under the attribute of thought, my mind is comprised of ideas. We can also join together further to create greater singular things, for example to join in the Sardines’ demonstration to change others. What makes these parts of parts that join together into a singular thing has a simple definition: By singular things I understand things that are finite and have a determinate existence. And if a number of individuals so concur in one action that together they are all the cause of one effect, I consider them all, to that extent, as one singular thing. (E 2d7) So, all that is envisaged in this definition is that, when any things act together so that they have an effect on something external, they constitute a “singular thing” at that point in time. It may be the case that it is possible to force subordinates to pull together on a rope, so there is the possibility of a singular thing that includes (or is comprised of) subordinates. Similarly, in the workplace, for example, it may be possible to force others to think to solve a problem. In certain circumstances, they may be distracted by the more salient problem of being threatened or by finding that a problem has simply been created unnecessarily by bureaucracy. Further, the opinions of those subject to subordination may not be elicited or given any credibility. If they are completely ignored then they do not satisfy the definition of being part of the “singular thing” – for example a group discussion – because their words have no effect on anything external to the group, as defined in E 2d7 above. An Example of Spinozist Joy through Collective Insight: Techno-Science Joy in Spinozist terms can be illustrated by scientific insights, as illustrated by Walter Isaacson’s The Code Breaker: Jennifer Doudna, Gene Editing and the Future of the Human Race (Isaacson 2021), which outlines Doudna’s Nobel prize winning discovery of CRISPR (clustered regularly inter-spaced short palindromic repeats), which opened up the human ability to edit our own

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genes. Aside from her analysis of political action, Arendt also details how techno-science has developed in ways that mean it can be characterised as action, for reasons mentioned above: It has the feature of “natality” in that it brings something new into the world. It is also unpredictable with effects that may be irreversible. The discovery of CRISPR makes an interesting comparison with her concept of political action because it is an example of collective action that, no doubt, gave these scientists joy, which, for Spinoza, always accom­ panies our greater understanding of ourselves and the world. Considering that both Arendt and Cavarero stress the importance of “natal­ ity” when thinking about action, I suggest that there can be no better candidate for action than Doudna’s team’s insight that created humans’ ability to edit human (and other) genes. Just to be clear, the potential of such scientific insight cannot be characterised as Arendtian work, even though Arendt would view it as something that “corresponds to the unnaturalness of human existence” (Arendt 1958, 27). As Arendt puts it in The Human Condition, work provides an “artificial world of things, distinctly different from our natural surround­ ings” (Arendt 1958, 28). However, with CRISPR, Doudna’s team went beyond creating everyday objects and architecture that provide us with (some degree of) permanence. In contrast, the discovery of CRISPR brings something new into the world through a team effort in two senses: 1 2

it increased our knowledge of the human genome; and as a result, the discovery can alter future natality itself, i.e. it can alter the germline of newborns in ways that could affect future births.

Doudna led a team of scientists, but her uniqueness was not displayed by her use of rhetoric – persuasion that appeals to the passions – but by her scientific insights that enabled her to understand efficient causes, along with her selection and encouragement of a team to think and act together to pool their insights (acting as a singular thing in Spinoza’s sense). This reference to science raises the concern that Cavarero highlights when politics gives way to administration (Cavarero 2002). Doudna (and many sci­ entists) accepted the need for regulation of gene editing, which raises obvious ethical and political issues. Here, I simply want to point out that to be part of a team that produces such insights – and understanding more generally – gives us joy. As discussed above, for Spinoza, there is joy in understanding the world and in acting so as to change it. To quote the reference I made to Arendt at the start, joy in [this] action also involves “the assurance of being able to change things by one’s own effort” (Arendt 1972, 202). What enabled this discovery was Doudna’s ability to draw on the insights that went on before her and to bring together a team that was able to co-operate and complement each other. This emphasis on communication is supported by Alex Pentland (2014), whose team monitored interactions in workplaces by employing new

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technology.8 Their findings lead to his conclusion that the single most important factor of team success is their ability to communicate, specifically to prevent a minority from dominating the conversation. Pentland explains, What is the basis of the collective intelligence we uncovered? Unexpectedly, we found that the factors most people usually think of as driving group performance—i.e., cohesion, motivation, and satisfaction—were not statistically significant. The largest factor in predicting group intelligence was the equality of conversational turn taking. (Pentland 2014, ch. 5) This included the ability to listen to every group member and to seek information from outside the group and report back – in Spinozist terms, to form singular things. Pentland even produced an app that indicates if anyone is dominating discussions, to try to ensure all voices were heard, in order to improve performance. In other words, Pentland emphasised the flow of ideas, in contrast to the “great words and deeds” that demonstrate individual virtuosity. If, as discussed in Chapter 1, we can follow Cavarero in a theft, taking away our image of men in ancient Athens as the basis of our thought laboratory, then we can replace them by drawing on other cultures. A useful example is of the Native Americans as discussed by Graeber and Wengrow in The Dawn of Everything (Graeber and Wengrow 2021). In their chapter “Wicked liberty: The indigenous critique of the Myth of Progress,” Graeber and Wengrow outline the contemporaneous notes of Jesuits about Native Americans whom they were trying to convert. They recorded that the Native Americans stressed the importance of collective debate and decision-making, not excluding anyone on the basis of gender. In the following quotation, Graeber draws from a French visitor, Sagard, to the Native Americans, the Wendat. Sagard wrote of his experiences in 1632: Sagard was surprised and impressed by his hosts’ eloquence and powers of reasoned argument, skills honed by near-daily public discussions of communal affairs; his hosts, in contrast, when they did get to see a group of Frenchmen gathered together, often remarked on the way they seemed to be constantly scrambling over each other and cutting each other off in conversation, employing weak arguments, and overall (or so the subtext seemed to be) not showing themselves to be particularly bright. People who tried to grab the stage, denying others the means to present their arguments, were acting in much the same way as those who grabbed the material means of subsistence and refused to share it; it is hard to avoid the 8

Pentland’s “behaviourism” has been subject to criticism by Zuboff (2019, ch. 5) but she does not criticise this, or other, specific findings. Her critique is based on ethical and political grounds in relation to surveillance.

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impression that the Americans saw the French as existing in a kind of Hobbesian state of “war of all against all.” (Graeber and Wengrow 2021, 39) To the alarm of the Jesuits who recorded their interactions with them, the native Americans did not exercise power over each other. Men did not employ violence against women or children. This meant that nobody could order others to do something, with the result that decision-making had to be by persuasion. Relevant to Cavarero’s interest in the joy in political action, Graeber and Wengrow explain that it was mainly the speakers of Iroquoian languages, such as the Wendat, and the five Haudenosaunee nations to their south, who emphasised reasoned debate, “even finding it a form of pleasurable entertain­ ment in its own right” (Graeber and Wengrow 2021, 46). I can now situate Cavarero’s experience of joy in the context of Spinoza’s broader understanding of joy. For him, we get joy from understanding efficient causes as to why things affect us, which allows us to be active in our further interactions. It is through acting with others – in which communication is cen­ tral – that we increase our powers of acting. When rhetoric is characterised as the demonstration of virtuosity in speech, a competition amongst those who expect to be obeyed in their domestic lives (because they have the power of life and death over members of their households), such “debates” were only likely to be joyful for the proud “winner” of an argument. However, for Spinoza, such joy (that arises from pride, which is associated with inadequate knowledge of ourselves) is only a weak and inconsistent type of joy, as explained above. It is inconsistent because it depends upon a comparison with others (see Richardson 2020). When suffering from pride or humility, we are undermined in our ability to understand our interactions because we consistently misjudge ourselves, as one party to the interaction, as I will discuss further below. It is also often a symptom of inadequate knowledge that we attribute the results of the interaction to the other party (by blaming them) rather than recognising that the interaction also necessarily involves ourselves, for example, our bodies’ susceptibility to snake bites. This mistake often prompts us to make an addi­ tional error, associated with superstition: to view snakes as “evil” and that this “evil” is the cause of our problem. Once we appear to have an explanation for the outcome of one of our encounters, for example, we seem to have explained snakes bites on the grounds that they are “evil” then we stop looking for other explanations. At a result, we are undermined in our attempt to find actual causes by such superstition. For one of his many criticisms of superstition, see Spinoza (2002, 473, Letter 76, [IV/317a]) As discussed above, a more stable joy arises when we gain adequate knowl­ edge. This is a broader category of joy than that of Arendtian political action, of course. However, Spinoza’s insights about what gives us joy can be employed to consider the sort of political action that Arendt focuses upon. In particular, Spinoza’s analysis of joy cuts across the public/private divide in common with

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Cavarero’s feminist concerns. In addition, it provides a critique of the type of joy that can arise when envisaging Arendt’s paradigmatic scene of action: the ancient Greek polis compared to the standard of debate that arises in more egalitarian societies, within the Wendat, for example. Christine Battersby and Forgetting via Montag’s Spinoza I will now examine one element of Battersby’s work via Montag’s reading of Spinoza by asking the question: “what needed to be forgotten to allow Kant’s aesthetics of the sublime to arise?” As I will explain, Montag (2020) demonstrates how Spinoza’s arguments needed to be forgotten, erased from philosophical thought, in order to allow Kant’s aesthetics to emerge. In contrast, Battersby highlights the forgetting of the existence of fleshy, embodied women that needed to be forgotten to enable Kant’s aesthetics to be thinkable. Women artists engaged with Kant’s sublime to illustrate the tensions of such a forgotten body and associated subject position. As such, Battersby does not simply reject Kant’s theoretical framework by illustrating how it is impossible to conceptualise active bodies that can become two (as in pregnancy) within Kant’s theoretical system. She goes further to radically rework it, creating a better theoretical system in which women’s bodies can be conceptualised; and in which the sublime does not depend upon a clear split between the self and nature (see Battersby 1998, 101–28), as discussed in Chapter 3. Given the political implications of both Battersby’s and Montag’s work, the “forgetting” that both analyse is not innocent and, importantly for progressive politics, neither is it irreversible. What is forgotten is, in both cases, conceptually rich. Woven together, I think that Montag’s and Battersby’s different frameworks complement and inform each other. This is in part because there is some (but not, by any means, total) overlap between Spinoza’s arguments, as employed by Montag, and Battersby’s feminist philosophy (see Battersby 1998, 22–23, 37, 51, 76, 140, 198 for her brief approving comments on Spinoza). In both cases the “forgetting” appears as a repression that undermines our understanding. Both Battersby and Montag focus on certain reactionary ideas that could only have survived and been perpetuated – through different artistic and philosophical expressions – if certain thought is forgotten. As both Battersby and Montag argue, this analysis renders the remembering of such understanding as a political act itself, and as such, acts of recall, along with portrayals and analyses of what has been erased, have the potential to disrupt both canons in art and in philosophy (see Battersby 2011). Montag on Spinoza’s Counter-Aesthetics Montag argues that the emergence of eighteenth-century aesthetics depended upon the exclusion (or necessary forgetting) of Spinoza’s Ethics. In particular,

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Spinoza’s philosophy would have blocked Kant’s development of the sublime in art, as Montag summarises in the following passage: [I]f Spinoza is more pertinent to the development of aesthetics in the century and a half following his death than has been assumed, the non-recognition or misrecognition of his pertinence must be understood as an effect of what makes him pertinent. The fact that aesthetics as a field initially took the form of a reassertion of the concepts of teleology, providence, entelechy and per­ fection, means that it took shape not only after, but against, Spinoza, whose powerful critique of teleology and all that follows from it made him one of the most widely condemned thinkers in early modern philosophy. (Montag 2020, 412, emphasis added) Focusing on the highlighted section that references the conceptions of teleology, providence, entelechy, and perfection, I will explain Montag’s points in turn and, where relevant, compare them with Battersby’s analysis at each stage. I will start with teleology. (A) TELEOLOGY

Spinoza summarises his view of teleology in E 1App, All the prejudices which I intend to criticize here depend on this one prejudice, the common or universal assumption that all things in Nature are like them­ selves in acting with an end in view. Indeed, they hold it as certain that God himself directs everything to a fixed end; for they say that God has made everything for man’s sake and has made man so that he should worship God. (Spinoza, E 1App, quoted Montag 2020, 4149) In the teleological model that Spinoza attacks, everything is judged in contrast with the final ends to which they are intended by a transcendent God. An example of teleological judgement, not employed by Spinoza, is the misogynist idea that women are “made for” sex and reproduction in ways that treat them as objects, undermining their agency, or in Spinoza’s terms, their “powers of acting.” (I discuss the problem of this teleology in chapter 10.) Instead of being concerned with final causes, Spinoza highlights the importance for human beings of increasing their powers of acting by understanding efficient causes. (B) PROVIDENCE

The other concepts that Spinoza blocks follow from a mistaken acceptance of teleology. This includes the next error on Montag’s list: “providence.” The idea 9

Montag is using Shirley’s (2002) translation of Spinoza’s Ethics.

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of nature as orderly and in harmony because it is made by God’s providence is evoked by Kant’s description of the beautiful. The idea of providence is undermined by both Spinoza’s attack on final causes, and on his understanding of a transcendent God as an inadequate idea of our imaginations. Given that prophets of transcendent Gods rarely come down from mountain tops proclaiming the need for an end to gender-based violence and advocating equality of access to resources, it goes without saying that the attack on a transcendent God is also a feminist issue. Similarly, the idea that we are part of nature undermines the view that any persons are unnatural or monstrous. While focused on the sublime, it is worth briefly discussing the beautiful, which Kant also describes within his aesthetic framework. Battersby in common with Montag has critiqued the Kantian beautiful. Whereas Montag makes the point that Spinoza undermines the idea of God’s providence which Kant evokes, Battersby illustrates how Kant’s description of the beautiful is gendered to women’s detriment. Both critiques are useful and do not contradict each other. Battersby traces the way that Kant’s views about the beautiful remain gendered between his early pre-critical Observations on the Feeling of the Beautiful and Sublime (Kant [1764] 2011) in which he follows Edmund Burke’s A Philosophical Enquiry into the Origin of our Ideas of the Sublime and the Beautiful (Burke [1757] 2008) and Kant’s later Critique of Judgement. For Kant, in his pre-critical work, women can be beautiful (characterised as small and not threatening to the imagined male viewer) but not sublime (that which threatens and evokes respect). As Battersby (1998) demonstrates, in the Critique of Judgement (Kant [1790] 1987), Kant continues this gendered approach but with a shift to focus on the reaction of the viewer to an art object. So, he argues that women viewers can enjoy beautiful objects but should not be encouraged to appreciate sublime art because such appreciation necessarily entails standing up to a threat, to be discussed below. (C) ENTELECHY

Returning to Montag’s quotation above, his reference to Aristotle’s entelechy evokes a concern that is also found in Battersby’s work, when she asks what philosophy would look like if women’s bodies were not viewed as aberrations from the norm. It is the idea that matter is to be viewed as mere potential that needs to be actualised by being given form. Historically, this has been gendered and opposed to the possibility of thinking of matter as active. This view of matter has been opposed to the possibility of thinking of women (who were associated with matter) as having an active role within reproduction. In contrast, for Spinoza, both extension and thought are equal attributes such that “I” am expressed fully as my mind and also expressed fully as my body. This metaphysics therefore holds my body and my mind as equal expressions of the same thing (me) thereby challenging the ways in which matter has been downgraded and associated with women (see for example, Sarah Donovan’s

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demonstration in Donovan 2009). Battersby (1998) has made a few comments that are supportive of Spinoza, to be discussed below. In this context, Battersby (1998, 76) sides with Spinoza when noting that Kant, when dismissing the pos­ sibility of “self-morphing” matter, condemns this possibility as associated with Spinoza. For Spinoza, my body is exactly as active (or passive, in any given situation) as my mind because it is an expression of the same thing (me), as discussed above and in the following section on perfection. (D) PERFECTION

Spinoza states, “By reality and perfection I understand the same thing” (E 2d6). Spinoza views perfection as the attainment of greater reality. This attainment is another way of describing the greater power that a singular thing has, at any given point in time. Our power (and hence our “reality” and “perfection”) is not fixed. So, for example, a human mind achieves greater perfection when it increases its power to think (E 3p11s). This means that it is more perfect the more it acts and the less it is acted upon (E 5p40dem) as illustrated by our working out how to deal with the snake problem, as discussed earlier. Simi­ larly, Spinoza also points out that, when we have adequate knowledge, we no longer compare ourselves with others. So, humility and pride – which under­ mine our ability to understand our encounters with the world – are only asso­ ciated with inadequate knowledge (Richardson 2020). As Spinoza says, “Humility is a sadness born of the fact a man considers his own lack of power, or weakness” (E 3da26). In other words, suffering humility reduces our powers of acting (and hence, our perfection or reality). The same applies to anyone suffering from pride. This may produce joy initially but it is only the unstable sort of joy that is associated with inadequate knowledge. By misunderstanding ourselves, we are hamstrung in our ability to understand our encounters and, in turn, undermined in our attainment of adequate knowledge. When we attain adequate knowledge of ourselves, we no longer experience either humility or pride and we no longer compare ourselves with others. Any critique of perfection (and how we are to understand it) is important for fem­ inists, as Battersby makes clear in her analysis of the position of women, per­ ceived to be monstrous aberrations from the “norm.” Spinoza (E 2p40s1) does not attack the image of perfection from a feminist position, of course, but his attack on it and on universalism nevertheless provides a more sympathetic position for feminists. Battersby’s (different) critique of universalism is detailed in Chapter 1.

The Kantian Sublime Having briefly discussed the quotation from Montag regarding Spinoza’s attack on teleology, providence, entelechy, and perfection, along with its relevance to Battersby’s work, I will turn to the Kantian sublime. I will first consider

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Montag’s arguments and then Battersby’s conceptual framework. Montag describes Kant’s mathematical and dynamic sublime in the following terms: The sublime, like the beautiful, refers to what lies beyond the limits of human knowledge but which is manifested in the effects of a power that exceeds comprehension; that is, an infinite power suggested by a magnitude or disorder that reminds us of a force unbounded by law, not even natural law. (Montag 2020, 416) So, Kant’s infinity is unknowable, and the sublime experience only suggests “force unbounded by law.” At this point it is useful to consider Battersby’s reference to Kant’s quotation: Kant can conceive nothing more sublime than “the famous inscription on the Temple of Isis (Mother Nature): ‘I am all that is and that was and that shall be, and no mortal hath lifted my veil.’” (Battersby 1994a, 135–36)10 Of course, Spinoza does not have a theory of the sublime in art. As Montag argues, as outlined in the last section, Spinoza’s attack on teleology and arguments that follow from it, if accepted, would have blocked the production of the Kantian sublime. To explore Spinoza’s position further, I will contrast the Kantian sublime, drawing on this quotation of Isis with the nearest candidate to the sublime within Spinoza’s framework. This would be the infinity of infinite attributes, God (or, better) nature, which is all there is and is eternal (in the sense of being self-necessitating existence, see Melamed 2016). Importantly, for Spinoza, there is no singular thing that is not knowable. While God (or better, nature) is infinite, all singular things in nature could be understood if we had the time and resources. More broadly expressed, there is nothing in principle that is barred to our investigations, building on the work of others. Hence, the importance of remembering feminist and other arguments that are so often forgotten because they never seem to fit properly within the philosophical canon or within artistic practices from which they were barred or marginalised. It is this ability to disrupt the canon and popular understandings by political acts of remembering with which both Battersby and Montag are concerned. Montag also considers how Spinoza would view artistic endeavour. Given that Spinoza argues that we wrongly attribute our actions to free will because we know our desires but are unaware of the true causes of them, he rejects the idea that artists intentionally produce their art through an act of will. In E 3p2s, Spinoza argues that the common view that the mind makes the body move is 10 Kant ([1790] 1972, §49n, p. 160). For Battersby’s further analysis on this quotation see Battersby (1998, 93–96).

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incorrect. (Recall that I am fully expressed as my mind and fully expressed as my body. Both mind and body are the same thing just expressed in different ways so they could not cause each other to do anything.) In a point that is reminiscent of Battersby’s (1989) Gender and Genius, Montag also argues that artists are often positioned as mimicking the creation of a transcendent God but that, in turn, this image of God is derived from (male?) artists’ self-image, producing a “circle.” He comments, By making this circle visible, Spinoza opens the possibility of escaping it to understand works of art and literature, in their irreducible reality, on the basis of their causes. From this comes not the elimination of aesthetics understood as a philosophy of art and literature (in the broadest sense) but the theorization of the counter-aesthetics already existing in the practices of art and literature. (Montag 2020, 419) This move is central to what Montag characterises as Spinoza’s counter-aes­ thetics. Given that Battersby provides an analysis of some of the causes of the existence of Kant’s analysis of the sublime in the form it took in the eighteenth century, her analysis could be positioned within such a counter-aesthetics. However, she does more than this in that her analysis also involves under­ standing the causes of (and effects of) the marginalisation of women from phi­ losophy and art. An example of this is Kant’s view that women should be discouraged from producing and appreciating sublime art, as discussed in Chapter 3. Battersby’s understanding also includes how to characterise pro­ gressive social change, an enquiry which includes examining how women artists have created original art by reworking the sublime in ways that undermine Kantian aesthetics. In doing so, these artists produce art that explores the ten­ sions within their aberrant subject position. Re-working Kant’s Sublime It is useful to consider the artistic examples given by Battersby and by Montag. As discussed, Battersby engages with the work of many women artists who challenge the canon of the sublime (see, for example, Battersby 1998, 101–28; 2007). She has provided a number of subtle, detailed examples. For example, in her The Sublime, Terror and Human Difference (Battersby 2007, 232) she compares the depiction of the sublime by Caspar David Friedrich’s Wanderer above the Sea of Fog (in which a man stares out over a landscape from a posi­ tion on high, dominating it) with Dorothea Tanning’s Self Portrait from 1944. I will summarise this analysis briefly in ways that do not do justice to Battersby’s intricate detailing of how Tanning deals with the conflicts inherent in the sub­ ject position of women (as discussed in Chapter 1). In the picture, Tanning herself takes the place of the wanderer from Friedrich’s painting, similarly

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situated with her back to the viewer looking over at a bleak landscape. However, she does so from a lower position, not dominating or dominated but situated within her surroundings. Instead of a frock coat and cane she is wearing a bathing suit. Battersby names such work the “female sublime” (Battersby 1994a; 1994b). This analysis draws upon Battersby’s metaphysics, as I discussed in Chapter 3. Recall that the Kantian dynamic sublime involves, first, a threat from nature (such as the might of storms) that is then resolved by the use of reason. This is accompanied by the image of a self that stands up to the might of nature in ways that envisage a self that is defined by being cut off from nature and from others. This separation from nature is illustrated in Friedrich’s painting but not in that of Tanning. Tanning is not depicted as overwhelmed by nature nor as standing up to it, but as situated within it. For Battersby, such art challenges the Kantian image of human beings as dominating – and cut off from – nature. Instead, she reworks the way we can interpret the female sublime in art such that self and other emerge gradually through relationality. This view of the self/ other relation would be evoked by thinking of women as normal rather than as aberrations. This view of self and other also requires a rejection of the idea that we have a fixed underlying essence. Battersby’s position comes closer to Spinoza in viewing us as part of nature rather than a “kingdom within a kingdom” (Spinoza, E 3 Pref.). In addition, as Battersby discusses, Spinoza, in common with Battersby, rejects the idea that the essence of an individual is “a fixed and ‘static’ real that is located in the body and merely subject to historical and cultural variation” (Battersby 1998, 22). It is worth explaining this point in the context of Tanning’s re-working of the Kantian sublime. While not engaging directly with Spinoza in detail in The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity, Battersby (1998, 22–23, 37, 51, 76, 140, 198) makes a number of positive comments about his conceptual framework. She (rightly) notes that Spinoza is amongst the philosophers who reject the Aristotelian notion of an underlying essence in ways that provide “very different resources for thinking the specificity of the female subject position” (Battersby 1998, 37). It is this “re-thinking” that Tanning demonstrates in art. In Ethics, Spinoza says, The striving [conatus] by which each thing strives to persevere in its being is nothing but the actual essence of the thing. (E 3p7) Desire is man’s very essence. (E 3da1) For Spinoza, our “essence,” in common with every other singular thing, is our conatus, what we do to thrive and survive, i.e. to increase our powers of acting. In the case of all human beings, this is achieved by improving our

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understanding, as explained earlier. Again, in common with Battersby, our “essence” for Spinoza therefore changes over time. It is important that Bat­ tersby is concerned with re-thinking essentialism with regard to female bodies and not feminine stereotypes, which have been associated with the “male genius” (Battersby 1989), discussed in my Chapter 1. As Battersby makes clear, This [female] subject-position is, however, not immediately and biologi­ cally given, but a historically and socially emergent norm that changes over time. Furthermore this norm does not describe, but prescribes categorial “fit” based on the perception of bodies. The body is emphasized, but in ways that allow for differences between individual women or between groups of women. I would also want to insist that these sexually differ­ entiating “norms” can themselves change over time – and that such an account is reconcilable with essentialism. (Battersby 1998, 23) To consider one of many examples of Battersby’s engagement with the sublime, in “Natality, Materiality and Maternity: The Sublime and the Grotesque in Contemporary Sculpture” (Battersby 2017), she also points to the misogyny inherent in some of the receptions of Ron Mueck’s Pregnant Woman, a giant sculpture of a pregnant woman, which some critics have characterised as gro­ tesque – occasionally beautiful – but never sublime. She demonstrates how, in doing so, they, perhaps unknowingly, continue the Kantian tradition that blocks the association of female bodies with the sublime. It is ironic that images of individuated human embryos, which have been depicted in ways that com­ pletely exclude their mother’s body, have been described in terms of the sub­ lime, as Battersby (2017, 78) points out, while analysing the art work of Marc Quinn to show how he envisages the mother as providing only the materiality out of which life will emerge. I will demonstrate her position with yet another example in the context of the Kantian sublime.11 Stormer (2008) in “Looking in Wonder: Prenatal Sub­ limity and the Common Place ‘Life’” references Battersby’s (1989; 1995) critique of Kant and follows the above line of argument when critically analysing the photography in Lennart Nilsson’s (1977) book A Child Is Born and Alexander Tsiaras in From Conception to Birth (Tsiaras and Werth 2002). He summarises one of the images and its relation to the Kantian sublime in the following terms: [T]ext accompanying Nilsson’s images repeatedly makes reference to the blastocyst as a kind of astronaut landing on the uterus, announcing “the 11 Sophie Lewis also comments on the mother’s erasure, in images of the foetus, in the context of the question of whether pregnancy should be classified as work. She answers a resounding affirmative, at the start of Ch. 3 (Lewis 2021).

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embryo has landed” and describing the uterus as a moonscape, converting the maternal body into a planetary body … Whether in a spatial void or cosmic space, the unborn is contextualized against the infinities of the universe, in solitude. (Stormer 2008, 654, emphasis added) … The Kantian tropes of standing before infinity and power, awash in the loneliness of the universe, masculinize even a tiny blastocyst as it lands on a uterine planetscape. (Stormer 2008, 664) Stormer then complicates the way gender is perceived with regard to the foetus in the next paragraph but in ways that self-consciously illustrate Kant’s link between the beautiful and the female that Battersby provides. He says “The trope of a normal miracle, beautiful in its formal perfection, feminizes even an embryonic tadpole” (Stormer 2008, 664). Consistent with Battersby’s analysis, Stormer illustrates the resistance to viewing pregnancy and women’s bodies as sublime. Instead, the pictures of a foetus portrayed within the tradition of the sublime depend upon the complete removal of the mother to allow the scene to be perceived as one of self-creation.12 Like Battersby (1994a; 1994b), who opens the way to thinking of the female sublime, Montag (2020) provides examples of an alternative sublime to that of Kant, referring to Spinoza’s “counter-aesthetics.”13 By employing Spinoza’s interpretation of scripture in Spinoza’s Theological Political Treatise, as well as his arguments in Ethics, Montag analyses the Spanish poets Luis de Góngora and Baltasar Gracián, whose works were found in Spinoza’s library. Montag’s close reading illustrates how these poets challenged the clear interpretation of texts and promoted an openness towards interpretation and meaning. I will end my discussion of these re-workings of the Kantian sublime with a brief illustration of my own drawing from an analysis of a performance called Heteronomous Male choreographed and performed by Michael Turinsky at Integrart Symposium 2015 entitled “Dance and ‘Normality,’” in which dance was performed and discussed by dancers with disabilities (see Richardson 2018). Turinsky describes himself as a dancer, choreographer, and philosopher, having 12 In opposition to this resistance, in “Spinoza, Kant and the Sublime” (Richardson 2019), I highlight the position of mothers within a Spinozist framing. I draw together a possible example of Battersby’s (1994a; 1994b) female sublime that is suggested by the portrayal of a different infinite from that of Kant. For Spinoza, there is an infinity of efficient causes that create human beings. I therefore draw attention to the “infinity” that is suggested by the line of mothers (as partial efficient causes) tracing backwards and forwards in time from our perspective and not that of God or better nature, which Spinoza envisages as self-necessitating existence. 13 Montag’s work is part of a growing engagement with Spinoza and aesthetics, see for example, Gatens and Uhlmann (2020).

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studied philosophy at the University of Vienna between 1998 and 2005, and I have footnoted his own website for his analysis of his dance.14 He has a severe physical disability. At the start of the dance, his carer overturns him out of his wheelchair onto the floor. The dance is comprised of his struggles to get off the ground. The audience could hear his strained grunts and witness his difficulty in overcoming gravity. In the teeth of Kant, I initially fit Turinsky’s dance within a Kantian framework and then apply a (better) Spinozist analysis in comparison. This is not to claim that this is the “right reading” but to highlight the differences between these two readings. Turinsky’s dance can easily be seen as portraying nature as threatening. However, in this case rather than the storms or volcanos considered by Kant, Turinsky demonstrates the might of gravity, depending on the capacities of a particular human body. Unlike Turinsky’s portrayal of gravity, it is not usually experienced as grand or threatening. Yet the audience – many of whom could stand without difficulty – were capable of imagining their bodies threatened by an inability to stand as a result of an accident or old age. Following the two stages of the Kantian dynamic sublime, this discomfort (like that engendered by storms) can be envisaged as being overcome through the use of reason, by viewers recognising that they would not compromise their morality if their values were at stake. Turning to Spinoza, Turinsky’s dance serves as a reminder that Spinoza argues that a particular body should not be judged as “unnatural.” Spinoza uses the example of childhood to make a point about what is “natural and necessary”: [I]f most people were born grown up, and only one or two were born infants, then everyone would pity the infants; because they would regard infancy itself, not as a natural and necessary thing, but as a vice of nature, or a sin. (Spinoza, E 5p6d; italics in the original). Spinoza does not believe in “sin”: As for what they commonly say – that Nature sometimes fails or sins, and produces imperfect things – I number this among the fictions … (Spinoza, E 4pref) He is illustrating why this belief about infants is incorrect. An associated mis­ take is to think of a universal category and compare an individual with that universal, given that the universal is merely a confused image of a number of different individuals (as Spinoza argues in E 2p40s1). Battersby is also concerned with the need to think of women (and other subalterns) as particulars “hidden 14 For Turinsky’s description of the dance: https://www.michaelturinsky.org/en/hetero nomous-male.html (Michael Turinsky 2012; ImPulsTanz 2013)

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within the folds of universals,” as discussed in Chapter 1. Importantly, in common with Montag, she does not believe that this forgetting (or erasure) is irreversible and so can envisage both philosophy and art re-awakening such lost understanding and images. In contrast with Kant, a Spinozist reading would not position Turinsky as “a kingdom within a kingdom” (E 3Pref.) separate from and threatened by nature (and then standing up to it successfully by using reason). Employing Spinoza’s Ethics, provides a better understanding of the audience’s experience when watching Turinsky dance. They experience a sad affect, such as a concern for their own abilities to deal with gravity or the experience of pity when witnessing Turinsky’s struggles. For Spinoza, all sad affects are associated with inadequate knowledge. In common with the Kantian sublime, there is a potential second stage in this Spinozist analysis that is also associated with “reason.” Unlike Kant, Spinoza does not separate understanding and reason. For him, reason is not a faculty as such. It simply refers to our ability to ascertain causes. In the second stage of the sublime, if Spinoza’s conceptual framework is applied (to replace that of Kant) then the audience is understood to be able to move from inadequate knowledge (associated with passions, such as pity) to the attainment of adequate knowledge. This second stage, like that in the Kantian sublime, is associated with joy and with “reason,” albeit differently understood, as explained. Again, it is our ability to “reason” that allows the shift from discomfort to joy. In this case, the audience is envisaged as advancing from inadequate to adequate understanding. As discussed above, the joy associated with adequate knowledge is “acquiescentia in se ipso” (E 3p30s) as translated by Shirley and Eliot as “self-contentment” (Spinoza 2002; 2020). I will explain how this could occur. If the audience wrongly imagine themselves as being separate from nature and fantasise about having “suprasensible vocations,” as in Kant’s conceptual framework, they are undermined in their attempts to understand their encounters with Turinsky’s dance because they fail to understand themselves. This failure undermines their encounters with the dance. As Montag argues, a Spinozist counter-aesthetics opens up different interpretations rather than closing them down by employing “concepts of teleology, providence, entelechy and perfection,” discussed above. The audience’s understanding of “disability” is increased when they successfully explain what causes their initial discomfort when first seeing Turinsky dance. This involves understanding more about our culture. As Spinoza explains, there is no template or universal for human (or other) bodies. To think that this is the case is a common mistake that arises as a result of teleology and the idea of final causes at the expense of discovering efficient causes, discussed above. It is important to recognise that Turinsky’s “disabled body” – in keeping with all subaltern bodies – is part of nature and not an aberration. The dance prompts the audience to try to understand efficient causes of their reactions to persons with disabilities. They need to ask: what happened

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within a culture that made certain bodies – in this case bodies with disabilities – appear to be aberrations from the “norm” (see Gatens (1996) for an important exploration of this question). This also includes paying attention to the ways that such insights are also forgotten but, as Battersby and Montag both argue, and in their own work demonstrate, it is possible to remember them. Neither Battersby’s feminist relational ontology nor Montag’s Spinozist counter-aesthetics can be subsumed within the other. Nevertheless, there are points of overlap in their answers to the question of what needed to be for­ gotten in order for Kant’s aesthetics of the sublime to arise. Further, their work shares two more important features: they both view aesthetics as inter-twined with politics; and they have positive projects of remembering what has pre­ viously been forgotten. These come together in their shared awareness that such “forgetting” (or erasure) is never innocent but that it is reservable, as demonstrated in their work. In this chapter, I have selected only a part of the rich oeuvre of both Cavar­ ero and Battersby to answer two questions via Spinoza. These two philosophers of relational ontology both demonstrate that aesthetics cannot be separated from politics. They both disrupt conventional understandings of philosophy by thinking about what it would look like if women were to be viewed as the norm. As such, they both enrich the ways in which such feminist interventions can be remembered (against forces that would erase them) and demonstrate what is at stake in such remembering.

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Kant, Immanuel. 1764. 2011. Observations on the Feeling of the Beautiful and Sublime and Other Writings. Edited and translated by Patrick R. Frierson and Paul Guyer. Cambridge Texts in the History of Philosophy. Cambridge: Cambridge University Press. Lewis, Sophie. 2021. Full Surrogacy Now: Feminism against Family. London: Verso. Medina, José. 2012. The Epistemology of Resistance: Gender and Racial Oppression, Epistemic Injustice, and Resistant Imaginations. Oxford: Oxford University Press. Melamed, Yitzhak Y. 2016. “Eternity in Early Modern Philosophy.” In Eternity: A His­ tory, edited by Yitzhak Y. Melamed. Oxford Philosophical Concepts Series. New York: Oxford University Press. Montag, Warren. 2020. “Spinoza’s Counter-Aesthetics.” Intellectual History Review 30 (3): 411–427. https://doi.org/10.1080/17496977.2020.1732704. Nilsson, Lennart. 1977. A Child Is Born. New York: Dell. Pentland, Alex. 2014. Social Physics: How Good Ideas Spread – the Lessons from a New Science. Melbourne and London: Scribe. Preciado, Paul B. 2020. An Apartment on Uranus. Translated by Charlotte Mandell. New York: Semiotext(e)/Foreign Agents. Richardson, Janice. 2018. “Disability and Dance: The Disabled Sublime or Joyful Encounter?” In Dance, Disability and Law: InVisible Difference, edited by Sarah Whatley, Charlotte Waelde, and Shawn Harmon, 161–176. Bristol: Intellect. Richardson, Janice. 2019. “Spinoza, Kant and the Sublime.” Textual Practice 33 (5): 839– 857. https://doi.org/10.1080/0950236X.2019.1581688. Richardson, Janice. 2020. “Humility, Acquiescentia and Subordination: A Spinozist Response to Jean Hampton’s Feminist Kantianism.” Parrhesia: A Journal of Critical Philosophy 32. Spinoza, Benedictus de. 1925. Opera. Edited by Carl Gebhardt. 4 vols. Heidelberg: Carl Winter Universitätsverlag. Spinoza, Benedictus de. 1985. The Collected Works of Spinoza. Edited and translated by Edwin M. Curley. Vol. 1. 2 vols. Princeton NJ: Princeton University Press. Spinoza, Benedictus de. 2002. Spinoza: Complete Works. Edited by Michael L. Morgan. Translated by Samuel Shirley. Indianapolis: Hackett. Spinoza, Benedictus de. 2018. Spinoza: Ethics: Proved in Geometrical Order. Edited by Matthew J.Kisner. Translated by Michael Silverthorne and Matthew J. Kisner. New York: Cambridge University Press. Spinoza, Benedictus de. 2020. Spinoza’s Ethics. Edited by Clare Carlisle. Translated by George Eliot. Princeton NJ: Princeton University Press. Stormer, Nathan. 2008. “Looking in Wonder: Prenatal Sublimity and the Commonplace ‘Life.’” Signs: Journal of Women in Culture and Society 33 (3): 647–673. https://doi. org/10.1086/523816. Tsiaras, Alexander, and Barry Werth. 2002. From Conception to Birth: A Life Unfolds. New York: Doubleday. Turinsky, Michael. 2012. Projects. https://www.michaelturinsky.org/en/heteronomous-ma le.html. Zuboff, Shoshana. 2019. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. 1st edition. New York: PublicAffairs.

Section 2

Chapter 5

Introduction to Section 2 Feminist Perspectives on the Social Contract

In this introduction to the section on contemporary feminist perspectives on the social contract, I start with Carole Pateman and her paradigmatic analysis of the social contract theorists of the seventeenth and eighteenth century. She asks why it is that, from Locke onwards, their attacks on political theories, which were based upon an assumption that subordination was natural, did not extend to women. In comparison to those feminists influenced by Kant, she rejects the approach of asking “what would hypothetical people agree to?” in favour of asking real people within a participative democracy. I will then return to the way that these questions are employed in the work of continental philosopher Drucilla Cornell and analytic philosopher Jean Hampton, whose work is con­ sidered in detail in the next chapter. I will finish by considering Charles Mills’ racial contract in relation to Susan Moller Okin’s correction of Rawls; and Pateman, Monique Wittig, and Paul Preciado on the “heterosexual contract,” which is discussed further in Chapter 8.

Introduction The seventeenth and eighteenth century social contract theorists started with an argument based on stories of how people would behave in a state of nature, envisaged as a state of society before the creation of sovereigns and laws. Employing these thought experiments, they defeated claims that sovereigns had a divine right to rule and attacked the idea of natural subordination. However, as Carole Pateman demonstrates, with the notable exception of Thomas Hobbes, these social contract theorists stopped short of applying this pro­ gressive political intervention to women. So, they viewed political structures as human creations save for those involving women’s subordination, which they continued to view as arising naturally. I explore Carole Pateman’s important work in this section, in Chapter 8, and in my book The Classic Social Con­ tractarians (Richardson 2009) as well as a series of papers (Richardson 2007a; 2007b; 2015b; 2017). Pateman asks why it is that the progressive move by Locke, Rousseau, and Kant, of viewing men as naturally free and equal, did not extended to women. Kant did not provide a story about the social DOI: 10.4324/9780429329678-7

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contract but viewed it as an idea of reason. In Pateman’s criticisms of Kant’s treatment of women, there is some overlap with such analysis from Christine Battersby, discussed in the last section, with regard to the position of women as “passive citizens,” outside the social contract. Both analyses (see Battersby 1998, 64; Pateman 1988, 168) of Kant’s position include consideration of the contra­ dictions produced by Kant, including his analysis of personhood, which does not include women. As a corollary, he describes women as lacking civil and political reason, along with moral judgement (Kant [1797] 1996, 92). The obvious omission from this list of social contract philosophers who failed to apply their progressive analyses to women, is the early modern philo­ sopher Thomas Hobbes. Hobbes viewed women and men as naturally equal in his individualist story of the state of nature. In a pragmatic manner, he argues that there was not such a difference between men’s and women’s strength and intelligence that would enable men to dominate women in a state without laws (Hobbes [1651/1668] 1994, 28. XX [4]). I will consider Pateman’s arguments in detail in Chapter 8. In this introduction to the second section of the book, I will situate her work by comparing the other ways in which contemporary feminists have engaged with theories of the social contract.1 The other main approach of feminists to the social contract theorists of the seventeenth and eighteenth century is to argue that the idea of the social con­ tract allows feminists and other subalterns to pose the following sorts of ques­ tions: “would free and equal people agree to this law?” or “would a free and equal person agree to be part of this relationship?” This second question is associated with another: “Is this person being treated as if she were free and equal in this situation?” Before examining feminist analyses of these questions, I will contrast them with Carole Pateman’s critique of the social contract tradition.

Carole Pateman Pateman is interested in the freedom of real people rather than an ideal of Kantian autonomy that has historically been associated with privileged men, who are able to hide their dependency on others, as illustrated by the work of Fraser and Gordon (1994). It follows that she rejects a Kantian approach of employing tests to ascertain whether hypothetical free and equal persons could agree with laws (so as to lend them legitimacy). Neither is she interested in tests for fairness in marital relationships. Instead, she is concerned to move towards a society in which actual people are able to negotiate with others; to have a say in decisions that affect their everyday lives. This draws her closer to Cavarero’s position, discussed in the last section, simply in terms of considering political action. Again, like Cavarero, and unlike Arendt, Pateman is concerned with 1

For detailed analysis of earlier feminist critics of the social contract, see Karen Green (2014; 2020).

Introduction to Section 2 89

everyone having a voice in decisions that affect their lives. As such, she critiques the public/private divide as a central feminist issue, along with areas of dom­ ination in the home and in the paid workplace. Both continue to be political in that they often continue to inculcate obedience, rendering the idea of workers having a say in the workplace as unthinkable, for example. So, Pateman’s positive view of freedom requires a social and political struc­ ture that facilitates participative democracy. Rather than requiring an “all or nothing” revolutionary response, she suggests different ways in which we can move in the right direction. These changes are necessary to improve people’s abilities to participate in decision-making. Crucially, these changes include the need for people to recognise that such participation is a possibility and to learn the necessary confidence and skills in negotiation, in Arendtian action, as dis­ cussed in Chapter 4. Examples include citizens’ decision-making on particular issues, especially regarding money allocation; and the provision of a universal basic income. By adopting a policy of universal basic income, a state would facilitate the ability of employees (or gig workers) to escape violence and dom­ ination in the paid workplace; and women to more easily escape violence in the home, as a first step. In short, Pateman stresses that such training in sub­ ordination in these supposedly “private” areas of life is political, created by human beings. In other words, this training is not “natural,” the point that the social contract theorists from Locke onwards failed to recognise with regard to women. In Chapter 8 I will consider Pateman’s position in more detail, in parti­ cular the role of property in the person, i.e. the political fiction that it is possible to exchange human abilities (e.g. the ability to work) as if they were commodities. To introduce Pateman’s position briefly here, I think it is helpful to recognise how Pateman (2002) draws a distinction between three types of societies: 1

2 3

Societies in which property in the person can be exchanged for money without limitation. This would include a slave society. Within Pateman’s career, we have moved further in this direction with the rise of neo-liber­ alism (see Sandel 2012; Radin 1996). Societies in which property in the person can be exchanged for money but this is limited (our society). Societies in which the fiction of “property in the person” is not employed. This is Pateman’s proposed society.

For the duration in which Pateman has been writing, we have unfortunately been moving further towards societies in which more human activities can become commodified, with the rise of neo-liberalism. This has also arisen as a result of advances in techno-science and can produce difficult questions for feminists, as illustrated by the “industrialisation” of gestational surrogacy in the developing world.

90 Section 2

In 1988, Pateman did not consider what is now the usual gestational surro­ gacy and so envisaged the surrogate as providing gametes. She argues that such surrogacy contracts provide men with access to women’s reproductive capa­ cities in ways that derive from and perpetuate women’s subordination (Pateman 1988, 209–18). Since 1988 there has been a great deal of feminist work on this question, for example Elizabeth Anderson’s (1990) “Is Women’s Labor a Com­ modity?”. Anderson has also raised concerns about the alienation that surro­ gates may experience. However, other feminists have focused on the problem that desperately poor gestational surrogates from the developing world suffer exploitation and risks to health, which are made worse if such surrogacy is illegal. The illegality undermines their ability to negotiate and improve their position. There is therefore useful work in trying to hear from the surrogates concerned as to what would help them (Pande 2011; 2014) and suggestions of fair trade and the need for medical insurance. (See also Bailey 2011 regarding the need to view justice for surrogates in the context of reproductive justice.) Similarly, Amia Srinivasan, in The Right to Sex (Srinivasan 2022), argues that privileged feminists in the developed world are at risk of making life far worse for other, less privileged women. Replacing her reference to sex workers, I can misquote her conclusion to say: [T]hat once we take it as given that under current economic conditions many women will be compelled to [be surrogates] and that under current ideological conditions many will buy [their services], the most important question remaining is: what can we do to strengthen the hand of women in this bargain? (misquoting Srinivasan 2022, 118 to replace “sex work” with “surrogacy”) The difficult questions that arise from surrogacy run to the heart of women’s problem that work associated with reproduction is viewed so priceless and sentimentalised that it is unpaid and therefore becomes treated as worthless in a capitalist society. It is therefore useful to view it in the same context of other “women’s work” such as care work, both inside and outside the home. In her “Feminist Critiques of the Public/Private Dichotomy,” Pateman (1989) considers the paid workplace and the home together, along with the polis to analyse how the public/private divide has been central to feminist struggles and to trace (and attack) its historical antecedents in Locke’s ([1689] 1988) separation between the power of sovereigns and of husbands. While I agree with Pateman’s important critiques of the public/private divide and of the way that property in the person produces relationships of sub­ ordination in modernity, I would add a further point about the broader impact of commodification. Interpretations of what occurs in relationships when acts that were previously carried out without payment become commodified differ, depending upon circumstances and the diverse interpretations of the parties. This can be illustrated with a few examples of money being introduced into

Introduction to Section 2 91

relationships.2 In the classic study, “The Gift of Blood,” by Richard Titmuss (1971), Titmuss investigated the difference between blood donors in the UK, who gave blood without payment and viewed themselves as altruistic, com­ pared with those in the US where donors were paid and it therefore attracted the poor, including drug addicts, who gave blood motivated by money. Titmuss’ analysis of the impact of commodification, while negative, differed from other investigations of commodification of people who transgress more when they were fined, for example. Those running a day care centre in Israel were worried that parents tended to be late in picking up their children and therefore introduced a fine. The number of parents picking up their children late imme­ diately increased. By introducing money, the day care centre had unwittingly changed the relationship between themselves and the parents, who interpreted the fine as a fee for lateness (Gneezy and Rustichini 2000). They could then feel less guilty about their lateness than previously. Another example with yet another interpretation as to what happens when money is introduced into relationships is that of a Swiss village in 1993, whose members voted to store nuclear waste, having heard the government’s argu­ ments that this was the best place to store it. This vote changed when the state offered them compensation. What had previously been understood as patriotic (in the relationship between citizens and state) now risked being interpreted as greed and disloyalty. The members of the village reasoned that, if they accepted money, then future citizens in their village may interpret them as having “sold out” later generations. These later generations would still have the burden of storing nuclear waste but would not receive compensation. So, these citizens concern shifted from their relationship with the state to that of the relationship with their children and later citizens. I discuss a further example of the different ways in which we interpret “commodification” in Chapter 10, when citing Justice Kirby’s useful judgement in the Australian High Court’s decision in the wrongful birth case of Cattanach v Melchior (2003).3 As a result of negligent medical treatment in sterilisation operations or advice, the plaintiff had a child that she, at least initially, wanted to avoid through sterilisation. One way of viewing the damages for the child’s upkeep being awarded in compensation would be to view such compensation as commodifying the child – just as it would be possible to construe damages for personal injury as commodifying an injury. However, the Australian High Court (rightly) rejected this interpretation of the award of compensation. As I will discuss in Chapter 10, in contrast with the UK’s House of Lords,4 Justice Kirby helpfully pointed out that, as a result of the doctor’s negligence, the 2 3 4

For my discussion of commodification in the context of neo-liberal views regarding privacy see Richardson (2015a, ch. 5). Cattanach v Melchior (2003) 215 CLR 1, para 180 (Kirby J.) McFarlane v Tayside Health Authority HL (199) 3 WRL 1301 (2000); (2000) 2 AC 59.

92 Section 2

plaintiff had another mouth to feed. Damages were awarded to address this reality, rather than leaving the burden with the “victim” of negligence, i.e. the usual principles of negligence were to be applied. In personal injury cases, judges reasonably assume that plaintiffs would prefer not to have been injured rather than receive monetary compensation but that compensation is the best that can be offered.5 In all these examples, people change their interpretation of their interactions when money is introduced but not in the same way. These interpretations are nevertheless understandable to others and often concern some thought as to how our actions will be interpreted by others. These interactions also differ from Pateman’s analysis of the creation of relationships of subordination in modernity that involve the fictional exchange of “property in the person” as a commodity. To return to the position of gestational surrogates, while surro­ gates risk exploitation and psychological or physical injury, it also appears exploitative to tell desperately poor women that they should not be paid and that practices should go unregulated to, thereby exposing them to greater risks. As Pande (2011; 2014) illustrates, from her interviews with Indian surrogates, their own interpretations of surrogacy include the aim of creating better lives for their existing children with the payment, and the understanding that they are helping others who may desperately want children. Again, these are under­ standable interpretations within the position in which they find themselves.

Contractual Tests Pateman’s conception of freedom (which I discuss in Chapter 8) contrasts with the approach of both Cornell and Hampton, who use the idea of a social con­ tract to produce their tests. These tests focus on what could be agreed upon by free and equal persons. For Cornell, in the first chapter of her The Imaginary Domain: Abortion, Pornography and Sexual Harassment (Cornell 1995), a “contractual” test is to be employed to inform the decisions of the lawmakers, whether they are legislators or common law judges who set precedents for later cases. They are to ask themselves whether free and equal persons could agree to the laws that they are considering making. Hampton looks more broadly at the moral decision-making by both the common law judiciary, and legislators, along with everyday relationships. Hampton’s test, to be applied to everyday relationships, is paradigmatically aimed at heterosexual marriage of cis men

5

By adopting that view of personal injury claims, I suspect that judges express a much more common reaction than Nozick’s (1974, 66) attitude to personal injury: that someone could think that their injury was worth suffering in exchange for compensation. This view only makes sense if you fill in more of the story with a desperate dilemma (for example, they needed the money to save themselves or another from greater harm by paying for health care in a Nozickean state that lacked a decent public health service).

Introduction to Section 2 93

and cis women. I discuss this in detail in the next chapter. Below, I will briefly explain the tests that Cornell and Hampton produce by way of introduction. Drucilla Cornell Cornell, as a legal scholar, focuses on rights. At this time, the most poignant example of the many legal ideas that Cornell justifies with her reference to contract is that of abortion rights. In The Imaginary Domain, Cornell sets out a framework in which she argues that the following question should be posed whenever law is made: “would free and equal persons agree to such laws?” (Cornell 1995, ch. 1; for more on Cornell see: Richardson 2000; 1999). So, for example, the answer would be “no” in jurisdictions where there is a fail­ ure by legislators and the judiciary to create and maintain reproductive justice. The basis of Cornell’s argument is that we should all have an equivalent right to develop; to move towards becoming our own ideal of a free and equal persons. Cornell’s psychology draws from Jacques Lacan but can work without such a psy­ choanalytic framework. In common with Battersby and Cavarero discussed in the last section, Cornell rejects the idea that we have an underlying essence of “who we are”; that – after childhood – we have a fixed personality. Instead, she envisages human beings struggling to develop towards an ideal image (“imago”) of them­ selves. Women and trans men (anyone who can become pregnant) are undermined in this development (and hence lack an equivalent right to cis men) if they live in a society in which reproductive justice is denied to them (Cornell 1995, ch. 1). This argument is fleshed out by her analysis of what she calls “the imaginary domain,” the images, icons, arts, and portrayals of ourselves in society (Cornell 1995). As a playwright, this is important to Cornell. Central to the imaginary domain is our “imago” or ideal image that we have of ourselves, which is important for our life-long self-development. In this example regarding abor­ tion rights, those who are capable of becoming pregnant (even if not in that position at this point in time) know that they could be forced to bear a child against their will. They are therefore denied an equivalent right to self-devel­ opment compared to those who are not in that position (for example, cis men), i.e. they will not be treated in law as free and equal persons. Note that, for Cornell in this example, the problem extends beyond those who actually want and are denied an abortion. This absence of reproductive justice harms anyone capable of giving birth who could, in future, be denied a right to abortion. This is because of the psychological implications of the law for self-development. I would add that in certain cultures it is possible to extend Cornell’s examples further. For example, a right-wing Supreme Court, as in the contemporary US, which has over-ruled Roe v Wade (1973)6 regarding 6

Roe v Wade (1973) 410 U.S. 113. This was over-ruled in Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v Jackson Women’s Health Organization, et al. (2022) WL 2276808.

94 Section 2

abortion rights, is now likely to rule in ways that disadvantage other groups, as illustrated by the concern that rights in relation to racial justice will now be undermined. If we assume that Cornell is correct in extending concerns regarding the risk of loss of rights to anyone who could become pregnant (and not just those who are denied an abortion) then it is consistent to extend the concern to others whose rights are (very?) likely to be undermined. Law usually concerns such a debate as to where to draw the line with regard to extending its ambit. Cornell’s position is based upon a psychological analysis that is then employed to re-think the Kantian ideal of free and equal persons. We are trea­ ted as if we were free and equal persons if we have an equivalent right to selfdevelopment, detailed above. She is therefore able to apply her conceptual fra­ mework to different situations, so as to analyse the impact of sexual harassment and to call for laws that oppose it, for example. This is on the basis that to allow sexual harassment would be to fail to treat cis and trans women, in par­ ticular, as free and equal persons. Sexual harassment involves inflicting the harasser’s image of women onto the victim-survivor in ways that potentially undermine the survivor’s own imago and hence self-development. Cornell (1995, 6) refers to these rights as “sexuate” rights in order to include the problem of harassment of the LGBTQI+ persons. She employs an example of a gay couple holding hands in a cafe (Cornell 1995, 11). As such expressions of affection are central to their self-development, these trump any rights claimed by a homophobic cafe owner or visitor. The homophobe may feel uncomfor­ table but would not have his or her own imago (or self-development) under­ mined by a demonstration of same sex affection in a public. It is easy to see how Cornell’s argument regarding abortion could be employed to justify state medical intervention for trans persons on the grounds that failure to do so would undermine their equivalent right to self-development and would impose another person’s image of “who they are” upon them. Again, they would be denied an equivalent right to self-development such that the law would be treating them as less than free and equal persons. Cornell also applies this argument to issues of race, for example, regarding Spanish language rights in the US. To summarise, Cornell is aiming to change law and to have judges and leg­ islators ask what free and equal persons would agree to. This approach differs from that of Pateman, discussed above (and in Chapter 8) because Pateman wants a political system in which people themselves are able to say what they actually want in her political, rather than legal, analysis. Jean Hampton I have linked Hampton’s work with that of Cornell in that both ask similar questions, derived from Kant, despite the gulf that usually lies between analytic philosophy (illustrated by Hampton) and continental philosophy (Cornell). This

Introduction to Section 2 95

can be seen in the anti-humanism that is central to Cornell’s analysis in which we are not envisaged as having an underlying essence that defines us. In her work, “who we are” is always in a state of development; in a constant state of “becoming” that requires legal protection. This image of selfhood differs from Hampton’s position, albeit that Hampton is also concerned with those who learn to have low expectations. Such expectations arise as a result of the way that subalterns have been treated, starting in childhood. Focusing mainly on gender and race, Hampton compares their experiences with those who have been socialised to have an excessive sense of entitlement, viewing themselves as superior to others. Turning to Hampton’s test, as I explain in detail in the next chapter, this is a test of fairness in relationships. It can be applied in a number of areas including the criminal law; to address the question of when it is moral to forgive; and as a test for fairness in (paradigmatically) heterosexual cis marital relationships. This issue of forgiveness can take place at the level of individuals who have been wronged and in the context of societies, as illustrated by the work of the Truth and Reconciliation Commission in South Africa after the end of Apart­ heid. Hampton views this wrong as consisting in the treatment of individuals as if they were less than free and equal persons, i.e. as lower in status than the perpetrator. She argues that forgiveness is inappropriate when the perpetrator continues to view the victim survivor as less than a person. Like Cornell, Hampton is also interested in the duties of the courts in the treatment of vic­ tims as free and equal persons. Like Cornell, she also has a liberal position, albeit less radical,7 drawn from Kant, in some ways are similar to Rawls, to be discussed below. To gloss (and simplify) Hampton’s tests, which I will detail in the next chapter, I have referred to these as being: “would a free and equal person agree to be part of this relationship?” associated with the question, “ Is x being treated as if she were free and equal?” What I find interesting in Hampton’s work is not the central debt to Kant but the way that she thinks about the psychology of those who are socialised to view themselves as subordinate, with a lower sense of self-worth than others. In Richardson (2020), I compare her position with that of Spinoza’s Ethics. Hampton’s focus on subordination is useful to highlight examples in everyday life when subalterns are insidiously undermined, along with the role of law, discussed in the next chapter. Hampton bases her useful analysis on a broad Kantian position regarding objective moral equality, that she views as existing in the world. In Richardson (2020), I argue that it is not necessary (or helpful) to adopt this Kantian metaphysics to support her arguments. I turn to Spinoza to consider the political problems of subordination that inculcates humility in some and pride in others. In particular, such inequality undermines the powers 7

Cornell’s position is more radical in that her engagement with US liberals allows her to claim that anyone accepting their position needs to go further to accept her soci­ alism and feminism.

96 Section 2

of acting of some members of the community (for excellent examples and ana­ lysis from a Spinozist position, see Gatens 1996). While Spinoza did not recog­ nise that there were systematic ways in which humility and pride are inculcated regarding gender, for example, he does give a detailed account of their impli­ cations. For Spinoza, both the proud and humble have inadequate knowledge of themselves, which undermines their ability to understand their interactions with the world. Given that the way that we increase our powers of acting (as a result of understanding more about our interactions) is centrally important for Spi­ noza,8 any society that systematically undermines its members’ self-perception will reduce that society’s ability to survive. While Hampton’s analysis of psychology differs from that of Cornell, they share an important focus on the psychological impact and reinforcement of subordination and its relationship to law. Hampton’s tests of fairness in rela­ tionships are informed by actual relationships as well as those drawn from lit­ erature. She details the experiences of women who think that they have a “special” sort of morality that makes them care for others at the expense of themselves, while not expecting others to reciprocate. Hampton’s answer to the problem of subordination is for individuals to be guided by her tests. So, for example, whether those in a marital relationship are treated with respect as if they were free and equal persons. Despite focusing on relationships in terms of whether there seems to be an equal bargain, Hampton employs her test as an indicator of respect within the relationship itself. Okin and Mills As a result of their Kantian antecedents, Hampton’s test also has similarities with that of Susan Moller Okin’s (1989) test, particularly Okin’s influential critique and improvement upon Rawls’ Theory of Justice (Rawls [1971] 1999). Rawls asked how people would act if called upon to make a decision about the rules of a society if they did not know what position they would be in within this envisaged society (i.e. they were deciding under a “veil of ignorance”). He envisaged those meeting as male “heads of household.” Remarkably, given the women’s movement at the time, he was unable to recognise that wives do not have an identity of interest with their husbands.9 Okin is sympathetic to Rawls’ broader move but pointed out that the “veil of ignorance” should include the issue of gender, i.e. the question of whether anyone under the “veil of ignor­ ance” would risk being treated as a woman in a patriarchal society.

8 9

See Chapter 4 for details.

I explore the question of this type of failure in my paper on personal/political change

in Richardson (2020). I consider the remorse of a trade union official who remem­ bered including rape jokes in a Trade Union magazine and later could not believe that he did it. He then felt as if he were a different person. I consider this in the context of Spinoza, with a reading of (Balibar 2013) and (Coleman 2005) on Locke.

Introduction to Section 2 97

Charles Mills (Mills 1997; Pateman and Mills 2007) expresses his debt to both Okin and Hampton. In The Racial Contract, he makes a similar move in thinking of race under the Rawlsian “veil of ignorance.” It is clear that nobody choosing the rules of a future society, in which they were to live, would risk being black in the US under slavery, Jim Crow laws or indeed today. So, Mills extends the argument that Okin makes regarding gender to think about race within the framework of the social contract. As Pateman makes clear, the argument employed by both Okin and Mills does not rely upon the contract per se (“in Rawlsian moral reasoning the contract metaphor does no real work” Pateman and Mills 2007, 22). The argument boils down to saying, “would you risk being a woman in a misogynist society?” (Okin) or “would you risk being black in a racist society” (Mills)? So, for Pateman, they do not rely upon thinking about a contract at all. It forces readers to think “how would I like it?” This is important for Pateman because of the way she highlights the pro­ blems with the operation of the social contract idea and contract law itself, as I discuss above and in this section, particularly in Chapter 8 (see also: Richardson 2009; 2015b; 2017; 2007a; 2007b; 2013).

Chapters in This Section Chapter 6 is titled “On Not Making Ourselves the Prey of Others: Jean Hampton’s Feminist Contractarianism.” In this chapter, I assess Jean Hamp­ ton’s use of contract by considering the way she compares the (very different) positions of Hobbes and Kant to produce a test for exploitation in personal relationships. Having touched on Hampton’s analysis above, I go into greater depth regarding the details of Hampton’s envisaged test for fairness and how it is meant to work. I discuss how her conceptual framework fits with her other analyses of retribution, gratitude, and self-worth. In addition, I turn to Carole Pateman’s work (which I discuss further in Chapter 8) to evaluate Hampton’s conceptual framework. Pateman (2002) argues that moral theories distract from the political analysis of who has a voice in the decision-making that affects their lives. As I will discuss in Chapter 8, this includes an analysis of positive freedom and applies in different circumstances: the home, employ­ ment, and the state. Pateman questions how we can expect to have a democ­ racy in the polis if everyday life consists of a training in subordination, as outlined briefly in this introduction. Hampton’s work presumes the social and economic structures that Pateman has done so much to understand and cri­ tique. However, as discussed above, Hampton’s focus on highlighting the training in subordination in the home and its impact is useful. She includes concerns about race as well as gender in the context of the US. I argue that her analysis of justice in personal relationships can be considered as part of consciousness-raising. Turning to Chapter 7, I introduce this chapter with one insight from Jean Hampton on the social contract:

98 Section 2

[D]ifferences and disagreements among people who are supposedly in the same philosophical camp show that contractarians are united not by a common philosophical theory but by a common image. Philosophers hate to admit it, but sometimes they work from pictures rather than ideas. (Hampton 2007, 8) In this chapter, entitled “Hobbes’ Frontispiece: Authorship, Subordination and Contract,” I consider three different images: the picture on Hobbes’ frontispiece to Leviathan, the image of the bodily parts rebelling in the Fable of the Belly, and the image of individuals sitting round a table negotiating. I examine Hobbes’ frontispiece in detail to argue that Hobbes’ provides a more honest picture of authority and of contract than is produced by today’s liberal images of free and equal persons. Importantly, in the seventeenth century, at the start of modern political thought, Hobbes saw no contradiction between contractual agreement and subordination. I argue that Hobbes’ frontispiece – that depicts the enormous sovereign, comprised of the smaller bodies of his subjects who are envisaged as enveloped within his body – is a vivid portrayal of a “persona covert.” This is derived from the term, “feme covert,” a wife who was characterised in common law as so dominated by her husband that she is imagined as being “covered” by his body. This image of being subsumed within another body provides a stark image of subordination in Hobbes’ frontispiece. This link between husband’s authority and that of a sovereign is recognised by Hobbes who viewed the family in civil society as a kind of “mini-state” in which obedience to the sovereign should be taught (see Richardson 2009; Hinton 1968). Obviously, this mini-state should not threaten the sovereign him or herself.10 While I do not include this point in the chapter, it is interesting to compare this image of domination by inclusion into the sovereign’s body with Graeber’s (2007) anthropological examination of highly formal relationships. Graeber highlights the idea that someone of high status is conceptualised as being able to envelope (or stand in for) others. This can been seen as depicted in Hobbes’ frontispiece and in the way that Blackstone (1765, 442) describes the doctrine of coverture. So, the sovereign is viewed as representing the country and, at a different scale, husbands cover and “stand in for” their wives under the doctrine of coverture. Similarly, “Man” subsumes women, as both male and universal, in an image that Battersby and Cavarero both also disrupt, as discussed in the first section. In Chapter 4, I considered critiques of this position regarding uni­ versals, including Spinoza’s early analysis of universals, as a cognitive mistake (E 2p40d).11 In Chapter 7, I draw attention to the irony that the depiction of power in Hobbes’ frontispiece (and in the doctrine of coverture) is that of a dominant figure, who contains the bodies of subordinate others within his 10 Hobbes accepts female sovereignty, Hobbes 1994, 130, XX [7]. 11 Spinoza (1985) E 2p40d.

Introduction to Section 2 99

body. This is a reversal of the only times when humans actually contain others within themselves. The irony arises because pregnancy is often associated with subordination, working a double shift, and poverty or the risk of poverty upon relationship breakdown. In Chapter 8, “Carole Pateman, the Sexual Contract, and Freedom,” I discuss the problems with the public/private divide, alongside domination and freedom. In this final chapter of the section, I provide an overview of one important aspect of Pateman’s work: the contracts that involve the exchange of property in the person in modernity. I then compare her conception of freedom with that of Graeber and Wengrow. Graeber and Wengrow (2021, 6–9) challenge the stories of the social contract (along with the idea that any relations of sub­ ordination are natural) by analysing the diversity of human societies in early societies (“states of nature”). I demonstrate that their practical outline of basic practices of freedom in early societies is consistent with many aspects of Pate­ man’s analysis of freedom. I argue that these two analyses of freedom in the context of subordination can enhance each other, despite the fact that Pateman (rightly) argues that her emphasis is necessarily upon the influence of the seventeenth and eighteenth-century social contract theorists. In response to the seventeenth and eighteenth-century social contract theorists’ stories, Pateman produces a different story to convey her arguments. She mimics the social contract theorists by producing another “as if” story in response to their stories. Her story of the sexual contract answers her question as to why the social contract theorists could be so progressive regarding men yet continue to view women’s subordination as natural. She describes this inconsistency as arising from a society that works “as if” there were a sexual contract only between men, as a result of which women were subordinated. This story highlights the anomalous treatment of women while also viewing it as constructed. In her later work with Mills, “Contract Theory and Global Change” Pateman (Pateman and Mills 2010) analyses racial contracts, discussing “settler contracts.” She discusses how, in The Sexual Contract, she was attentive to class and race in her analysis of the employment contract, tracing the history in the US in which only white men were allowed to be part of the “aristocracy” of labour. She analyses the changes in migration and the problem of “flexible work.”12 Finally, Pateman emphasises that her analysis is not about groups but concerns “power structures, subordination and freedom” (Pateman and Mills 2010, 123). She says, In my analysis of the marriage contract, for instance, I was not looking at husbands and wives as two groups, but at what it meant to be a “husband” or “wife” in a specific historical, legal and social context. (Pateman and Mills 2010, 123)

12 On “gig work,” see also Guy Standing’s The Precariat (Standing 2011).

100 Section 2

Finally, in Chapter 8, I discuss Pateman’s view that the sexual contract is a “heterosexual contract,” along with Wittig’s “heterosexual contract” (Wittig 1989), and Paul Preciado’s historical analysis of the heterosexual contract and its relevance today (Preciado 2020, ch. 4)

Bibliography Anderson, Elizabeth. 1990. “Is Women’s Labor a Commodity?” Philosophy and Public Affairs 19 (1): 71–92. Bailey, Alison. 2011. “Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy.” Hypatia 26 (4): 715–741. Balibar, Étienne. 2013. Identity and Difference: John Locke and the Invention of Con­ sciousness. Edited by Stella Sandford. Translated by Warren Montag. London: Verso. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Blackstone, William. 1765. Commentaries on the Laws of England: In Four Books. Oxford: Clarendon Press. Coleman, Janet. 2005. “Pre-Modern Property and Self-Ownership before and after Locke: Or, When Did Common Decency Become a Private Rather than a Public Virtue?” European Journal of Political Theory 4 (2): 125–145. https://doi.org/10.1177/ 1474885105050446. Cornell, Drucilla. 1995. The Imaginary Domain: Abortion, Pornography and Sexual Harassment. London: Routledge. Fraser, Nancy, and Linda Gordon. 1994. “A Genealogy of Dependency: Tracing a Key­ word of the U.S. Welfare State.” Signs 19 (2): 309–336. https://doi.org/10.1086/494886. Gatens, Moira. 1996. Imaginary Bodies: Ethics, Power and Corporeality. London: Routledge. Gneezy, Uri, and Aldo Rustichini. 2000. “A Fine Is a Price.” The Journal of Legal Studies 29 (1): 1–17. https://doi.org/10.1086/468061. Graeber, David. 2007. “Manners, Deference, and Private Property: Or, Elements for a General Theory of Hierarchy.” In Possibilities: Essays on Hierarchy, Rebellion, and Desire. Oakland CA: AK Press. Graeber, David, and David Wengrow. 2021. The Dawn of Everything: A New History of Humanity. London: Penguin. Green, Karen. 2014. A History of Women’s Political Thought in Europe, 1700–1800. Cambridge: Cambridge University Press. Green, Karen. 2020. Catharine Macaulay’s Republican Enlightenment. London: Routledge. Hampton, Jean. 2007. “Feminist Contractarianism.” In The Intrinsic Worth of Persons: Contractarianism in Moral and Political Philosophy, edited by David Farnham, 1–38. Cambridge: Cambridge University Press. Hinton, R.W.K. 1968. “Husbands, Fathers and Conquerors.” Political Studies 16 (1): 55–67. Hobbes, Thomas. 1651/1668. 1994. Leviathan: With Selected Variants from the Latin Edition of 1668. Edited by Edwin Curley. Indianapolis: Hackett.

Introduction to Section 2 101 Kant, Immanuel. 1797. 1996. The Metaphysics of Morals. Edited by Roger J. Sullivan. Translated by Mary J. Gregor. 2nd revised edition. Cambridge Texts in the History of Philosophy. Cambridge: Cambridge University Press. Locke, John. 1689. 1988. “Second Treatise.” In Locke: Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press. Mills, Charles W. 1997. The Racial Contract. Ithaca NY: Cornell University Press. Nozick, Robert. 1974. Anarchy, State and Utopia. New York: Basic Books. Okin, Susan Moller. 1989. “Justice as Fairness: For Whom?” In Justice, Gender, and the Family, 89–109. New York: Basic Books. Pande, Amrita. 2011. “Transnational Commercial Surrogacy in India: Gifts for Global Sisters?” Reproductive BioMedicine Online 23 (5): 618–625. https://doi.org/10.1016/j. rbmo.2011.07.007. Pande, Amrita. 2014. Wombs in Labor: Transnational Commercial Surrogacy in India. South Asia Across the Disciplines. New York: Columbia University Press. Pateman, Carole. 1988. The Sexual Contract. Cambridge: Polity Press. Pateman, Carole. 1989. “Feminist Critiques of the Public/Private Dichotomy.” In The Disorder of Women, 118–140. Oxford: Polity Press. Pateman, Carole. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts.” The Journal of Political Philosophy 10 (1): 20–53. http s://doi.org/10.1111/1467-9760.00141. Pateman, Carole, and Charles W. Mills. 2007. Contract and Domination. Cambridge: Polity Press. Pateman, Carole, and Charles W. Mills. 2010. “Contract Theory and Global Change: The Intersections of Gender, Race and Class.” In Sexuality, Gender and Power: Intersectional and Transnational Perspectives, edited by Anna G. Jónasdóttir, Valerie Bryson, and Kathleen B. Jones. London: Routledge. https://doi.org/10.4324/9780203834916. Preciado, Paul B. 2020. An Apartment on Uranus. Translated by Charlotte Mandell. New York: Semiotext(e)/Foreign Agents. Radin, Margaret Jane. 1996. Contested Commodities: The Trouble with Trade in Sex,

Children, Body Parts, and Other Things. Cambridge MA: Harvard University Press.

Rawls, John. 1971. 1999. A Theory of Justice. 2nd ed. Oxford: Oxford University Press.

Richardson, Janice. 1999. “‘A Burglar in the House of Philosophy’: Theodor Adorno and Drucilla Cornell and Hate Speech.” Feminist Legal Studies 7 (1): 3–31. https://doi.org/ 10.1023/A:1009285602918. Richardson, Janice. 2000. “A Refrain: Feminist Metaphysics and Law.” In Feminist Per­ spectives on Law and Theory, edited by Janice Richardson and R. Sandland, 119–134. London: Routledge Cavendish. Richardson, Janice. 2007a. “Contemporary Feminist Perspectives on Social Contract Theory.” Ratio Juris 20 (3): 402–423. https://doi.org/10.1111/j.1467-9337.2007.00367.x. Richardson, Janice. 2007b. “On not Making Ourselves the Prey of Others: Jean Hamp­ ton’s Feminist Contractarianism.” Feminist Legal Studies 15 (1): 33–55. Richardson, Janice. 2009. The Classic Social Contractarians. London: Ashgate. Richardson, Janice. 2013. “Jean Hampton’s Reworking of Rawls.” In Feminist Inter­ pretations of John Rawls, edited by Ruth Abbey, 133–149. University Park PA: Pennsylvania State University Press. Richardson, Janice. 2015a. Law and the Philosophy of Privacy. New York: Routledge. Richardson, Janice. 2015b. “Hobbes’ Frontispiece: Authorship, Subordination and Con­ tract.” Law and Critique, October, 1–19. https://doi.org/10.1007/s10978-015-9165-9.

102 Section 2 Richardson, Janice. 2017. “Feminist Engagements with Social Contract Theory.” In The Routledge Companion to Feminist Philosophy, edited by Ann Garry, Serene J. Khader, and Alison Stone, 82–93. Routledge Philosophy Companions. New York: Routledge. Richardson, Janice. 2020. “Spinoza’s Conception of Personal and Political Change: A Feminist Perspective.” Law and Critique 31 (2): 145–162. https://doi.org/10.1007/ s10978-019-09255-6. Sandel, Michael. 2012. What Money Can’t Buy: The Moral Limits of Markets. London: Penguin. Spinoza, Benedictus de. 1985. Ethics. In The Collected Works of Spinoza, edited and translated by Edwin M. Curley, 1: 408–617. Princeton NJ: Princeton University Press. Srinivasan, Amia. 2022. The Right to Sex. London: Bloomsbury. Standing, Guy. 2011. The Precariat: The New Dangerous Class. London: Bloomsbury Academic. Titmuss, Richard. 1971. “The Gift of Blood.” Society 35 (2): 88–97. Wittig, Monique. 1989. “On the Social Contract.” Feminist Issues 9 (1): 3–12. https://doi. org/10.1007/BF02685600.

Chapter 6

On Not Making Ourselves the Prey of Others Jean Hampton’s Feminist Contractarianism

In this chapter, I assess Jean Hampton’s feminist contractarianism by con­ sidering the way in which she draws together the contradictory positions of Hobbes and Kant to produce a test for exploitation in personal relationships. The ways in which this work fits with her other analysis of retribution, grati­ tude, and self-worth are examined. Hampton’s work is evaluated in the context of Carole Pateman’s argument that moral theories distract from the political analysis of who has a voice in relationships. Hampton’s work presumes the social and economic structures that Pateman has done so much to understand. It is useful as a claim for justice in personal relationships, to be considered as part of consciousness-raising or public debate.1

Introduction In her article entitled “Feminist Contractarianism” Jean Hampton suggests the following test: Given the fact that we are in this relationship, could both of us reasonably accept the distribution of costs and benefits (that is, the costs and benefits that are not themselves side effects of any affective or duty based tie between us) if it were the subject of an informed, unforced agreement in which we think of ourselves as motivated solely by self-interest? (Hampton [1992] 2018, 351) The aim of the test is to determine whether anyone is being exploited within any relationship. It presupposes that “contractarianism illuminates distributive justice” (Hampton [1992] 2018, 338) and that such justice is relevant to domestic relationships and friendships rather than simply for strangers. 1

Reprinted by permission from Springer Nature Customer Service Centre GmbH: Springer Feminist Legal Studies “On Not Making Ourselves the Prey of Others: Jean Hampton’s Feminist Contractarianism,” Janice Richardson, 2007: https://www.sp ringer.com/journal/10691 DOI: 10.4324/9780429329678-8

104 Section 2

The test is interesting for a number of reasons: its origin, which owes as much to Hobbes as to Kant and fits within Hampton’s concern with the need to express self-interest within theories of morality; the image of self-worth and personhood that is assumed; as well as the reaction that the test has received. I want to explore the ways in which Hampton brings together the contradictory positions of Hobbes and Kant. I will then evaluate the test in the context of Pateman’s (2002) argument that the political question of “who has a voice” in every sphere of life has been sidelined by the current emphasis upon morality at the expense of such political questions. At first blush, it appears that Hamp­ ton’s test is exactly the sort of position that Pateman is attacking. Nevertheless, I think that Hampton’s test derives from (and can be viewed as a corollary to) the very useful work that Pateman has carried out in analysing inequality in relation to both traditional marriage and employment. The test does not rely upon the use of contract per se but upon the idea of equal personhood and self-worth that has historically been denied to women. It should not be envisaged as a test employed by individuals alone in some darkened room but as the basis of a political inter­ vention, as part of what was viewed as “consciousness raising” or public argu­ ment. In this sense, Hampton’s work can be viewed as part of the construction of self rather than derived from some notion of a pre-existing self, albeit that such an anti-humanist position is not one that Hampton would have embraced.

Self-Interest and the Origin of the Test Hampton describes the need to consider self-interest as a moral issue by addressing some of the work of Carol Gilligan. Hampton explains the motiva­ tion for her test by drawing upon examples, given by Gilligan, of the moral reasoning of 11-year-old Jake and Amy. When asked the question: “when responsibility to oneself and others conflict, how should one choose?” Jake confidently replies that, “You go about one-fourth to the others and threefourths to yourself” (Gilligan 1982, 36; cited in Hampton [1992] 2018, 338). Amy’s response is that: Well, it really depends on the situation. If you have responsibility with somebody else [sic] then you should keep it to a certain extent, but to the extent that it is really going to hurt you or stop you from doing something that you really, really want, then I think that maybe you should put your­ self first. But if it is your responsibility to someone really close to you, you’ve just got to decide in that situation which is more important, yourself or that person, and like I said, it really depends upon what kind of person you are and how you feel about the other person or persons involved. (Gilligan 1982, 36; cited in Hampton [1992] 2018, 338) While Jake can be criticised for selfishness, Hampton argues that Amy is too selfless. Hampton’s test is clearly aimed at saving Amy from exploitation.

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The influences of both Hobbes and Kant must be traced in order to understand the test. To start, it is useful to consider the way in which Hampton deals with the incompatibility of their views, which can be illu­ strated by their differing conceptions of the role of their hypothetical social contracts. Hampton points out that the social contract tradition has two strands: one with its roots in Hobbes which has been revived with the influence of game theory in the work of such writers as Gauthier (1987), and the strand influenced by Kant whose contemporary influence can be seen directly in, for example, Rawls ([1971] 1973). For Hobbes the impetus for creating a social contract is that we need to cooperate with others in order to obtain a more comfortable life. If we were self-sufficient then we would not need to do so. In contrast, for Kant the idea of a social contract does not involve self-interest. It is a heuristic test that allows us to recognise others as persons. This view of personhood is a political and moral concept (rather than legal personhood, which simply means having the ability to sue or be sued in the courts). For Kant, to be treated as a person is to be respected as having equal self-worth and as able to set one’s own goals, rather than as being merely a means to an end. Hampton points out that Hobbes’ individuals merely mimic respect for each other in order to ensure that their own desires are satisfied through coopera­ tion. In contrast, Kant employed the idea of the social contract as a thought experiment. It allows us to judge whether laws are legitimate by asking if free and equal persons could have agreed to them had they been given the chance. Kant expresses this in the following terms, “[The social contract] is rather a mere idea of reason, albeit one of indubitable practical reality, obliging every lawmaker to frame his laws so that they might have come from the entire will of an entire people” (Kant [1793] 1970, 63). Kant does not aim to justify legis­ lation by implied consent. Instead, the social contract device can be used to argue against legislation on the grounds that it is not something that everyone could agree to, and the example he gives of such legislation is that which bestows hereditary privilege (Kant [1793] 1970, 63). Hampton draws upon Kant to make a similar move but does not employ the idea of a contract to consider the legitimacy of legislation. Instead, she uses it to test the morality of rela­ tionships, such as that between husband and wife, to consider whether there is exploitation. The merging of Hobbes and Kant in one contractarian test of morality would initially appear difficult, given that their reasons for the social contract are incompatible, as illustrated above.2 However, Hampton is consistent in her claim for an objective morality based upon respect for persons that she derives from Kant. She injects the Hobbesian view that “you are under no obligation to

2

For a similar argument that Rawls attempts to pull together these incompatible strands from Hobbes and Kant see Bufacchi (2000).

106 Section 2

make yourself prey to others”3 in a manner that is also consistent with the Kantian respect for persons. One description of her test would be to say that she is focusing upon the position of women in our society as the norm rather than as an aberration. Whereas the Kantian view of personhood is usually employed to insist that persons should respect each other, Hampton is emphasising that Kant also argues, for the same reason, that persons must respect themselves. This move becomes necessary when the focus is no longer upon men (such as selfish Jake) as the norm but upon the position of women, like Amy, whose error is the mirror image of Jake’s immaturity. Amy shows too much care to others and would easily be exploited. On initial reading, Hampton appears to split emotions from reason in a way that reflects Kant’s antinomy of freedom. Kant ([1787] 1965, 464) proposes a split between the noumenal (intelligible) realm of reason, in which we can all employ the moral law, and the phenomenal (sensible) world in which we are subject to necessity as physical beings. Hampton appears straightforwardly Kantian in two respects: the way that we are asked, first, to employ a heuristic test by employing reason (albeit to think about domestic relationships); and second, to ignore emotional ties in the operation of the test itself. However, despite her Kantianism, Hampton draws upon Gauthier (1987, 11) for an argument, which she describes in the following terms: “One’s propensity to give gifts out of love or duty should not become the lever that another party who is capable of reciprocating relies upon to get one to maintain a relationship to one’s cost” (Hampton [1992] 2018, 350; italics in original). Hampton adds, “Perhaps this is most deeply true within the family. A woman whose devotion to her family causes her to serve them despite the fact that they do little in return is in an exploitative relationship” (Hampton [1992] 2018, 351). This represents the Hobbesian element in her argument: that one is not under any obligation to make oneself the prey of another. Gauthier (1987, 11) acknowl­ edges that feminism has been successful in making the case that sociability can become a source of exploitation if it induces people to take part in institutions and practices that would otherwise be costly to them. Hampton’s test is there­ fore set up to check for exploitation by excluding such emotional leverage. Sample (2002, 273) in her analysis of Hampton’s test, argues that, in order to be consistent in Gauthier’s terms, it is necessary to consider his technical defi­ nition of exploitation. Given that he draws from game theory to think about Hobbes, he defines exploitation as “the outcome for a person whose partner 3

Hampton emphasises that this aspect of Hobbes is important in her work in an interview (Hampton and Pyle 1999, 231–38; Hampton 1998, 236). Hobbes argues that, “For he that should be modest and tractable, and perform all he promises in such time and place where no man else should do so, should but make himself a prey to others, and procure his own certain ruin, contrary to the ground of all laws of nature which tend to nature’s preservation” (Hobbes [1651/1668] 1994, ch. XV, para. 36; italics added).

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defects from the joint strategy on which he bases his action” (Gauthier 1987, 175). Leaving aside the issue of whether this conception of game theory ade­ quately describes relationships, it should be noted that in this (Hobbesian) view of exploitation only the party exploited is behaving irrationally. In contrast, in Kantian terms, exploitation is wrong because it fails to accord the exploited person (say Amy) her self-worth as a person. It is to use her as a means to an end. So, for Kant the “winning party” (say Jake) in such a “game” should not exploit the circumstances that allow him to win. The positions of Hobbes and Kant dovetail at this point (in that both attack exploitation) despite their different views regarding self-worth. By focusing upon Amy and drawing from Hobbes, Hampton therefore differs from Kant in her treat­ ment of self-interest. Kant argued that the moral law should be used to treat others as an end in themselves. Morality is therefore linked with reason (and duty) and positioned as being in opposition to self-interest. In other words, for Kant you obey the moral law (by using reason) and treat others as persons irrespective of your selfinterest, which is merely part of your concerns in the sensible realm. While Kant’s view is purportedly universal, it makes more sense if you imagine that his arguments are addressed to Jake, who needs encouragement to consider others’, rather than his own, interests. When the focus of attention is switched to Amy, then conversely it is her lack of self-interest that is unreasonable. Importantly, in Amy’s case, the duty she perceives herself as owing to others is linked, not with reason, but with the ties of emotion. So, in Hampton’s test, self-interest is on the side of reason in opposition to such emotional ties and the duty that arises from them. It is useful to draw a legal analogy to understand Hampton’s move. In the common law of tort, you owe a duty of care not to harm others, which can be viewed as Kant’s main concern and makes sense when aimed at encouraging Jake to behave fairly. However, you also owe yourself a duty of care not to harm yourself, which Hampton highlights, and which is needed as a corrective to Amy’s position. Hampton argues that it is because discussions of morality are aimed at improving men like Jake (as the norm) that they focus upon the importance of considering the needs of others. It therefore appears that Amy’s response is moral because she is so concerned with the welfare of others. Hampton describes this as a mere mimicry of actual morality because it derives from Amy’s lack of self-worth rather than respect for both herself and others as persons. It is striking that Hampton therefore refers to two alternative types of “mimicry” of morality: Amy’s treatment of others based upon her lack of selfrespect and the Hobbesian treatment of others based upon self-interest, without respect for others. This reflects the opposing errors of Amy and Jake and represents their training in subordination and domination, respectively.

The Role of the Contract While exploring the way in which Hampton draws upon both Kant and Hobbes, I want to explain the role of contract in this “feminist

108 Section 2

contractarianism.”4 Hampton’s (1997b, 141) analysis of Rawls helps shed light on this issue because she raises a question that must also be asked with regard to her own contractarianism. What is the role of the contract, here? In Rawls’ A Theory of Justice, he employs Kant’s image of a hypothetical contract to ask what principles of justice everyone could agree to if they met under a veil of ignorance and hence did not know what their position in society would be. As is well known, he argues that they would agree two principles of justice: The first principle is that “Each person is to have an equal right to the most exten­ sive basic liberty compatible with a similar liberty for others” (Rawls [1971] 1973, 60). The second principle is that: “Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all” (Rawls [1971] 1973, 60). Hampton argues that Rawls does not really rely upon the idea that what binds the participants is that they have agreed to some hypothetical contract. Instead she argues that Rawls evokes the contract in order to ask us to imagine ourselves in the position of the worst off in a society: [I]n fact the reason the two principles are selected by each person in the original position seems to have nothing to do with the contract but rather the fact that each person, reasoning on his own knows that “he could be any person” and thus chooses so as to ensure that the least advantaged do not lose out. It therefore appears that it is the idea that “I could be anyone” and not the prospect of having to agree with any other person in this position, that leads to the choice of two principles. (Hampton 1997b, 141) While Rawls is concerned with principles of justice and not the morality of particular legislation, this move is true to Kant in that it is aimed at checking that everyone is treated as a person, i.e. as an end in him/herself and not according to a lower status. In this sense Hampton follows both Kant and Rawls, relying upon the evocation of a contract as a device to check for an absence of respect for personhood. Hampton’s test may be applied to domestic relationships that could be bound by an actual marriage contract but it does not rely upon the contractual agreement per se. Hampton ([1992] 2018, 353) argues that Rawls (and also, by extension, Hampton herself) can still be viewed as “contractarians” because – even though they do not rely upon the contract per se – they employ their thought experiments in order to tap into the same thing: the idea of personhood and equal worth. Hampton evokes the idea of contract as a thought experiment with the aim of distancing oneself from a situation in order to evaluate it. This move of abstraction has been the subject of much feminist criticism (as has the 4

The term is associated with Hampton’s work rather than a school of thought per se.

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associated attempt to separate emotional ties from reason and the question of reasonableness). In the next section I will continue to elaborate Hampton’s position – by tracing the way in which the Kantian assumption of the equal worth of personhood, which forms the basis of her test, also informs her other work – and will then consider these criticisms in later sections.

The Lesson from the Egoist The way in which Hampton’s feminist contractarianism blends the work of Hobbes and Kant while maintaining a Kantian view of persons who have equal objective worth (and should not be treated as a means to an end) can be illustrated by con­ sidering her further analysis in “The Wisdom of the Egoist: The Moral and Political Implications of Valuing the Self” (Hampton 1997a). Interestingly, for Hampton, egoists value themselves for the right reasons. They do not value particular abilities, which can be rated in relation to others, but instead value themselves as persons. So, their self-worth does not depend upon their abilities or market value but attaches to themselves as persons. Hence their subjective estimation of themselves as worthy of being treated with respect as persons, irrespective of their usefulness to others, is objectively correct in Kantian terms. This objective worth of personhood is difficult to appreciate in a society in which, as Foucault ([1975] 1977) details, we come to view “who we are” in terms of how we are graded (in minute detail) in relation to others. This includes endless statistics ranging from our comparative educational grades to our cholesterol levels. Unfortunately, as Adorno and Horkheimer ([1944] 1979) also illustrate, in a capitalist society we come to view both others and our­ selves in terms of instrumental value, of the usefulness to others that is reflected by the wage we can command: our price. As Hobbes puts it: The value or WORTH of a man is, as of all other things, his price, that is to say, so much as would be given for the use of his power, and therefore is not absolute, but a thing dependant on the need and judgement of another. (Hobbes [1651/1668] 1994, ch. X, para. 16) Importantly, for Kant in contrast with Hobbes the self-worth of persons is equal and cannot therefore be diminished.5 Hampton’s point is that egoists recognise this about themselves. Egoists have the right sense of self-worth as something that cannot be reduced by losing their job, for example; their only fault is that they do not extend this objectively correct perception of the worth of personhood to others. This produces an aspect of a Kantian analysis from a peculiar source: the egoist. 5

In order to explore Hampton’s position, I am leaving aside a number of important arguments regarding Kant’s position on women that are explored in Section 1, par­ ticularly with regard to Battersby (1998); along with other important problems regarding other subalterns.

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To return to Hampton’s test, Hampton follows Kant in starting with the premise that, irrespective of abilities or events, everyone is worthy of treatment as persons – the treatment the egoist rightly accords to herself is generalised to everyone. This is the basic assumption grounding Hampton’s test. Hence, it is not based upon the Hobbesian view that value depends upon our usefulness to others or the market price of our abilities (or in traditional patriarchal societies women’s worth to men as objects themselves). Importantly, Hampton’s test looks to the possibility of treating persons as if they were free and equal. This does not depend upon the social context in which someone may actually be subordinated. On the contrary, this ideal is to be employed to criticise precisely this subordination. While she does not analyse it in her article, Hampton recognises the social context of the development of self-regard in Jake and selfabnegation in Amy. This is a move that forces her to argue (beyond the liberal position from which her work derives) that the state must recognise that oppression can come not only from the state but also from social and economic structures within society (Hampton 1997b, 191).

Retribution and Personhood To examine Hampton’s analysis further (and to continue this consideration of the way in which her test draws upon both Kant and Hobbes) I want to also look at the way in which it is employed in “A New Theory of Retribution” (Hampton 1991) and in her book, Forgiveness and Mercy (Murphy and Hampton 1988). Again, the important Kantian move is Hampton’s emphasis upon the need to respect the equal worth of personhood that is the basis of her test. Importantly for women, this includes recognising one’s own equal worth. Hampton (1991) makes the point that the injury of being subject to a crime is not simply the loss that is incurred. This can be illustrated by comparing our reaction to crime with how we feel when we incur the same loss naturally. The extra pain arises from a sense of insult; that we have been “put down.” Inter­ estingly, Hampton distinguishes between this objective injury (of being treated as unworthy of respect as a person by the criminal who uses you) and the vic­ tim’s subjective evaluation of the injury. For someone who (rightly) recognises her own self-worth (who has managed to avoid any training to become like Amy but instead has taken her lessons from the egoist) a crime will demean her. Someone is “demeaned” when she is hurt by the failure of another to treat her with the respect that she feels she should be accorded. Given the Kantian premise that all persons are equal, this feeling of hurt is the (objectively) right reaction in the case of victims of crime. They correctly perceive that they have not been treated with respect as persons. They are right to feel demeaned by the crime because the criminal is simply using them (i.e. treating them as a means and not respecting them as an end in themselves). It should be noted that it is also possible to feel demeaned in inappropriate circumstances. If a man expects his wife to cater to his every need without reciprocation or a white person

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expects a Black person to stand for him in a bus, a failure of these parties to do so may make him feel demeaned. As a result of living in a sexist/racist society, he feels hurt that he is not accorded the “respect” that he wrongly thinks is due to him. Given the Kantian premise of equal personhood, he is (objectively) wrong to feel demeaned by not being accorded such deference because it is not a failure of respect for personhood for others to refuse to indulge an elite. There are other possible reactions to becoming the victim of a crime that are far worse than the experience of being (objectively) demeaned and Hampton argues that only an appreciation of Kantian personhood can highlight these. If the injured person believes that she is genuinely worth less than the criminal then she may not feel demeaned (as she expects no better treatment) but the act will have reaffirmed her (subjective and incorrect) low sense of self-worth. For example, a woman who thinks that sexual harassment is natural (and some­ thing that women must put up with) will not feel demeaned by such treatment but she is, in Hampton’s terms, “diminished.” When Hampton describes a victim as “diminished” she means that prior to the crime, the victim already subjectively perceived herself as having a lesser worth than she objectively should have done. The crime harms her by reaffirming this belief. In other words, the crime “diminishes” her by perpetuating her false view that she is unworthy of respect as a person. It is also possible for someone who previously thought that she was worthy of respect to feel forced to question this as a result of the crime and hence to start to be “diminished” (i.e. to have the false belief that she is unworthy of respect as an equal person) as a result of the criminal act. Although Hampton does not discuss her contractarian test in her analysis of criminal harm, this harm clearly fails a test that is set up to illustrate far less extreme behaviour. A crime represents the extreme end of test failure, given that one party pays all the costs and receives no benefit in the encounter, such that there is no pretence of reciprocity. It is interesting to compare Hampton’s analysis of crime and of other relationships in order to think about exploitation and subordination, given that Hampton refers to both without further analysis. Employing the terms that she uses to analyse crime, it can be seen that some domestic relationships may involve acts that objectively demean a person (i.e. that she correctly experiences as treating her with less respect than she is due as a person) and others that diminish her (i.e. by reaffirming her low self-worth with treatment that she thinks is simply her lot in life), depending upon her subjective appreciation of her own self-worth. In Hampton’s discussion of crime, just as the criminal sets himself/herself above his/her victim by not recognising the victim’s worth as a person, it could be argued that the exploitation within the domestic sphere relies upon (perpe­ tuates or creates) a status difference between the parties. This has historically been the case in law with marriage contracts under the doctrine of coverture. It is useful to consider the example of rape because in some cultures women have been taught that they are actually of lesser worth as a result of being victim to this crime. They are taught to feel diminished by it. If women are unfortunate

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enough to be in a culture in which they are viewed as objects to be circulated amongst men then this may reduce their (Hobbesian) price on a marriage market but it does not reduce their objective worthiness as a person in Kantian terms. Hampton’s analysis seems to fit particularly well with views of rape, perhaps because historically women have been treated as less than persons and this crime speaks to such a diminished status. For Hampton following Kant this feeling of being of lower worth is not objective (because of the premise of equal personhood). In contrast, for Hobbes given that your worth alters with your price, then it is objective. Further, employing this framework, it is clear that society’s failure to adequately punish such a crime can be seen to be wrong in Kantian terms because it fails to recognise publicly the victim’s equal worth as a person. A similar point can be made with regard to tort law, which Hampton men­ tions in a footnote. She states, “A person wrongs another if and only if (while acting as a responsible agent) she treats him in a way that is objectively demeaning” (Hampton 1991, 395).6 Hampton then comments in a footnote: This definition needs refinement … [T]he definition does not adequately distinguish between intentional harming that counts as wrongdoing, unin­ tentional harm that counts as wrongdoing (negligence) and unintentional harming that does not count as wrongdoing (e.g. accidents). Presumably the first two involve “objectively demeaning” treatment but not the third; however more analysis is needed to explain why this is so. (Hampton 1991, 395) Hampton’s reference to the term “objectively demeaning” refers to the appro­ priate hurt felt by the recipient of any treatment that fails to respect her equal worthiness as a person. This is clear in crime but, it can be argued, also applies to tort law. If the tortfeasor simply cannot be bothered to treat the claimant with reasonable care then she is not accorded the respect that she should be given as an equal person. While this failure to take reasonable care is not as bad as intentional harm, it still signifies a failure of respect that is exacerbated if it goes unacknowledged. It should be acknowledged and remedied by the tortfea­ sor. If this is not done then recognition by the courts represents a public acknowledgment of her equal worth that has been undermined by this failure of respect. A stark example of a failure in this regard is the wrongful birth cases. (For more analysis of these cases see Chapter 10 and Richardson 2004a, 75–81; 2004b.) If a court tells a woman that a doctor’s negligence was in fact a blessing (which has been argued in cases of negligent sterilisation that has resulted in 6

Hampton’s use of pronouns is problematic. She aims to avoid stereotypes but the fact that there are more female victims of male crime is then occluded and is rele­ vant to her concerns, although this does not affect her argument.

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pregnancy)7 then, employing Hampton’s framework, she is not treated as a person. She has not been treated as worthy of a reasonable standard of care nor has any negligence been acknowledged by the tortfeasor. Further, in this case, the court exacerbates the harm by substituting its own view of her goals upon her rather than publicly recognising her ability as a person to decide the direc­ tion of her own life. The court fails to recognise the wrong that has been caused when a doctor employs less than reasonable care in a sterilisation operation if this harm is dismissed as subjective. As with rape, the harm has involved an attack upon a woman’s autonomy (and does depend upon an understanding of her intentions) but this does not make the harm merely sub­ jective. Similarly, a failure to recognise the harm because sex and birth are natural processes is insulting because it fails to recognise women as persons of equal worth, with intentions and goals that must be respected. In other words, Hampton’s position allows us to avoid confusing women’s intentions and goals (which are subjective) with the objective harm that arises when these are over­ ridden, either intentionally or negligently. These cases also illustrate the courts’ ambiguity regarding women’s changing position in society that is relevant to the issues of subordination and self-worth. Childcare used to be viewed as something that was carried out by virtue of women’s natural status (a pre-modern role). Just as, in modernity, workers have challenged the idea that they can be defined according to the social posi­ tion into which they are born, women have challenged this “natural role,” such that it can now be compared with a job or life style choice. Unfortunately, if women want to have childcare recognised as work then it becomes viewed as something with value that can be commodified. The corollary of this is a switch from women’s status as being defined by nature to a view of them as selfowning (possessive) individuals, to be discussed in the section on individualism. One potential way out of this impasse (in which mothers are either defined in terms of a natural subordinate status – akin to feudal workers – or as owners of their ability to work that can be alienated – akin to workers in capitalism) is to argue for a Kantian view of personhood. This example illustrates both the usefulness and problems with Kant. The useful move is to view persons as of equal worth. The problem lies in Kant’s difficulty in dealing with the way in which dependency as a result of poverty or women’s subordination (which is viewed as part of the sensible world) can affect moral reasoning in the intelligible realm. Kant fails to recognise the problems that he creates by situating moral reasoning in the intelligible realm such that it is necessary to abstract oneself from one’s circumstances to obey the categorical imperative (see Seidler 1986). I will expand upon this problem below.

7

McFarlane v. Tayside Health Authority [2000] 2 A.C. 59; Rees v. Darlington Memorial N.H.S. Trust [2004] 1 A.C. 309.

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In contrast with Kant, Hampton recognises the way in which subordination can affect one’s ability to make moral judgements. To use a further example that draws together her feminist contractarianism with her other work, her position problematises the idea that we should condone others’ treatment of ourselves that implies a lack of respect. In Forgiveness and Mercy, Hampton (Murphy and Hampton 1988) considers the example of a wife who is treated rudely by her father-in-law but who is asked to ignore this treatment by her husband for the sake of family peace. It is an example that resonates with Amy and with ideals of the ethic of care, with its emphasis upon holding together human relationships. Hampton argues that, while it may be appropriate to do so on occasion, there is a price to be paid because such treatment assumes that the woman is of lesser worth. She is not being treated as a person and may come to experience herself as diminished as a result of accepting such treat­ ment, especially if this occurs over a period of time.

Dependency, Gratitude, and Respect Hampton is clear that the test only applies in situations where there is a possi­ bility of reciprocity, such as husband and wife. She points out that the sick and children clearly do not show lack of respect by their failure to reciprocate when they are unable to do so. As they become more independent by growing or recovering from illness then they should reciprocate or at least recognise what has been done for them. Hampton’s test does not, therefore, deal with the position of dependency workers (who care for others who are too sick or young to reciprocate). There has been some compelling work on the way in which dependency workers should be more central to any theory of justice, given that everyone is at some time a dependant (Kittay 1997). Hampton can be viewed as attempting to do so by considering when a domestic relationship, rather than the dependency element, is to be considered unjust. She is aware that while the dependant may be behaving justly, the social structure that results in an extra burden of care-work may not be just. Hobbes and Kant consider the position of dependency differently. For Hobbes (1994, 128), children are viewed as impliedly contracting, with whoever protects and raises them, that they should not turn against their protector when they become adults. The children’s position is like that of slaves whose lives have been saved by another party. The Hobbesian social contract rests upon the assumption that contracts made under threat of death are still valid. This is required for consistency given that it represents the position of the parties to the hypothetical social contract. As Hobbes ([1651/1668] 1994, ch. xx, para. 4) recognises that, in the state of nature, only women could possibly identify the father of a child, he therefore acknowledges the mother’s right to dominion over the child that she raises. Kant ([1797] 1964) discusses gratitude and dependency in the Doctrine of Virtue. Seidler (1986) argues that it is in this work that he comes closest to

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recognising that there is a problem with the split between intelligible and sen­ sible realms. Morality depends upon the ability to reason in the intelligible realm and is supposedly unaffected by conditions in the sensible realm. How­ ever, Kant recognises that poverty (and relationships of dependency) can pro­ duce a situation in which there is mastery over others. This undermines the subordinates’ ability to think for themselves. Hampton attempts to deal with this problem by her injection of Hobbesianism into the test. While she avoids the pitfalls of having a sensible/intelligible split, she relies upon the move of abstracting from the current situation to think about the possibility of a fairer situation, and also maintains some split between a reasonable course of action and one governed by emotional ties. Sample (2002) also raises the question as to whether care work should be viewed as a burden to be distributed (which is the view from the justice per­ spective) or as a moral activity that has value as such (reflecting a care per­ spective). From the position of the ethic of care, to call for the redistribution of caring appears to mean the redistribution of a virtue as if it were a non-moral good. In contrast, she argues, Hampton’s use of the test is more compelling for liberals because she does not ask that the state impose a view of the good but that it should recognise the unfairness of the current distribution of “care­ work.” This is a useful characterisation of the position, although it is not only liberals who are anxious about the position of Amy. I would go further and argue that injustice within the family is particularly problematic because it means that children are raised to identify with a particular status rather than recognise all persons as having equal self-worth. This applies to other areas of oppression, such as class and race as well as gender. There is also an aspect of class that is ignored in asking whether care-work is a burden or moral activity. The term “care-work” involves different experiences if you are taking a few hours off stimulating paid work to be with children compared with the drudgery of an underpaid care-worker in an institution.

Is Hampton’s Feminist Contractarianism Too Individualistic? Pateman (1985; 1988; 2002) has been a compelling critic of the way in which parties to a contract have been envisaged historically. Her exploration of why such a revolutionary idea as a social contract (in which everyone has to consent to being ruled) could be turned into a means of subordinating people is based upon her analysis of the contracting individual. In the area of employment relationships, she draws upon Marx to argue that the contracting party is viewed as a self-owning (or “possessive”) individual who is viewed as owning property in her/his person, which can be alienated. As our abilities cannot really be separated from the individual, this legal fiction actually means that workers turn up and obey. Whereas many have viewed the marriage contract as akin to feudal status, Pateman (1988) argues that the problem is similar, in that the contract is one in which what is supposedly alienated cannot be separated from

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the body. Hence, the traditional marriage contract was actually a contract to obey, evolving alongside and (through the welfare state) interdependent with the employment contract. While Pateman (1996, 204) places this traditional marriage contract as occurring between 1840 and 1970, she argues that it must be understood to clarify current renegotiations of the work/life balance. Pateman can be understood as answering the question: why does Amy accept unequal costs and benefits in a heterosexual family? The “pre-modern” answer is that she views herself in terms of a different status (or born to be a mother at any cost). The “modern” view is that she views this work as akin to a com­ modity to be exchanged and is trying to get the best deal from her partner, which unfortunately is difficult if childcare is not valued. This image of the self-owning or possessive individual is linked with that of Hobbes’s pre-social individuals (Macpherson 1962; Pateman 1988; 2002). In contrast, Kant has a more complex view of selfhood, in which there is the phenomenal (sensible) self, noumenal (intelligible) self (or personhood) and the transcendental self. Battersby (1998) has illustrated the way in which his meta­ physics, despite its claim of neutrality, does not take the position of women as the norm. Turning to moral theory rather than metaphysics, writers from both the areas of the ethics of care and communitarians have attacked the image of selfsufficient individuals who enter into a contract. Brennan (1999) has pointed out that it is important for feminists to distinguish between the embedded self of communitarianism (in which one’s community constitutes “who you are” in a strong sense) and feminist views of the “relational self.” To illustrate this, she cites MacIntyre: We all approach our own circumstances as bearers of a particular social identity. I am someone’s son or daughter; someone else’s cousin or uncle; I am a citizen of this or that city, a member of this guild or that profession; I belong to this clan, that tribe, this nation. Hence, what is good for me has to be what is good for someone who occupies these roles. (MacIntyre 1981, 204–05) This quotation illustrates how problematic this position is for women who are too often defined only with respect to others and whose interests often differ from those of their “clan, tribe or nation.” In contrast, Brennan argues that feminists concerned with thinking about a relational self differ from commu­ nitarians in two important respects: they rely upon an ability to be critical of past relationships; and, second, such relationships include chosen relationships rather than those into which we are born. Hampton’s test does aim to provide a critical tool for such an evaluation of relationships. As I have argued above, her concern with the “diminishment” that may occur by condoning harm should be employed to think about her article on feminist contractarianism. She describes what happens in a

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relationship if Amy allows her partner to treat her as of lesser worth than a person. While this is not discussed, for me, this brings out the importance of temporality; an idea that “who we are” (the production of both self and other) is something that is carved out over time by the habits (and ways that we relate towards each other) that produce a way of life. This raises issues about our responsibility to ourselves for our own character development. The idea of responsibility to ourselves is a difficult area because it is necessary to avoid the pitfalls of blaming the victim for damaging circumstances not of her own making; of ignoring the social context of sexism, racism and homophobia. This involves a recognition that, while we cannot fully abstract ourselves from our circumstances, we are not passive victims of them either. In this area, Card (2010) has considered the idea of moral luck but unlike Williams (1981) has focused upon the “constitutive moral luck” (i.e. that moral luck that is con­ stitutive of one’s character) of those who start from different positions of oppression within society. The aim is to think through the implications of nei­ ther being a completely embedded passive victim nor of being able to abstract oneself from one’s circumstances at will in the way that Kant envisages. I have stated that one way in which to envisage Hampton’s test is in terms of consciousness-raising in a group or as part of a political debate that points to the injustice of a particular type of relationship. If it is viewed in this way then it is compatible with an image of the self as emerging from (but not entirely determined by) relationships with others. This takes Hampton’s work closer to the work of Cornell (1995) who also draws upon Kant’s argument (that legislation can be viewed as just only if it is such that everyone as free and equal persons could agree to it). Instead of applying this to test relationships, Cornell continues to use it to assess the justice of legal cases and statutes. She does this by continuing to ask, with regard to each decision, “could free and equal persons agree to this?” Cornell’s conception of personhood, as a moral and political concept, draws from Kant but her view of the self has a debt to Lacan and evokes a more anti-humanist image of some­ thing that emerges over time. This is also compatible with Hampton’s test itself but not with her actual view of selfhood. Hampton has rejected the argument that it is inherent in the liberal position to fail to be aware of the relational nature of selves but rightly precludes the view that we are so embedded within oppressive relationships that change is impossible. She relies upon the argument that it is compatible with this aware­ ness of our selves as relational to argue that the state should still respect indi­ vidual rights rather than subsume women’s position within a community, whose traditions are likely to be sexist. As a feminist, she is forced beyond a standard liberal position to argue that the state must act to avoid the way in which domination can occur in the social/economic sphere as well as by the state (for example Hampton 1997b, 191). So, her use of the idea of equal per­ sonhood is not ontological but political. Controversially, the way in which change can occur is through an ability to abstract ourselves from our situation

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by the use of a thought experiment (derived from Kant), to be discussed in the next section.

Do Arguments against Abstraction Hit Their Target? There has been a wide-ranging debate about the usefulness of contract that has occurred in the wake of Rawls’ A Theory of Justice. It is clear that some of these arguments will not apply to Hampton’s test in that she does not try to produce principles of justice from her contractarian move. Her position is more like that of Cornell in that she produces a test that is to be repeated rather than viewed as the source of fixed principles. Nevertheless, some criticisms of Rawls do apply as she employs the device of contract to abstract from a particular situation, leaving behind considerations of affective ties. Linked with this move, she makes an appeal to what is “reasonable” – a loaded term in fem­ inist legal studies because of its associations with the substitution of a male perspective hiding behind a cloak of neutrality within appeals to the reason­ able person test in tort (Conaghan and Mansell 1999, 52–53). I will consider the criticism that contractarians abstract their individuals from their social context, thereby inserting their own view of what it is to be a person into their hypothetical contracts, and will end by looking at the issue of reason­ ableness. As Hampton’s test owes a debt to both Hobbes and Kant I will start by considering how this abstraction occurs in their work before turning to Hampton’s test. As discussed above, Macpherson (1962) and Pateman (1985; 1988; 2002) have both argued that the pre-social individuals who inhabit the Hobbesian state of nature are “possessive individuals.” For Pateman (1970; 2002), the legal fiction that allows the “renting of persons” is at odds with participative democracy because workers (particularly those in more menial positions) do not acquire the skills and confidence necessary to have their voices heard in any area of life. Hampton does not deal with this argument save to say that a painter who is paid and treated politely is treated with respect as a person (Hampton [1992] 2018, 354). This is a weak argument because it fails to consider the social and economic structures that may lead to such polite relations being exploitative. Hampton is better at recognising problems with social and economic structures that are reflected in Amy’s response to questions about morality. Such moral philosophy itself can be viewed as useful but limited. It appears to be the tip of the iceberg, requiring political analysis to explain its subjects. This is why, as discussed above, it should be situated as part of a public analysis rather than a test aimed at the individual. Seidler (1986) makes a similar move to Macpherson in his compelling exploration of the implications of the way in which the Kantian self is split between the intellectual realm of reason and the sensible realm. He draws out the consequences of a view of morality in which everyone is supposed to be able to be equally moral irrespective of his or her social circumstances (or

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“constitutive moral luck”) and that our emotions should be ignored as we abstract ourselves from our social situation in order to act morally. Hampton’s thought experiment does not involve a complete abstraction of her person from her social context. Her test states: Given the fact that we are in this relationship, could both of us reasonably accept the distribution of costs and benefits (that is, the costs and benefits that are not themselves side effects of any affective or duty based tie between us) if we were the subject of an informed, unforced agreement in which we think of ourselves as motivated solely by self-interest? (Hampton [1992] 2018, 351) What are excluded from the contract in Hampton’s test are the costs and ben­ efits of any affective or duty based tie. We are assumed to have emotions because the test is predicated upon the idea that we can be exploited as a result of this fact. As discussed above, Hampton disrupts Kant’s position by situating “duty” on the side of emotions (and viewing it as unreasonable). She does continue to view emotions as potentially problematic, but only when they become a source of exploitation. As she is clear that there is no love without respect then failing the test would mean, not only that there was exploitation, but also that there was no reciprocation of affection. Sample (2002, 269) asks why the benefits that are associated with emotional ties should be ruled out of consideration in Hampton’s test. She points to the position of women who raise children with an ungrateful and unhelpful partner but who would not trade this for a situation in which they did not have a family life. Her argument is (rightly) that such choices are not irrational but she goes on to say that it appears odd that Hampton excludes them. Contra Sample, I think that this is exactly the situation that Hampton’s test is designed to consider. It does not assume that we separate emotions from reason in life, as discussed above. In the case Sample cites, the test illustrates that exploitation is occurring but that the woman does not feel that there are any alternatives, at that time, because of social and economic structures. To argue that the test will not help because “Hampton’s test would demand the virtual abolition of the family” (Sample 2002, 272) on the grounds that almost all would fail the test is depressing but does not render the test invalid. An alternative reading is that families are generally unjust institutions (see Okin 1989). Sample (2002, 276) recognises this by considering how exploitation can occur despite the fact that Amy may rationally view the relationship as in her best interests. Sample’s analysis is useful in that it does not rely upon any notion of false consciousness. If, as a result of socialisation, Amy wants a het­ erosexual family life (and if her potential partners have all been socialised to be selfish like Jake) then this is both her favoured option and exploitative. This point is compatible with Hampton’s test, which should prompt political action rather than individual moral enquiry. The use of group action to change the

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options within the game is not considered in Sample’s game theoretic analysis. However, political action by women does accord with Hobbes’ willingness to view individuals as rational enough to go for long-term strategies at the expense of short-term solutions. Hampton’s test appeals to reasonableness. As mentioned above, this term is problematic in feminist legal theory because judges have claimed to be speaking for the (universal) reasonable person while imposing their own (particular) perspective. Hence a male judge’s view of acceptable behaviour in a sexual harassment case, for example, is smuggled in using a supposedly universal test of what is reasonable. Hampton expresses a different concern (from moral philosophy) that the term is merely employed as a euphemism for a writer’s moral intuitions or feelings without supporting argument. She distinguishes her use of the term by claiming that it is used to acknowledge the following facts: first, that there is no easy formula to decide how costs and burdens should be distributed, given that equality in all situations is not really feasible or neces­ sary to avoid exploitation; and second that there is actually a right and wrong answer to the question (Hampton [1992] 2018, 361). In using the term “reasonable” Hampton makes the same Kantian move as Cornell (Cornell 1995, 13–17). Under the title “In Defence of Reasonableness” Cornell states the theoretical basis for her later legal arguments, which is Kant’s view that we should be treated “as if” we were persons: I also defend the idea of reasonableness and public reason. Reasonableness and public reason depend upon the demand of the “as if” itself. Judges and legislators are called upon to proceed through the “as if” because this is a test for the rightfulness of the law consistent with the evaluation of each one of us as free and equal. (Cornell 1995, 13) Hampton’s appeal to reasonableness is therefore an attempt to evoke a critical examination of Amy’s position. Her test is to be employed to gain critical dis­ tance from a sexist social context by concentrating upon the equal worth of persons. This is in contrast with a Hobbesian move (employed by Gauthier and discussed by Sample) in which comparison would be with other available out­ comes in order to maximise utility. Another legal example can illustrate the argument. This could be understood as analogous to the situation in which all employers have the same view as to what should constitute (cheap) health and safety procedures. These are the options available but the evocation of what is reasonable looks to the possibility of options that are not on offer. The com­ parison required by Hampton’s test is not concerned with maximising utility in existing relationships but with an objective idea as to what is fair, based upon the Kantian view of the equal worth of persons. It is this analysis of what is fair that is potentially useful in Hampton’s analysis. Such a test highlights failures that then take Hampton beyond her liberal analysis.

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Bibliography Adorno, Theodor W., and Max Horkheimer. 1944. 1979. Dialectic of Enlightenment. Translated by John Cumming. London: Verso. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Brennan, Samantha. 1999. “Recent Work in Feminist Ethics.” Ethics 109 (4): 858–893. Bufacchi, Vittorio. 2000. “The Enlightenment, Contractualism and the Moral Polity.” In The Enlightenment and Modernity, edited by Norman Geras and Robert Wokler, 204–224. Basingstoke: Macmillan. Card, Claudia. 2010. The Unnatural Lottery: Character and Moral Luck. Philadelphia PA: Temple University Press. Conaghan, Joanne, and Wade Mansell. 1999. The Wrongs of Tort. 2nd ed. Law and Social Theory. London: Pluto Press. Cornell, Drucilla. 1995. The Imaginary Domain: Abortion, Pornography and Sexual Harassment. London: Routledge. Foucault, Michel. 1975. 1977. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. London: Allen Lane. Gauthier, David P. 1987. Morals by Agreement. New ed. Oxford: Clarendon Press. Gilligan, Carol. 1982. In a Different Voice Psychological Theory and Women’s Devel­ opment. Cambridge MA: Harvard University Press. Hampton, Jean. 1991. “A New Theory of Retribution.” In Liability and Responsibility: Essays in Law and Morals, edited by Raymond Gillespie Frey and Christopher W. Morris, 377–414. Cambridge: Cambridge University Press. Hampton, Jean. 1992. 2018. “Feminist Contractarianism.” In A Mind of One’s Own: Feminist Essays on Reason and Objectivity, edited by Louise M. Antony and Char­ lotte Witt, 2nd ed., 337–368. New York: Routledge. Hampton, Jean. 1997a. “The Wisdom of the Egoist: The Moral and Political Implica­ tions of Valuing the Self.” Social Philosophy and Policy 14: 21–51. Hampton, Jean. 1997b. Political Philosophy. Dimensions of Philosophy. Boulder CO: Westview Press. Hampton, Jean. 1998. The Authority of Reason. Cambridge: Cambridge University Press. Hampton, Jean, and Andrew Pyle. 1999. “Jean Hampton.” In Key Philosophers in Con­ versation, 231–239. London: Routledge. Hobbes, Thomas. 1651/1668. 1994. Leviathan: With Selected Variants from the Latin Edition of 1668. Edited by Edwin Curley. Indianapolis: Hackett. Kant, Immanuel. 1797. 1964. The Doctrine of Virtue: Part 2 of the “Metaphysic of Morals …” Translated by Mary J. McGregor. New York: Harper & Row. Kant, Immanuel. 1787. 1965. Critique of Pure Reason. Translated by Norman Kemp Smith. Unabridged ed. New York: St. Martin’s Press. Kant, Immanuel. 1793. 1970. “On the Common Saying: ‘This May Be True in Theory but It Does Not Apply in Practice.’” In Kant: Political Writings, edited by Hans Reiss, translated by Hugh Barr Nisbet. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press. Kittay, Eva Feder. 1997. “Human Dependency and Rawlsian Equality.” In Feminists Rethink The Self, edited by Diana Tietjens Meyers, 219–266. Boulder CO: Westview Press. MacIntyre, Alasdair C. 1981. After Virtue: A Study in Moral Theory. London: Duckworth.

122 Section 2 Macpherson, Crawford Brough. 1962. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford: Clarendon Press. Murphy, Jeffrie G., and Jean Hampton, eds. 1988. Forgiveness and Mercy. Cambridge: Cambridge University Press. Okin, Susan Moller. 1989. Justice, Gender, and the Family. New York: Basic Books. Pateman, Carole. 1970. Participation and Democratic Theory. Cambridge: Cambridge University Press. Pateman, Carole. 1985. The Problem of Political Obligation: A Critique of Liberal Theory. New ed. Berkeley: University of California Press. Pateman, Carole. 1988. The Sexual Contract. Cambridge: Polity Press. Pateman, Carole. 1996. “A Comment on Johnson’s ‘Does Capitalism Really Need Patriarchy.’” Women’s Studies International Forum 19 (3): 203–205. https://doi.org/10. 1016/0277-5395(96)00012-X. Pateman, Carole. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts.” The Journal of Political Philosophy 10 (1): 20–53. https://doi. org/10.1111/1467-9760.00141. Rawls, John. 1971. 1973. A Theory of Justice. Oxford: Oxford University Press. Richardson, Janice. 2004a. “Feminist Perspectives on the Law of Tort and the Technology of Risk.” Economy and Society 33 (1): 98–120. https://doi.org/10.1080/0141987042000177306. Richardson, Janice. 2004b. Selves, Persons, Individuals: Philosophical Perspectives on Women and Legal Obligations. Aldershot: Ashgate. Sample, Ruth J. 2002. “Why Feminist Contractarianism?” Journal of Social Philosophy 33 (2): 257–281. Seidler, Victor J. 1986. Kant, Respect and Injustice: The Limits of Liberal Moral Theory. London: Routledge & Kegan Paul. Williams, Bernard. 1981. Moral Luck: Philosophical Papers 1973–1980. Cambridge: Cambridge University Press.

Chapter 7

Hobbes’ Frontispiece Authorship, Subordination, and Contract

In this chapter, I argue that the famous image on Hobbes’ frontispiece of Leviathan provides a more honest picture of authority and of contract than is provided by today’s liberal images of free and equal persons, who are pictured as sitting round a negotiating table making a decision as to the principles on which to base laws. Importantly, in the seventeenth century, at the start of modern political thought, Hobbes saw no contradiction between contractual agreement and subordination. I will draw out these arguments by comparing three images of politics that employ the human body: Hobbes’ frontispiece is compared first with an earlier picture of the state, the illustration of the Fable of the Belly, and then with a later Rawlsian image of the social contract described above. At stake is Hobbes’ view of two associated concepts: author­ ship and authority. I argue that Hobbes’ image is a vivid portrayal of a “per­ sona covert,” akin to the feme covert, a wife characterised in common law as so dominated by her husband that she is imagined as being “covered” by his body.1

Introduction In Hobbes’ frontispiece the sovereign’s enormous body covers his subjects, who are contained within the boundaries of his body. While some interpretations of this image view the Leviathan’s subjects as part of the Leviathan’s armour (Kristiansson and Tralau 2014), I am interested in it as a stark depiction of domination so great, that it is envisaged as one body that can absorb others. As I will discuss, this imaginary depiction of domination is ironic for a couple of reasons. First, the only actual instance of (potential) human bodies within other human bodies is based upon a placental economy. This point is associated with 1

Reprinted by permission from Springer Nature Customer Service Centre GmbH: Springer Law and Critique, “Hobbes’ Frontispiece: Authorship, Subordination and Contract,” Janice Richardson, 2015: https://www.springer.com/journal/10691. Thanks also to Justin Clemens for inviting me to Melbourne University’s Con­ ference on Genre, Affect and Authority in Early Modern Europe, where I started to discuss the frontispiece of Leviathan. DOI: 10.4324/9780429329678-9

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the invisibility of women’s bodies, given that the question of whether women’s bodies are depicted within the frontispiece itself (and its implications) has been neglected. Second, the subjects shown in the frontispiece are positioned as authors of the social contract. As I will discuss in the section on authorship, Hobbes positions them as authoring law that would actually allow their books to be banned in practice. In contrast with these reversals, the containment of the subjects’ bodies within the sovereign does illustrate the ability of the state to prevent them from leaving. By analogy with femes covert, married women who historically under common law could be restrained from leaving their husbands’ homes, they are personae covert. Today, as the state weakens in the face of international capital, the increase in the walled state can be an attempt to symbolise (ineffective) state power to exclude others, see Brown (1980). Turning to the importance of the frontispiece, there have been a number of arguments as to why an examination of Hobbes’ frontispiece for Leviathan is not merely incidental to the text. For example. Brown (1978) argues that nobody but Hobbes would have the knowledge of his unpublished text to be able to illustrate its arguments in such detail. Skinner (2008) argues that Hobbes’ use of this image showed him to be a faithful follower of a literary genre in which the central theme of a book was illustrated with such a specta­ cular emblematic frontispiece. Hobbes had access to books within this genre at Hardwick Hall and had illustrated an earlier work, his translation of Thucy­ dides in 1629, in such a manner. When Hobbes was writing Leviathan, pub­ lished in 1651, the interest between matching word and image was “a deep preoccupation of humanist culture” (Skinner 2008, 7). Skinner attributes this preoccupation mainly to the influence of the Roman writer on rhetoric, Quintilian (1891), who argued that the most effective way of moving an audience was to provide a picture of what to hold in their minds. While Quintilian was mainly interested in verbal images, this approach prompted a concern to capture an idea in a visual image. Hence, Skinner argues that this accounted for the overwhelming popularity of the new genre of emblem books in the late sixteenth century and that Hobbes’ frontispiece con­ tinued this genre. The frontispiece was an important sub-genre of emblem books, as a threshold and theatricalisation of the work (Goodrich 2013, 56).2 In this context, it should be noted that Hobbes translated Aristotle’s Rhetoric (Aristotle 1857) in which Aristotle emphasises enargeia, the oratorical virtue of vividness; of being able to describe an event in such detail as to bring the sub­ ject to life. For Aristotle, this is important in legal argument such that jurors can actually visualise the facts of a case. In “Thomas Hobbes’s Visual Strategies,” Bredekamp (2007) argues for the importance of Hobbes’ optical theory for Hobbes’ emphasis upon images. Hobbes describes the way in which vision comes about “through the action of a shining or illuminated object, and that action is a local motion caused by a 2

My thanks to my anonymous referee for this point.

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continual pressing of the medium from the object to the eye” (Hobbes 1994a; cited in Bredekamp 2007, 52). Bredekamp associates Hobbes’ view of the pres­ sure of the object upon the eye with politics that “is enacted through pressure exerted in space-time, producing the images that people everywhere encounter” (Bredekamp 2007, 30). My resources for thinking about the relationship between such pictures and our political analysis are not drawn from Hobbes but from a writer who was influenced by – but radically reworked – his thought: Spinoza. For Spinoza, the images in our imagination still have an effect upon us and still engage our emotions even after we achieve a better understanding of the image (Spinoza 1991). I will not analyse Spinoza’s position more generally, but this way of thinking about the association between imagination and reason supports Quintilian’s (1891) position.

Hobbes’ Frontispiece Hobbes provides an evocative picture of authority: that of a gigantic crowned sovereign, who looms over the landscape holding a sword in his right hand and crozier in his left, uniting earthly power and the power of the Church respec­ tively. Above the sovereign, in Latin, is a quotation from Job: “There is no power on earth to be compared to him.” The sword illustrates Hobbes’ claim that “covenants without the sword are but words” (Hobbes [1651/1668] 1994, ch. XVII, para. 2); that where laws fail, the sovereign’s sword must be used to enforce them. There has been speculation that the fact that the sword is in the sovereign’s right hand gives it priority over the crozier, with the implication that the spiritual is subordinated to temporal power (Manow 2010; citing Münkler 1994). The lower part of the frontispiece continues the theme of the sovereign as holder of both secular and ecclesiastical power by juxtaposing profane images on the left, below the sword, with their equivalent sacred images opposite them, below the crozier. On the left are depicted different squares containing (from the top): a castle. royal crown, a cannon firing, rifles and spears, and a battle; and, on the right and running parallel, their sacred equivalents are: a church, mitre, a lightening bolt symbolising excommunication, instruments of debate, and finally the portrayal of the court of inquisition, as a field of ecclesiastical disputation (for this final point see Bredekamp 2007, 32). Between these pictures is a landscape – overlooked and dominated by the sovereign – within which there is a city with houses, a fortress and church. The streets are empty although to their left are some figures that are engaged in battle. There exist different versions of this frontispiece by Parisian engraver Abra­ ham Bosse in collaboration with Hobbes: one, sketched by hand, was presented with the manuscript to Charles II in exile (Bredekamp 2007). Brown (1978) suggests that this earlier version was sketched by Wenceslas Hollar and argues that the face of the sovereign appears similar to Charles II’s face. The subjects,

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who are contained within his body, are represented by only their different skulllike faces facing outwards. The second version is more familiar, as it is on the front of many editions today. In this, the sovereign’s subjects are represented as whole individuals, with bodies, looking inwards, with their backs to the viewer. Some are kneeling and others standing. Brown (1978) argues that any inter­ pretation should prioritise the early version, with the faces looking outwards, both because it predates the other and, importantly, because Hobbes presented it to Charles II in exile. There have been a number of recent analyses of many aspects of this fron­ tispiece including interpretations of: the empty city with only a few figures to the left of the city street who appear to be in battle, employed as part of an argument that the city is at war (Kristiansson and Tralau 2014); the quotation from Job, who is positioned as a symbol of obedience, which, it is argued, illustrates the way in which the image depends upon a secularised Christianity (Östman 2012); and whether the individuals who appear within the boundary of the Leviathan’s body could be viewed as constituting his armour, in keeping with pictures of Gods in Armour, discussed by Kantorowicz (1997) and Kris­ tiansson and Tralau (2014). Recent analyses have also included arguments about the lower half of the Leviathan that is hidden behind the countryside in the image. One interpretation suggests that this part is the tail of the sea mon­ ster Leviathan, whose tail can be seen as tiny lines on the image (Kristiansson and Tralau 2014). Curiously, despite this attention to the minutiae of the image, no writer seems to have discussed in detail the sex of the figures contained within the Leviathan’s body and the implications of their sex. Much of the lit­ erature implies that these figures include women, if I may be so bold as to assume that today women are to be classed as natural persons, individuals, subjects or human beings. To take a few examples, the subjects contained in the sovereign’s body in the popular edition are referred to as: “natural persons” (Skinner 2008, 388), “individuals” (Goldsmith 1981, 234), “subjects” (Malcolm 2002, 201), “three hundred persons” and “densely packed human beings” (Bredekamp 2007, 38), a “crowd of people” and, with regard to the earlier manuscript, “tightly packed human faces” (K. Brown 1980, 213). Manow (2010) cites Bredekamp’s (2007) reference to three judges in the upper left arm and warriors in the right arm with the torso filled with “figures.” Justin Champion (2010) refers to “men and women.” Many figures are clearly men but it is not clear to me from the images (in either edition) whether women are included or not. The skull-like faces of the manuscript are ambiguous as to sex and, although the backs of the figures appear to be mainly men in the popular edition, each is unique, with some fig­ ures of different heights and wearing different hats who could be women.3 3

See the enlarged image from Kristiansson and Tralau (2014, 308); detail of earlier manuscript, detailing faces: www.pbase.com/hobbes/image/151739123.

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However, many wear hats of office that were only open to men. My argument does not depend upon any empirical claim as to whether or not women are depicted in these images. The text is also ambiguous. It could be argued that Hobbes’ introduction to Leviathan refers to the Leviathan as an automaton created and composed of “man” yet this is again unclear because “man” is often used as a generic term that includes women. This common usage of the term “man” as standing in for “mankind” is politically problematic for women, who are positioned as a “special case” and whose inclusion as citizens is trivialised. This language usage has its corollary in practical politics. For example, when all male adults were able to vote, the term employed was “universal suffrage” but when women later achieved the vote it was classified as a special case (Nagl-Docekal 2004). The question of whether women were included in the social contract pro­ duces a dilemma because there is an argument that they were equal in the state of nature and yet once in civil society they lacked legal personality (see Pateman 1988). (See also Chapters 5 and 8 for more detailed analyses on Carole Pate­ man’s work.) Given that the frontispiece is of civil society, it is likely (though unclear) that women are excluded and yet this question has not, to my knowl­ edge, been asked. The question of the position of women in the frontispiece draws attention to the ambiguity that Pateman (1988) highlights regarding an inconsistency in Hobbes’ story of the social contract: why should women, assumed to be equal in a state of nature, agree to join a social contract as sub­ ordinate? To consider these points in turn: Hobbes’ does not claim that there is sex inequality in a state of nature, such that men could agree to the contact on behalf of women or that women are already subordinate. When discussing which parent gets dominion of a child, for example, he concludes that: There is not always that difference of strength or prudence between the man and the woman as that right can be determined without war. (Hobbes [1651/1668] 1994, pt. I, ch. XX, para. 4) This claim is supported by the fact that there are no laws and hence no mar­ riage laws in a Hobbesian state of nature that would allow men to contract on behalf of women (Pateman 1988). Hobbes states that a sovereign can be female (Hobbes [1651/1668] 1994, pt. I, ch. XX, para. 4; [1651/1668] 1994, pt. IV, ch. XLVII, para. 20). While the sovereign may be portrayed as male (as there is only one Leviathan in the picture, who is also described by Hobbes as artificial, monstrous, and a Mortal God) the same is not true of the subjects who are contained within his body. It would also make sense for academics to have been prompted into discuss­ ing the sex of these subjects in the frontispiece when analysing the reasons why the city is almost empty. If women are not included in the figures within the Leviathan (as they lack legal personality in civil society) then where are they? Are all the women assumed to be in the homes, with none on the deserted

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street, or are they simply to be dismissed as not considered by Hobbes as an important part of the story? This appears a weak claim, given Hobbes argu­ ments against women’s natural subordination in Chapter XX. One answer would be that they are in the sovereign’s body but hidden, having been already been “covered” (or represented) by the men’s bodies. Hence men are already personae covert (with regard to the sovereign as depicted in the frontispiece) but women are doubly so, being contained both within the husband’s body and in turn that of the Leviathan in the frontispiece. This fits within a tradition in which the husband was viewed as ruler of household. Selden (1614; cited in Goodrich 2013, 148) referred to the “husband and ruler as King.”4 It is also notable that we continue to live in a culture in which it is easy to be gender blind, in a manner that obscures power relations, even when an analysis of sex is prompted by a writer’s theoretical position. This is particularly telling in the context of a provocative paper by a psychotherapist (and political the­ orist) who employs a Freudian analysis to discuss the frontispiece of Leviathan in terms of submission to a greater whole (Jacobson 1998). I will now turn to this argument in detail because I think Jacobson is insightful about the frontis­ piece as a fantasy of absolute power – albeit that his arguments wrongly depo­ liticise Hobbes’ frontispiece. Worse, the conceptual framework he employs individualises subordination in a way that has the potential to lead to victimblaming. (For this reason it may be fortunate that he was gender-blind, as it will become obvious how women would be positioned as willing victims within this framework.) Instead of this being a fantasy of the oppressed, it is a fantasy of the powerful and their advocates; one that is never realised in practice. In contrast to analyses of the frontispiece, it is impossible to make subordinates invisible in reality. In an analysis of Hobbes (the man, rather than his arguments) Jacobson sees Hobbes’ frontispiece as depicting the idea that Hobbes could be so afraid of death that he would submit completely to the control of another powerful figure and protector. He is likened to a client Jacobson saw in his psychother­ apy practice. This total submission is symbolised as absorption by another’s body. Jacobson concludes that Hobbes sought safety from a thousand terrors not in the mouth of God, but in the mouth of the Sovereign. In Freudian terms, he experienced an overwhelming identification with something far greater and more powerful, and more threatening, than himself and sought incorporation within it. (Jacobson 1998, 11) 4

Goodrich (2013, 148) draws on Selden (1614) to argue that the husband is a lesser figure whose power is in imitation of the sovereign. Similarly, Agamben discusses “vicarious Dei” – employed by popes and sovereigns – in terms that are relevant to the idea of the husband having vicarious power (Agamben 2011, 138–39). Thanks to my referee for this last point.

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As I will explain below, I think that Jacobson makes an important point about our reaction to Hobbes’ frontispiece that portrays bodily incorporation by a “stronger” party. The “strength” of that party is socially constructed in Hobbes’ analysis, given that the relationship is created through contract and does not pre-exist it. Even though the idea that the sovereign has eaten his subjects whole does not fit strictly with the frontispiece’s image of individuals on the arms and chest of the Leviathan, it is a provocative idea. However, Jacobson’s focus upon a psychological urge to be dominated in the context of political theory is problematic. The fantasy of such total domination that involves absorbing the “weaker” into the “stronger” is one that Hobbes has in common with the later Blackstone. Blackstone famously employs this image when he states that in marriage “the man and woman are one and that one is the man” (Blackstone 1765, 442). The image is of a wife who is contained within the boundaries of her husband’s body just as the subjects in Hobbes’ frontispiece are subsumed within their sovereign. Contra Jacobson, this image of power portrayed in Hobbes’ frontispiece (and by Blackstone) does not stem from individual psychology of those positioned as subordinates. In these examples, this vivid picture is imagined by those who are sympathetic with the domination they wish to portray. Hobbes’ image of the bodily incorporation of the subjects into the Leviathan can therefore by likened to the position of femes covert in common law. This would mean that the (all male?) subjects in the frontispiece should be viewed as personae covert, raising the question: what is the public law equivalent of this role? This will be addressed below in the section on authorship and the limits of sovereign authority. These personae covert were viewed as equal with each other before the might of the sovereign, in a secularised version of arguments that all persons (men and women) were equal before God that appears in Locke.5 Jacobson’s view of domination can be compared with that of Stanton (2011), who points out, that if obedience is being exchanged for protection, then the protector must be viewed as strong enough to give such protection. Stanton draws a political rather than psychological conclusion: that for Hobbes there can be no sustained political action without a threat of sanction by an external entity and that the Leviathan replaces God in that role (Stanton 2011, 164). As mentioned in the introduction, a curious reversal occurs in this picture of domination that portrays one or more bodies that become subsumed into the 5

For the argument that equality of all under God was transformed to equality under one sovereign, see Stanton (2011, 164). He makes no specific reference to women but there is no evidence that they are excluded from his argument. This would be very unlikely because Locke argues against Filmer’s claim that women’s subordination is natural, albeit that Locke also states that if there is a conflict between husband and wife that the husband should win (Locke [1689] 1988, 30). See also Waldron (2002) and Poole (2004).

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one body of Leviathan, which is also an enactment of the birth of the sovereign and of civil society. This theoretical birth is the reverse of actual birth – the only physical occasion when one body becomes two or more. It is a fantasy about human bodies within human bodies – and of birth – from a philosophical tradition that fails to think philosophically about the material possibility (as opposed to the associated sentimentality) of this occurring. From this perspec­ tive, the frontispiece portrays the secularisation of another birth fantasy; that of Adam giving birth to Eve.6

Comparison of Hobbes’ Frontispiece with Illustrations of the Fable of the Belly The portrayal of authority within Hobbes’ frontispiece, in which he associates the state (and society) with the human body, illustrates the paradigm shift made by Hobbes at the start of early modem political thought. Within the earlier Fable of the Belly, from the sixth century BCE, the hands, mouth and teeth conspire to starve the belly, which they condemn as an idle scrounger. They become weakened as the body as a whole starves. The political message is clear: members of society (like parts of the body) should not rebel against those with greater wealth or power because society is an organic whole and they will therefore only hurt themselves as a result of their dissent. In Livy’s The Early History of Rome, Livy (1971) describes the way in which Menenius employs this fable to persuade the plebeians not to rebel. Hobbes’ frontispiece of the giant sovereign, whose body is composed of his subjects, appears similarly conservative. It is a very similar image in the way it portrays a social whole as a human body comprised of other bodies who are the subjects. So, at first glance it appears to convey a similar message. The English version of the Fable of the Belly by William Caxton in 1484 was illustrated by depicting a starving, half-naked male body. The later image by Wenceslaus Hollar for the book by John Ogilby (Ogilby and Aesop 1668) per­ sonifies parts of the body. Unlike the Hollar illustration of the Fable of the Belly, Hobbes’ image evokes a radically different relationship between these figures (or faces in the earlier frontispiece), along with a sense of their agency. It is these individuals who constitute the sovereign’s body in both senses of the term: they make up the figure of the sovereign in the frontispiece and are also the authors of the social contract that produces the sovereign’s fictional body. I will now turn to Hobbes’ definition and use of authorship and the way in which it is associated with both consent and subordination. Hobbes’ argument in Leviathan will be familiar. He starts by considering how individuals live in a state of nature, without laws and even without the 6

For an analysis of the way in which western philosophy has been obsessed with death but has not dealt conceptually with birth, see Chapters 1, 3, and 4 and Bat­ tersby (1998).

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society of others. As Macpherson (1962) showed, they have the characteristics we associate with those individuals who live in a competitive market society: acquisitive, selfish, individualistic and rational. It is their rationality and not their emotions (such as natural empathy as in Rousseau’s thought) that, for Hobbes, saves them from the horrors of the state of nature. Given Hobbes’ view of competition and the problem of vainglory, a state of war is inevitable for individuals in a state of nature and therefore life is famously “solitary, poor, nasty, brutish and short” (Hobbes [1651/1668] 1994, pt. I, ch. XII, para. 9). They cannot co-operate easily because it is irrational to perform part of any contract first, knowing that the other party could easily renege on the agree­ ment. Being rational, and the fodder of later game theorists, these individuals are able to recognise that – while it may be in their short term interests to cheat others – it is in their long term interests to have a society in which they can co­ operate. A sovereign armed with the sword, as illustrated, is needed to enforce contracts. These individuals therefore give up their freedom in the creation of both a social contract and the sovereign. This is a cautionary tale and not a claim as to how laws actually started. It serves as an argument against the sort of violence of the English Civil War. However, it is a cautionary tale that relies on an image of these individuals – who start as free and equal – that differs greatly from that other cautionary tale, the Fable of the Belly, which it initially resembles.

Temporality The differences between the images in the frontispiece and the Fable of the Belly can be explored by considering the way in which time plays out differently in each. The image employed in the Fable of the Belly marks a different origin and a different sense of time. It portrays subjects as body parts that must always have been part of that organic whole in order to be alive. In contrast, Hobbes’ theoretical shift is illustrated by the fact that the sovereign is portrayed as composed of individual human bodies (in the popular version) who could sur­ vive on their own, at least for a short length of time. They exist together through choice – although this “consent” of the subjugated party to this (and other) contracts is problematic (Pateman 1979; 1988). Importantly, Hobbes is clear that contract and subordination are compatible; that contracts in moder­ nity should not be assumed to be a symbol of mutual respect, a point vividly portrayed in the frontispiece. So, there is a time before the existence of the body politic (portrayed as human) in Hobbes’ frontispiece and this is not the case in relation to the image of the Fable of the Belly. Additionally, once the bodies exist, the effect of time upon them is conceived differently. In the Fable of the Belly, the effect of the rebellion of the hands, mouth, and teeth is to produce starvation. The whole state, symbolised as a human body, starts to degenerate as it starves to death. It is a mortal body and in some versions of the fable actually does die.

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In contrast, mortality is more complex in Hobbes’ frontispiece. The sover­ eign as image of the state is not born of many bodies – a rather grotesque image when considered literally, as Cavarero (2002) points out – and does not grow old. However, it can also grow weak and die as a result of rebellion. The sovereign’s body may be comprised of mortal individuals but was itself viewed as immortal by English jurists from Tudor times.7 As Kantorowicz (1997) explains, English jurists employed an image derived from the Christian idea of the two natures of Christ to create a legal fiction of the King’s two bodies. The argument that Hobbes’ frontispiece is a secularisation of a Christian theme raises a further issue about the temporality of this image in that it represents a point of transition, looking backwards to Christianity but forwards into mod­ ernity (see also Östman 2012).

Authorship The “covered” subjects within the Leviathan’s body in the frontispiece are often described as the authors of the social contract, which brings the Leviathan into being. In Chapter XVI of Leviathan, entitled “Of Persons, Authors and Things Personated,” Hobbes discusses authorship, particularly in the sub-section: “Actor, author and authority.” In discussing artificial persons, Hobbes sepa­ rates the actor (or representative) from the author of the representative’s actions. It is clear at this stage that the representative is later to be considered as the sovereign, albeit that the sovereign is not part of the social contract itself but is the creation of it. Hobbes is using the legal example of agency agreements to envisage how the state, while not being human, can be viewed as having the ability to act and to bind those on whose behalf its actions are taken. This discussion of a “representative” sounds more democratic than it turns out to be because the authors (those “covered” subjects in the frontispiece) who create their representative (the sovereign) are then bound by his (or her) actions as if they were their own, i.e. as if they were the authors of them. This is compatible with different types of government, Hobbes preferring monarchy to avoid division (Hobbes [1651/1668] 1994, pt. I, ch. XIX, para. 7). In Chapter XVI, Hobbes defines an author “as owner of the words and deeds,” which they have bestowed upon their representative: Of persons artificial, some have their words and actions owned by those whom they represent. And then the person is the actor, and he that owneth his words and actions, is the AUTHOR, in which case the actor acteth by authority. (Hobbes 1994a, pt. I, ch. XVI, para. 4) 7

The first report of this immortality is in Plowden’s Commentaries, collected and written under Queen Elizabeth I. The most famous case before the courts was The Case of the Duchy of Lancaster (1561).

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In the next section, Hobbes goes on to argue that acts by the actor/representa­ tive that are done with the authority of the author are therefore binding upon the author. He illustrates the relationship between the author and his or her representative in a manner that is akin to a legal agency agreement that we have today. Although Skinner (2008) refers to this as derived from Roman law, it does also appear within English common law, with which Hobbes was familiar, as illustrated by the posthumous publication of A Dialogue between a Philoso­ pher and a Student of the Common Law of England written between 1662 and 1675 and published in 1681 (Hobbes [1681] 1997). To illustrate Hobbes’ argu­ ment, imagine that I instruct a lawyer. These professionals tend to be indepen­ dent contractors rather than employees but are hired to perform certain jobs. I am viewed as the author of her acts (as Hobbes defines the term) because I have instructed a representative, who is acting in my name. Hobbes appears to have this in mind and rightly illustrates the position by claiming that my repre­ sentative can only take those actions that I have the power to take. As Hobbes explains, the agent/representative has “authority from them so far forth as is in their commission, but no further” (Hobbes 1994a, pt. I, ch. XVI, para. 4). A different example of an agreement to transfer agency is the power of attorney for someone labouring under a legal disability: either a child, someone who is mentally incapacitated or, historically in the West, a married woman, the feme covert, discussed above. However, in this case the term “author” is strained because it implies consent. Someone who is a very young child or who has a severe mental disability cannot consent. The de facto position of the femes covert is different – as is the case of some children and some persons classified as mentally ill in certain circumstances. The ways in which the con­ sent of the “weaker” party to a contract is imagined, whether the “weaker” party is the governed, traditionally married women or employees, is what is at issue here. Hobbes seems to have in mind a transfer of power to the sovereign, in the act of creating him or her, that is akin to an agency agreement in which the authors consent to the agreement. However, the extent of the transfer of powers is so much greater than agency agreements that it more closely resembles a power of attorney. In other words, in Chapter XVI, Hobbes manages to reverse the positions of authority between the parties. Recall, if I instruct a representative then my representative’s authority is limited to my instructions and she is clas­ sed as an independent contractor – akin to an employee save that she works on her own account. If I instructed a lawyer I would not expect her to start sud­ denly giving me orders. Nevertheless, Hobbes is using this relationship to envi­ sage the idea of the transfer of power that takes place as a result of the social contract. He therefore reverses the authority in the relationship itself by making the startling claim that having instructed someone as representative, it is not possible to stand in his way by disobeying him, save in certain limited circum­ stances, to be discussed below. The fact that the subjects’ authority as authors has been transferred to the sovereign is made plain when Hobbes states:

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Because every subject is by this institution author of all the actions, and judgments of the Sovereign instituted, it follows that, whatsoever he doth, it can be no injury to any of his subjects, nor ought he to be by any of them accused of injustice. For he that doth any thing by authority from another doth therein no injury to him by whose authority he acteth: but by this institution of a commonwealth every particular man is author of all the Sovereign doth; and consequently he that complaineth of injury from his Sovereign complaineth of that whereof he himself is author; and therefore ought not to accuse any man but himself; no nor himself of injury, because to do injury to oneself is impossible. (Hobbes [1651/1668] 1994, pt. I, ch. XVII, para. 6) At stake is a central political question: what does the creation of the social contract permit the sovereign to do in the name of these supposed “authors” of his or her acts? In other words, what is the position of the personae covert so vividly portrayed in Hobbes’ image of individuals subsumed within the body of the Leviathan? This question can be considered in terms of contract and applied more broadly than the relationship between individual and state: to what extent are the weaker parties to a contract bound to them? This raises the questions discussed by Pateman’s (1988) analysis of the relationship between the social contract, traditional marriage contracts and employment contracts, in which she illustrates her important argument that it is through contracts that sub­ ordination is managed in modernity. Pateman examines how these three con­ tracts are of a specific type, i.e. they involved the fictional exchange of property in the person that cannot in fact be removed from the body, such as obedience by personae covert in the social contract, consortium from the feme covert in the traditional marriage contract and (as Marx ([1867] 1976) makes plain) labour power by workers in the employment contract (see also Richardson 2007; 2009). Before examining Hobbes’ arguments regarding the limits of the sovereign over his or her subjects, I would just like to comment upon the structure of Hobbes’ argument in the quotation above. It basically states that you cannot legitimately complain about what a sovereign does because you are the author of his acts; that you agreed to his acts in their entirety when you agreed to the social contract. It is strikingly similar to the arguments that “justified” rape in marriage in England in Hobbes’ time that were only altered as a result of the common law case of R v R (1991).8 This legal argument claimed that married women could not complain if they were raped by their husbands because their husbands’ conjugal right to do so was an implied term in marriage contracts to which they had consented. As discussed above, the weaker parties’ “consent” produces a relationship in which they are pictured as completely subsumed within the dominant body. In this case, this picture of subordination of the 8

R v. R [1991] 3 WLR 767.

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body is associated with the actual bodily practice of rape. It was a social con­ struct that produced women’s subordination. In this context, Jacobson’s psy­ chotherapy that assumes an individual’s “will to subordination,” discussed above, is as politically problematic as it is familiar. As Hobbes makes clear with regard to both subjects and also specifically women, they become the “weaker” parties only as a result of this “agreement” and not before. However, the social contract and traditional marriage contract are distinct in the sense that Hobbes’ agency agreement (in Chapter XVI) is an explanation of political representation. The example of rape in marriage is not one of representation per se. However, the representation of wives by husbands occurs in another famous political picture, to be discussed below in the final section. In Rawls’ A Theory of Justice ([1971] 1999) the individuals who negotiate for principles of justice are supposedly ignorant as to their position in society, as a guarantee that they will decide fairly. However, they were also described as male “heads of the Family.” As such Rawls initially aimed to provide arguments for principles of justice while completely failing to register injustice in relation to gender (Okin 1989).

Authorship and Limits of Sovereign Authority Hobbes is paradoxical in that he starts with the image of free and equal indi­ viduals and ends up with an argument for almost absolute sovereignty. To address the question of the limits of Hobbes’ sovereign I need to consider the following question: why is obedience to the sovereign not absolute? Part of the answer involves understanding why, for Hobbes, individuals are free and equal in a state of nature. It is consistent with Hobbes’ cautionary tale that individuals form a social contract to avoid living in a state of war of “all against all” that dominates a state of nature. For Hobbes, they are motivated by the need to survive, which is a natural law. Hobbes is clear that “covenants not to defend a man’s own body are void” (Hobbes 1994a, pt. I, ch. XXI, para. 11). If the sovereign were to threaten your life then it is consistent with this view that it would be natural to rebel (Strauss 1996, 106). This marks the limit of the sovereign’s power that is not present when society is viewed as a natural organic whole, illustrated in the Fable of the Belly, discussed above. Hobbes’ analysis of authorship in Leviathan Chapter XVI provides an addi­ tional manner in which to consider this limit of the sovereign’s power, regard­ ing his ability to kill his subjects unopposed. Hobbes states that the sovereign, envisaged as the subject’s agent in an agency agreement, only has the power to do those acts that are within the individual’s commission. If killing herself is not within these individuals’ power then the question arises: is killing her within the sovereign’s power as her agent? For example, the deliberate engi­ neering of “suicide by sovereign” (akin to “suicide by police’) would clearly be in breach of natural law, for Hobbes, because this scenario includes the

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individual’s direct intent, the mens rea that was required for the crime of sui­ cide in English common law. For Hobbes, anyone who fails to obey this natural law by committing suicide must be insane. This is detailed in his exchange between the Law student and philosopher: He is a felon also that killeth himself voluntarily, and is called, not only by common lawyers, but also in divers statute laws, felo de se. PHILOSOPHER: And it is well so; for names imposed by statutes are equivalent to definitions. But I conceive not how any man can bear animum felleum, or so much malice towards himself, as to hurt himself voluntarily, much less to kill himself. For naturally and necessarily the intention of every man aimeth at somewhat which is good to himself, and tendeth to his pre­ servation. And therefore, methinks, if he kill himself, it is to be presumed that he is not compos mentis, but by some inward torment or apprehension of somewhat worse than death, distracted. (Hobbes [1681] 1997, 116–17; quoted in Stoffel 1991, 27) LAWYER:

Stoffel (1991) argues that, by claiming that suicides must not be sane, Hobbes provides a more sympathetic analysis than was typical in the seventeenth cen­ tury when the common concern was that “self-murder” was an affront to God. Again, when the actual material conditions rather than the image is con­ sidered, a reversal occurs. This time the reversal is not in relation to the fiction of multiple bodies compared with the material reality of pregnancy but in relation to authorship. Not only are the authors of the contract (those subjects who comprise the sovereign’s body) made liable for the sovereign’s actions as if they had authored them, they are restricted in their ability to actually author books in practice. This could be viewed as one of the many limits of their actions as personae covert. In his analysis of the power of sovereigns by insti­ tutions, Hobbes argues that sovereign power should include the right to censor books and public speech (Hobbes [1651/1668] 1994, pt. I, ch. XVIII, para. 9). To examine Hobbes’ way of construing authorship, it is necessary to explore Hobbes’ shift in the way in which freedom is understood.

Authorship, Freedom and Slavery To make the radical shift of viewing subordination as created by contract rather than as natural, Hobbes envisages individuals in a state of nature as free and equal, in ways that have a specific meaning. Hobbes defines freedom nega­ tively as the absence of external impediments (Hobbes [1651/1668] 1994, pt. I, ch. XXI, para. 2). We are free to the extent that our bodies are not constrained. This can be contrasted with the earlier republican notion of freedom as nondomination; living in a way that is not dependent upon the arbitrary whims of another, not as a slave. From the republican position, freedom of the individual could only arise within a free state that countered tendencies towards

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domination (Skinner 2008). In contrast, Hobbes marks the start of modern political thought by basing his argument for obedience on an image of the radically separate individual. Both Hobbes and republicans rely upon particular psychologies of indivi­ duals: Hobbes’ individuals are selfish, acquisitive, rational; as MacPherson argues, qualities that are associated with the burgeoning capitalist society. In contrast, republicans are concerned with the psychological effects of living under the domination of another. A courtier who lives at the behest of a sovereign may be free under Hobbes’ definition (if he or she is not subject to interference at any given moment) and yet for republicans is unfree. The cour­ tier must pay particular attention to the sovereign’s moods and police his or her actions and speech accordingly. This involves living in a state of hyper-vigilance and anxiety – the life of the persona covert. Republicans worry that such a situation is not conducive to the production of good citizens. In such a situa­ tion, it is difficult to think independently. Courtiers have to be fawning and manipulative in order to survive. It is a life that is demeaning. The same applies to other situations of domination, such as those who are living under the threat of domestic violence or are economically dependent upon another, whether as a traditional wife or employee whose income is at risk. Hence Pateman (2004), who has analysed the way in which these contracts provide a modern way of managing subordination, moves from her analysis of the social contract, tradi­ tional marriage contract and employment contracts and their problematic nature of “consent,” to argue for a basic income, not as a panacea but as an amelioration of the problem of subordination. Hobbes’ view of authorship can be supplemented by considering the position of those whose lives are dominated by the whims of another in different con­ texts, all of which affect their ability to author their own words. Starting with an extreme example: slaves in ancient Rome were not viewed as telling the truth unless they had been tortured (for useful analysis see Clemens 2013). Both slaves and those living under the domination of others (who need to police themselves and watch what they say) may be silenced but conversely they may also be forced to speak. Clemens employs this fact as his definition of what it is to be a slave: someone who may be subject to torture and forced to speak. The slave is someone who cannot be viewed as properly the author of her or his words. I want to draw upon Clemens’ work and consider the relationship between civil slaves (at the very limit of contract, as illustrated by Nozick’s (1974) neo­ liberal contractarianism) and speech by considering the relevance of Miranda Fricker’s analysis of “epistemological injustice” (Fricker 2007). Someone who is not believed unless she or he has been tortured is at the very extreme end of what Fricker has termed: “epistemological injustice.” This slave is not credited with truth telling, either in court or in everyday life. In her analysis, Fricker has in mind not slavery but prejudice. She considers the psychological implications of the fact that some individuals are treated as lacking credibility as a result of

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stereotypes about sex or race, which then tracks them throughout their life. If someone is not viewed as having opinions and observations that are worth consideration then this in turn undermines her self-belief. A vicious circle arises because her body language will start to reflect her own lack of confidence, thereby reinforcing such judgments by others. Fricker’s analysis does not rely upon broad conceptions of ideology in order to explain subordination but can be viewed as analysing one (out of many different and less all encompassing) mechanisms in which subordination is perpetuated. Within this frame, stereo­ types about the credibility of those who are subordinate contribute to the con­ struction of their self-identity. They may come to picture themselves as subsumed within others, as illustrated in Hobbes’ frontispiece, and as incapable of independent judgement. Contra Jacobson, discussed above, this “subsump­ tion” cannot be characterised as an issue of individual psychology. Hobbes is more sensible than to view torture as a way of gaining the truth. He argues that those tortured will say anything simply to relieve their pain (Hobbes 1994b, vol. 6 and 7, pt. I, ch. XIV, para 30). Neither does he envisage slaves in the state of nature. In a clear comment about natural equality, which, given the quo­ tation in Chapter XX discussed above, can be taken to include women, he states: For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination or by confederacy with others that are in the same danger with himself. (Hobbes [1651/1668] 1994, pt. I, ch. XIII, para. 1) Hobbes’ influential rejection of the republican conception of freedom is also relevant to the question of authorship. Not only does Hobbes discuss author­ ship in Chapter XVI in a way that reverses the power of the authors of the social contract and the sovereign but he also replaces a conception of freedom as non-domination with that of non-interference (Skinner 2008). This move away from a republican view of freedom, that emphasises the problem of living a life that is dominated by another, can be viewed as occluding some situations in which the subordinate are silenced in everyday life, thereby preventing them from becoming authors in practice rather than in theory. This example does not pertain to anyone who is physically gagged (whom Hobbes would view as unfree) but to those who police their own words out of fear or through the erosion of their confidence in their own judgements. There are further parallels between different contracts that create subordinate relationships, such as the way in which rebellion of the different parties to the contract is envisaged: subjects’ rebellions against the sovereign, the struggles over workers’/serfs’ rights to leave a workplace, and the struggles for the right of married women to run away or divorce. These conflicts were (and are) played out over crude direct control involving actual human bodies. The rights of the dominant party to order the traditional wife/feudal serf/subject to return when she (or he) is able to escape from the relationship is symbolised as an

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image of the personae covert enclosed within the bodily boundary of another, discussed above. The important shift in Hobbes, in comparison to the Fable of the Belly, is that the whole is comprised of individuals who previously lived apart. The idea that the political body is artificial is therefore an important change of per­ spective from that portrayed in the Fable of the Belly. Comparing it with the pic­ ture of the social contract today, Hobbes’ portrayal of contract more clearly illustrates the compatibility between contract and subordination in modernity.

Comparison with Hampton’s Picture of the Social Contract Today Unusually for an analytic philosopher, Jean Hampton recognises that [D]ifferences and disagreements among people who are supposedly in the same philosophical camp show that contractarians are united not by a common philosophical theory but by a common image. Philosophers hate to admit it, but sometimes they work from pictures rather than ideas. (Hampton 2007, 8) In her analysis of the social contract today, she describes a newer image. This still portrays individual bodies (rather than natural organs in an integrated whole as in the Fable of the Belly). However, this time the individuals are “sitting round a bargaining table” (Hampton 2007, 8) talking in order to decide the principles on which a society should be governed; the image of contract on which Rawlsian liberalism is based. There may be a temptation to position Hobbes’ frontispiece as marking a midway point between the Fable of the Belly (with all parts integrated into an organic whole) and this Rawlsian image of individuals sitting round a table (rather than subsumed by the sovereign) and trying to form a consensus. To view this as progress would be to indulge a Whig fantasy, however. There are important aspects of Hobbes’ view of contract that must be remembered because they serve as a warning. As Carole Pateman explains, Hobbes gives the game away. He produces an argument for obedience and submission through the use of contract that replaced those of relations based upon status: He identifies “consent” with submission, or the “voluntary” acceptance of protection in return for life, whether the submission is given by the subject in the face of the conqueror’s sword, by a victim to a robber with a gun, or by a child to a parent who has the power to expose or abandon it. (Brennan and Pateman 1979, 188; see also Pateman 1979) The change in women’s status can be understood in this context and, as Pateman demonstrates, interrelates with the employment contract and the welfare state, with the emergence of the welfare state in the twentieth century.

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More recently, within the West, gender relations have changed such that Pateman can view the heyday of the wife-breadwinner model in the West as ending around 1970 (Pateman 1996, 204). The diminution of this status-relationship is better for women but is carried out on the basis of greater individualism, as we all come to reflect Hobbes image of individuals (Beck and Beck-Gernsheim 1995). Employment contracts recognise inequality with some safeguards implied into the contracts. However, there is still an assumption that democracy in the polis is com­ patible with a lack of democracy, and lack of voice and authorship of the contract, in the workplace (Pateman 2002).

Conclusion There are three aspects of Hobbes’ frontispiece that portray material condi­ tions, sometimes via a reversal of the actual conditions. Hobbes provides a stark image of domination that is so total that it can be envisaged in terms of the “weaker” subjects being physically absorbed into the body of the “stron­ ger.” The image is strikingly close to Blackstone’s description of the feme covert, in the common law doctrine of coverture. This illustration of power reflects the position of workers and wives when they could be prevented from leaving their work in the workplace or home. In Hobbes’ frontispiece, the constraint of the sovereign’s subjects within the sovereign’s bodily boundaries also has its material corollary when states prevent their subjects from moving outside their borders and as a result of the “social contract,” it can also serve as a barrier to those who would enter. As Wendy Brown (2010) has analysed, these barriers, in the form of walls between states, have increased at a time when the might of Leviathan has diminished. The claim on the frontispiece that “There is no power on earth to be compared to him” is now challenged by global movements in capital and transnational legal, economic, and political institutions (W. Brown 2010, 22–23). There are two other material corollaries to the picture in Hobbes’ frontis­ piece. However, in this case they are striking reversals of the image. The birth of the Leviathan is an act of creation by his subjects, who are authors of the contract. This results in these authors becoming contained within the sover­ eign’s body, a reversal of pregnancy. Finally, when Chapter XVI is considered, Hobbes’ frontispiece portrays the authors of the social contract in relation to their representative. They are viewed, in theory, as authoring all his actions. In practice, these actions include those commands which curtail their speech and prevent these subjects from becoming actual authors. The more subtle ways in which subjugation is perpe­ tuated, by the way in which subordinates police their own speech, falls from view when our analysis of freedom is limited to that of the absence of external impediments rather than in terms that focus upon subordination. Compared to the pictures accompanying the Fable of the Belly, Hobbes’ frontispiece conveys Hobbes’ radical thought that the creation of the state was

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a technological act; that it is not natural but constructed. Similarly, it is con­ sistent with his individualism that there are no natural subordinates. Compared with Hampton’s contemporary image of the social contract, Hobbes’ stark depiction of the subsumption of the individuals into one body illustrates for us that, in modernity, it is through contract that relations of subordination are both created and managed.

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Pateman, Carole. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts.” The Journal of Political Philosophy 10 (1): 20–53. https:// doi.org/10.1111/1467-9760.00141. Pateman, Carole. 2004. “Democratizing Citizenship: Some Advantages of a Basic Income.” Politics & Society 32 (1): 89. https://doi.org/10.1177/0032329203261100. Poole, Thomas. 2004. “What’s God Got to Do with It? Waldron on Equality.” Journal of Law and Society 31 (3): 387–407. Quintilian. 1891. Quintilian’s Institutes of Oratory: Or, Education of an Orator. In Twelve Books. Literally Translated with Notes, by Rev. John Selby Watson. Trans­ lated by John Selby Watson. London: George Bell. Rawls, John. 1971. 1999. A Theory of Justice. 2nd ed. Oxford: Oxford University Press. Richardson, Janice. 2007. “Contemporary Feminist Perspectives on Social Contract Theory.” Ratio Juris 20 (3): 402–423. https://doi.org/10.1111/j.1467-9337.2007.00367.x. Richardson, Janice. 2009. The Classic Social Contractarians. London: Ashgate Publishing. Selden, John. 1614. Titles of Honor. London: Printed by William Stansby for Richard Whitakers. Skinner, Quentin. 2008. Hobbes and Republican Liberty. Cambridge: Cambridge Uni­ versity Press. Spinoza, Benedictus de. 1991. The Ethics; Treatise on the Emendation of the Intellect; Selected Letters. Translated by Samuel Shirley. Indianapolis: Hackett. Stanton, Timothy. 2011. “Hobbes and Schmitt.” History of European Ideas 37 (2): 160–167. https://doi.org/10.1016/j.histeuroideas.2010.11.007. Stoffel, Brian. 1991. “Hobbes on Self-Preservation and Suicide.” Hobbes Studies, no. 4: 26–33. https://doi.org/10.1163/187502591X00039. Strauss, Leo. 1996. “Notes on Carl Schmitt, ‘The Concept of the Political’ by Leo Strauss.” In The Concept of the Political, translated by George Schwab and Harvey Lomax, 97–122. Chicago: University of Chicago Press. Waldron, Jeremy. 2002. God, Locke, and Equality: Christian Foundations of John Locke’s Political Thought. Cambridge: Cambridge University Press.

Chapter 8

Carole Pateman, the Sexual Contract, and Freedom

I start this chapter by outlining key relationships in Pateman’s paradigmatic feminist critique of the social contract tradition in the seventeenth and eight­ eenth centuries and the role of the social contract in perpetuating subordina­ tion. This outline illustrates how Pateman’s conception of freedom and participative democracy are central to her work. I then turn to The Dawn of Everything: A New History of Humanity (Graeber and Wengrow 2021) to compare Patman’s political analysis of freedom with their conceptions of free­ dom drawn from their research on the variety of social structures in early societies. Despite the importance of seventeenth and eighteenth-century political theory for Pateman’s analysis, I demonstrate why this work on early societies is useful based on two reasons. First, Graeber and Wengrow illustrate that there is no inevitability that societies always require systematic subordination, given their diversity; and second, that they provide such a basic analysis of freedom that it can be employed to think about the relationships that Pateman highlights as maintained through the fiction of property in the person.

Introduction This chapter is focused on Pateman’s paradigmatic feminist analysis of the social contract tradition in relation to freedom. As Pateman says, My arguments in The Sexual Contract and Contract and Domination are not about groups. Rather, they explore power structures, subordination, and freedom. (Pateman and Mills 2010, 123; emphasis added) In The Sexual Contract, Pateman (1988, 28–29) recognised the work of feminist anthropologists. However, she argued that the main view of ourselves today arises from the seventeenth and eighteenth-century social contact theorists, emphasising the need to focus on their thought because it is still employed to justify subordination. I agree, and therefore think Pateman’s critique is impor­ tant, as I will explain in the first half of this chapter. However, I turn to the DOI: 10.4324/9780429329678-10

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work of Graeber and Wengrow and their analysis of early societies because they offer insights into the sheer diversity of other political structures – not all of which involve relations characterised by subordination. Despite the clear rele­ vance of seventeenth and eighteenth-century social contract theorists to Pate­ man’s position, it is useful to recognise descriptions of any societies that challenge the idea that subordination is an inevitable part of every society. Graeber and Wengrow’s analysis therefore provides a useful antidote to a wes­ tern tradition that is full of images of the inevitability of patriarchy and sub­ ordination, particularly with its obsession with ancient Greek slave owning patriarchs, as discussed in Chapter 4 (on Arendt’s conception of action in the polis). Unearthing different ways in which people have organised themselves illustrates that humanity is far more imaginative and downright quirky than to converge on any fixed, unjust pattern of society. Associated with this point, Graeber and Wengrow (2021, 71–77) argue convincingly that it is important not to view early humanity as primitive or “stupid” when attempting to understand their societies. The second reason to consider ancient societies – actual states of nature – aside from their diversity, is because Graeber and Wengrow draw from their descriptions of these societies to suggest some very basic arguments about what it is to exercise freedom. As I will show, these are still relevant to our current position because they are broadly conceptualised and can be applied to familiar situations today.

The Sexual Contract: an Overview of a Central Idea In The Sexual Contract, Pateman achieves a great deal. One element I will concentrate on is that, without focusing on his work, Pateman provides an important piece of the jigsaw that was missing from Crawford Brough Mac­ pherson’s Marxist analysis of the seventeenth-century social contract theorists.1 In The Political Theory of Possessive Individualism: From Hobbes to Locke, Macpherson (1962) attacks Locke’s description of “property in the person” (or what Macpherson describes as “possessive individualism,” which is sometimes also described as “self ownership”). Pateman’s preference is for the phrase “property in the person” because of its clear reference back to John Locke’s initial usage of the term in “Of Property” (Locke [1689c] 1988, ch. 5). For an analysis of these terms, see Pateman (2002). All these terms refer to the same political fiction that is evoked when we view ourselves as owners of our attri­ butes and abilities, such as our labour power (our ability to work) that cannot be removed from ourselves. This political fiction differs from the market in bodily parts, which can actually be removed from the body, such as blood. As a result of this political fiction, we treat our attributes and abilities as if they were commodities, created for the market place (as discussed in Polanyi’s The Great Transformation (Polanyi [1944] 1957)). This occurs when someone enters into a 1

Macpherson is mentioned briefly in The Sexual Contract (Pateman 1988, 81).

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contractual exchange to receive wages for work, for example, as I will discuss in more detail below. Pateman follows Macpherson’s Marxist analysis by showing that this poli­ tical fiction (that we can treat parts of ourselves as if they were property) is employed in modernity in ways that disguise relationships based upon sub­ ordination and characterise them as mutual exchange. Further, she demon­ strates that contracts based upon this fiction represent a way that subordination is managed in modernity. In other words, this fiction facilitates the replacement of earlier relationships based upon feudal status with contractual relations. These contractual relationships appear to take place between equals but main­ tain the element of subordination in a different guise. To explain Pateman’s argument in more detail, along with the importance of her contribution in the The Sexual Contract and Contract and Domination (Pateman 1988; Pateman and Mills 2007), I will outline three relationships that have the same structure, i.e. they are contracts that entail an exchange of property in the person by one of the parties who were historically subordinated, thereby altering the way in which their subordination is framed. These pairings will be outlined and the role of property in the person explained further. I will consider three pairings in turn: sovereign and the subject; employer and employee; and (Pateman adds the contract that was missing from mainstream political theory at a time when it was particularly blind to women): husbands and wives. I will look at each of these contracts in turn, starting with the sovereign and subject. (a) Sovereign and the Subject The social contract theorists of seventeenth and eighteenth century told stories about the move from a state of nature (a state without laws) to the creation of the sovereign, who in turn would create and enforce law (Hobbes [1651/1668] 1994; Locke [1689b] 1988; Rousseau [1762] 2004).2 These classic social contract theorists did not claim that they were describing actual history. They were telling “just so” stories. They claimed that society works as if everyone (in the case of Hobbes) or all men (as outlined by theorists from Locke onwards) had entered into a contract to create and obey a sovereign who then enforces the law. The benefits of creating such a system of laws are described differently by the social contract theorists.3 2

3

Pateman (1988) also analyses Kant, in ways that dovetail with Battersby’s analysis of his views of women as less than persons, discussed in Chapters 1 and 4. However, he does not provide a story of the state of nature, as such, because, for him, the social contract is an “idea of reason.” For Pateman’s discussion of Kant on the marriage contract see Pateman (1988, 168–73). For example, for Hobbes, the transition to a civil society (out of a state of nature) involves moving beyond a state in which life is “solitary, poor, nasty, brutish, and short.” (Hobbes [1651/1668] 1994, ch. XIII [9] 76) to a more commodious life by facilitating co-operation. The sovereign would do so by enforcing contracts. In contrast, for Locke, having a state involves having neutral judges who are able to do

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Pateman traces the weaknesses in the arguments of each of these social con­ tract theorists when the position of women is highlighted. Hobbes alone views women as equal in the state of nature because, he argues, there is not such a difference in the strength and “wit” of men and women for men to dominate women in his (individualistic) state of nature (Hobbes [1651/1668] 1994, ch. XX [4] 128). Given this equality, Pateman points to an inconsistency in Hobbes’ story that differs from that of the other social contract theorists. From Locke onwards, the social contract theorists straightforwardly fail to apply their pro­ gressive insight (that political arrangements arise by convention) to women. In other words, they continue to view women’s subordination as natural (Pateman 1988, 60). Given Hobbes’ position that women are naturally equal to men, Pateman (1988, 64–73) finds a different inconsistency in Hobbes’ story. Hobbes would be aware that, if his story were situated in England during his time, married women would be subject to the doctrine of coverture that made them the equivalent of civil slaves. So, Pateman questions why free and equal women in a state of nature (as envisaged by Hobbes) would enter into a social contract to create a sovereign who would then enforce laws, if those laws made them subordinate to men, as did the doctrine of coverture. As she puts it, [Women] must be excluded if the contract is to be sealed; rational, free and equal women [in a state of nature] would not agree to a pact that sub­ ordinated women to men in civil society. The assumption must necessarily be made that, by the time the social contract is made, all women in the natural condition have been conquered by men and are now their subjects (servants). (Pateman 1988, 48–49) As Pateman makes plain, her re-reading contradicts Hobbes’ statements about the equality of women in the state of nature (Hobbes [1651/1668] 1994, ch. XX [4] 128). She is dealing with Hobbes’ contradiction regarding the position of women. Given that free and equal women would not join a social contract to be subordinated in civil society, Pateman’s “as if” story goes, they must have been captured in the state of nature. Behind Hobbes’ social contract lies a sexual contract made only between men to facilitate their access to and use of women’s bodies and labour. (b) Employer and Employee In modernity, the relationship of employer and employee came to replace what was previously that of feudal relations. The gradual transformation of this justice in disputes and to enforce property ownership. Rousseau is critical of the coercion of the state and considers what would make it legitimate, albeit from a position that is misogynist.

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feudal relationship is outlined in, for example, Robert Castel’s From Manual Workers to Wage Laborers: Transformation of the Social Question (Castel [1995] 2002). Castel gives a fascinating analysis, albeit sadly only of the trans­ formation of male workers treated as the norm, and hardly registers the his­ torical changes in the position of women. Feminist historians have traced this transition between modes of production, from feudalism to capitalism, after which women have struggled to have work within the home recognised as work. This is illustrated by Silvia Federici’s (2004) historical analysis and her role in the “wages for housework” movement (Federici 1975). I will return to Federici’s work below. Linda Scott explains this continuing problem in simple terms. In The Double X Economy, Scott (2020) provides contemporary argu­ ments regarding women and work, particularly based on her empirical studies of the developing world. The “double X” refers to women. In 2020 she comments, [T]he crux of the Double X Economy’s plight is its burden of servitude; socalled “obligations” at home penalize women in the workplace and increase their personal economic risk. Women in every country work as many total hours (or even more than) men, but because females carry the burden of unpaid household labor, they have fewer hours to devote to paid work, as well as to leisure time. Men can work longer paid hours – and garner the economic benefits – because women are serving them at home. (Scott 2020, 22) She details the cruel impact of contemporary patriarchal economics on women’s lives in the developing world. To do so, she employs her ability to provide detailed analyses of practices in the developing world to focus on practices in the developed world. She provides a devastating critique of the misogynist attitudes and practices of western economists, including those within presti­ gious universities (Scott 2020, ch. 1). Regarding the paid workplace, Macpherson (1962) drew together the image of “possessive individuals” within the social contracts of Hobbes and Locke to show how they share an image of individuals who are seen (and view them­ selves) as owners of their abilities as if they were commodities made for exchange in the market place. Subjects – by forming the social contract – exchange obedience to the law for the benefits of moving to a state with laws. Similarly, employees exchange their labour power for wages. Employing the example of Britain to trace the history of this transition to paid employment, Pateman points out that the British Poor Law of 1834 created a labour market, in which property in the person was exchanged for a wage (Pateman and Mills 2010, 114).4 In the US, for example, the “aristocracy” of class was white working 4

Pateman (2010) is summarising her earlier work to illustrate how The Sexual Contract included issues of class, race, and sexuality. I am employing her summary.

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class men, with African American men being denied entrance into areas of work as well as some areas of welfare benefits. In reference to the history of the white working class, Pateman also notes that “in Britain the working class shared in the prosperity based on the extraction of wealth from colonial possessions.” (Pateman and Mills 2010, 114). Today, Pateman (Pateman and Mills 2010, 114) points out that it is workingclass women and non-white men5 who are disproportionately in lower paid jobs, particularly in the gig economy. While Pateman recognises the changes in how we conceptualise class, it is useful to add a brief description of the new class that Guy Standing refers to as the “precariat” (Standing 2011). This is his portmanteau term based on “precarity” and “proletariat”. He describes how being part of the precariat – compared with those who have a salary and tra­ ditional work structure that is predictable over time – involves having to put in extra hours to organise a series of temporary jobs with intermittent applications for welfare benefits. There are many problems that have arisen, for the pre­ cariat, as a result of the way technology has been used by employers, in areas of surveillance for example, which has a serious impact on these workers, such as Uber drivers. The terms and conditions of the precariat are being fought out in ongoing litigation world-wide. Where the claim that the precariat are indepen­ dent contractors has been successful these workers’ rights are eroded. For example, they can be paid below a minimum wage and not given time off for sickness. At the same time, technology not only increases their problems with surveillance but also causes problems with time management. For those (mainly cis women) who are struggling with a double shift of combining paid work in “workplaces” and unpaid work in the home, the emergence of machine learning to set different work times each week (to maximise resources for the company) makes organising a schedule extremely difficult (see Gilman 2020). Importantly, Pateman adds the “blind spot” in Macpherson’s (Marxist) analysis that has the same structure as the sovereign/subject and employer/employee rela­ tionships in that the subordinate party exchanges property in the person, which really involves obedience. Prior to Pateman and feminists like her, mainstream political theory was oddly blind to women’s position in the 1970s, as illustrated by Rawls’ ([1971] 1999) view of husbands and wives having the same interests, as discussed in Chapter 5. Rawls’ position was subject to devastating critique by Susan Moller Okin (1989a). Pateman also challenged this faulty assumption when she added in the missing contract, that of husbands and wives. (c) Husbands and Wives As discussed, in the stories of the social contract, subjects create a sovereign by exchanging their freedom, i.e. a promise of obedience (property in the person) 5

Those subject to discrimination in the workplace also include trans and non-binary persons and those with disabilities, of course.

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for the “benefits” of living under the sovereign’s laws. In an employment con­ tract, the worker exchanges labour power, an ability to work, (property in the person) for a wage. The same structure applies to marriage. In the marriage contract, the wife exchanges consortium (sex, pregnancy, child rearing, house­ work, and care work and, into the twentieth century in the West, obedience as stated in the marriage vows) for material support from her husband. This contract was expressed as an exchange of obedience for protection. This ana­ lysis of the marriage contract is part of the history of women’s position in relation to work that is ignored in both Macpherson (1962) and much more recently by Robert Castel ([1995] 2002), both of whom focus on white, working class, (assumed cis and non-disabled) men. The marriage contract, under the common law doctrine of coverture, is famously described by Blackstone, as mentioned in Chapter 7 and discussed further in Chapter 12: By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is there­ fore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. (Blackstone 1765, 442) Pateman (2010, 113–14) describes “the heyday” of modern patriarchy as taking place in the period from 1840 to the 1970s in the West. Since that period, the effective civil slavery of the earlier marriage contract has been gradually eroded in the West but there is still not full equality in terms of the hours spent working or physical safety in the home.6 Changes have arisen very late in many cases. For example, the “married man’s exception to rape laws” continued until 1991 in the UK and Australia. The recent acceptance of gay marriage has done more to undermine (or disguise), what John Stuart Mill referred to as the “brutal origins” (Mill [1869] 1984, 264) of marriage. Pateman comments that, Until the legal underpinnings of the racial order finally began to be dis­ mantled in the 1960s, being a husband only carried wider privileges for white husbands. (Pateman and Mills 2010, 120) This is illustrated in my discussion of privacy and domestic violence in Chapter 12. 6

As illustrated by the findings of Victoria’s domestic violence commission (Neave, Faulkner, and Nicholson 2016).

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Pateman also makes the following point about sexuality (the first sentence of which continues to resonate with Linda Scott’s empirical research, discussed above): The sexual contract is a heterosexual contract; it is about the right of men’s government over women, which includes access to their labor and to their bodies. But the broader term “sexual contract” captures the privileged place of heterosexuality (“sex”) and the exercise of masculine power in other areas of social life, and also allows for an exploration of the interrelation­ ship between the sexual and racial contracts. (Pateman and Mills 2010, 120) As the quotation at the start of this chapter states, in both The Sexual Contract and The Domination Contract, Pateman highlights, “power structures, sub­ ordination, and freedom” (Pateman and Mills 2010, 123) rather than focusing on a particular group. In a clever move, discussed above, she tells her own story of the “sexual contract” in response to the social contract theorists’ own “as if” stories. She envisages society as working as if there is a contract between men to gain access to women’s bodies and their labour. This “fraternal contract” (Pateman, 1988, 77–82) is envisaged as being between heterosexual men. In 2010, she discusses how the regime of heterosexuality has been violently policed and that – despite advances – there is a rearguard action being fought particu­ larly by fundamentalist religious denominations (Pateman and Mills 2010, 120). While also recognising Monique Wittig’s (1989) essay, “The Heterosexual Contract,” Paul Preciado also comments on Pateman’s work in ways that recognise her focus on power structures, subordination, and freedom. In the appropriately titled chapter, “Politically Assisted Procreation” (Preciado 2020, ch. 4), Preciado describes marriage as a patriarchal institution that – prior to paternity testing and the pill – gave husbands paternity rights over any children of the marriage. Preciado then links the institution of marriage with the way in which subjugation in colonial Europe in modernity was based on the political distribution of bodies according to their reproductive functions (Preciado 2020, 51). This involves biopolitics, in particular, the European states’ concern to increase the size of their populations. So, heterosexuality became a mechanism of national reproduction and, as a result, those who were not heterosexual were excluded from the heterosexual contract. He argues that, with the impact of the contraceptive pill, this has now changed. (There are also radical potential changes regarding currently existing industrial surrogacy and techno-scientific potential for ecto-gestation.) Preciado’s reference to “politically assisted repro­ duction” highlights his attack on the idea that heterosexual reproduction is “natural” by pointing to the way that such reproduction was “politically assis­ ted” by the state. Pateman’s analysis of contracts within modernity is consistent with Federici’s (2004) position in that both reject the idea that marriage continues to be a

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feudal relationship. Marriage in the West becomes gradually contractual, even though there remained areas based on status until very recently, such as the assigned sex of the parties. Federici discusses the way that marriage functions within capitalism and how, with the transition from feudalism to capitalism, women’s work within the home stopped being recognised as actual work. In effect, she argues that capitalists receive the benefits of the reproduction of the next set of workers (through “women’s work” in reproduction and care/house­ work) for free. Despite working a double day, wives came to be viewed as depen­ dants in the “patriarchy of the wage,” as Federici (2004, 95) terms it. This patriarchal wage allowed men to appear to support their wives and, until relatively recently, to justify their higher wages in terms of family support to the further disadvantage of women, especially when marriages broke down (see Hochschild and Machung 2012). Nancy Fraser and Linda Gordon (1994) in “A Genealogy of Dependency” have made clear the extent to which, in traditional marriage, men have relied upon women’s unacknowledged labour within households. This situation has improved particularly for white, cis, middle and upperclass women in the developed world, with much greater access to education and to the professions, the contraceptive pill, and greater reproductive justice, save for in the US. In contrast, Sophie Lewis links women who sell child care with those who take part in the industrial surrogacy in the developing world: “Surrogate,” more than “reproductive” or “feminized,” might be a word that proves useful … in bringing together the millions of precarious and/or migrant workers labouring today as cleaners, nannies, butlers, assistants, cooks, and sexual assistants in First World homes, whose service is figured as dirtied by commerce, in contrast to the supposedly “free” or “natural” love-acts of an angelic white bourgeois femininity it in fact makes possible. (Lewis 2021, 56) Here, I read Lewis as following Preciado in “biodrag” (Preciado [2008] 2013, 193), his term that is employed to undermine the idea that heterosexual bodies and families are more “natural” than anyone else, discussed above. This derives from the influence of Judith Butler’s Gender Trouble (Butler 1999) but is a dif­ ferent theoretical move because he focuses upon the body and the impact of pharmacology, rather than discursive practices. In Chapter 5, I discussed Pate­ man’s surrogacy contract, which has the structure of the above contracts when – in the example she gives in 1988 – the surrogate provides gametes as well as gestation (the fictional “property in the person”) and so exchanges what would otherwise be viewed as her “own child” for money. Pateman goes beyond this “common sense” to argue that surrogacy provides men with a new way to access and use women’s bodies, while allowing them to claim a new form of paternal right. In contrast, the usual position today – in “industrial” surrogacy – is to have all gametes provided and pay women (usually from the developing world) for

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gestation. Pateman’s argument, that women’s subordination to men opens them up to exploitation, clearly describes the position of these women. The contract involves regulation of their bodies, in particular living in a hostel during the pregnancy. There are also obvious medical risks involved. However, as dis­ cussed in Chapter 5, difficult questions arise because gestational surrogates will be at greater risk of physical injury (and in a worse negotiating position) where the practice is illegal. Creating policy must certainly involve getting the opi­ nions of those women who are at the sharp end of industrial surrogacy as to what would improve their lives. In the second part of this chapter, I will move from the stories that the social contract theorists told about the state of nature to justify a transition to a state with laws. I will now consider Graeber and Wengrow’s detailed analysis of actual societies that existed prior to states and laws. The meaning of freedom in this context will be examined and I will compare it with Pateman’s view of freedom.

Diversity and Freedom in “States of Nature” Graeber and Wengrow start The Dawn of Everything: A New History of Humanity with a criticism of the way that Hobbes’ and Rousseau’s different (self-consciously) fictional descriptions of the state of nature, envisaged as early societies without a sovereign and laws, have been adopted as truth (Graeber and Wengrow 2021, 6–24).7 In contrast, they consider developments in their own fields of anthropology and archaeology respectively to substitute evidence of early societies in place of the social contract stories of the seventeenth and eighteenth centuries. There are obvious gaps in our knowledge, of course, but these areas of study have not stood still in terms of scientific analysis. In taking this approach, they also try to rectify biases within existing scholarship in their areas, which have been replete with gender stereotypes, among other bigoted assumptions, that have influenced the way that their predecessors’ filled in the gaps in their knowledge. This includes the stories of social contract theorists themselves, such as Rousseau’s Origins of Inequality (Rousseau [1754] 1992) in which Rousseau created a myth about stages within the state of nature in which all women become naturally subordinate. In this sense, feminist work (along with other forms of political critique) serves as a type of error correction. Graeber and Wengrow do not aim to produce fictions, of course. Instead, they aim to be as objective as possible, spelling out the basis of any conjectures and assumptions, aided by both an awareness of the biases of the past, and by contemporary empirical techniques. 7

Graeber and Wengrow (2021, 9–14) cite the following as having assumed that the stories of one of these social contract theorists were actually true: Fukuyama (2011) The Origins of Political Order, who asserts that Rousseau was “largely correct,” along with Jared Diamond (2011) The World Until Yesterday. In contrast, Pinker (2012) The Better Angels of Our Nature, prefers Hobbes.

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I will outline only a few of the many observations and arguments that makes The Dawn of Everything so rich and then will consider the conclusions that are most relevant to thinking about Pateman’s view of freedom. Importantly, Graeber and Wengrow deny common beliefs that: 1

2

there is a teleology8 that describes a necessary development of one type of society into another, for example that societies comprised of hunter gath­ erers necessarily develop into tribes and then farmers, an approach that, as they demonstrate, has dominated scholarship; and similarly, they argue against the idea – associated with this teleological approach – that our freedom is necessarily curtailed when a society reaches a certain size.

As mentioned in my introduction, what is striking about this research is the diversity of social structures and ways of living in early societies. This is far from an entire history filled with patriarchal or other types of subordination, although some such societies existed, nor do Graeber and Wengrow raise the idea that a world-wide patriarchy took over from such a matriarchy, of course. They do note that their (male) disciplinary predecessors ridiculed any scholar with the temerity to raise questions about the possibility of anything other than male dominance in early societies. Interestingly, they report finding evidence for societies that seem to have avoided hierarchy and war for lengthy periods of time. This finding opens up important questions as to how some societies could organise in such a way that allowed them to avoid creating and perpetuating relationships of domination and subordination. Graeber and Wengrow also raise the question of how to understand the relationship between violence that is internal to a society (such as violence by men towards women) and external violence (war between different societies) and I will return to this point. In summary, the sheer breadth of different ways of living challenges not only tel­ eology regarding development, but also the inevitability of subordination in societies. I can only give a flavour of what is a very detailed analysis of evidence and argument. As mentioned, improvements in archaeological analysis – along with a political focus on freedom and domination – allowed Graeber and Wengrow to challenge previous stereotyped interpretations of earlier societies. A simple recent example will illustrate this. A breakthrough in the tests for the sex of bones has highlighted the crude gendered and sexual stereotyping in that area. When two bodies were found, having been buried holding hands, they were 8

For feminist and Spinoza’s critiques of teleology, see Chapter 4 and Chapter 12, e.g. some judges in the wrongful birth cases assume that giving birth is “what women are for.” Teleological conceptual frameworks are often associated with subordina­ tion in that they tend to be based on the idea of a patriarchal God, for example, or ideas as to what is “natural” behaviour, which are employed to try to justify subordination.

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initially viewed as male and female and as lovers. When more accurate testing was developed, they were re-classified as both male. It was then assumed that they were friends or fellow warriors (Lugli et al. 2019). Graeber and Wengrow detail other mechanisms by which such crudely ste­ reotyped speculations occur. For example, they illustrate that societies with hierarchical political structures have been recorded through their building works, in particular the monuments to the “great and the good” that they pro­ duce. This is opposed to societies in which inhabitants appeared to have lived in similar sized houses without such monuments. Similarly, the authors point to an omission in the literature of evidence of peaceful societies which last for thousands of years, which are characteristically described as “dark ages” (Graeber and Wengrow 2021, 418). The description of “dark ages” highlights another problem. They demon­ strate the political assumptions that are made in the description of particular eras, and their analysis of the Middle Kingdom in Egypt (2055–1650 BC) pro­ vides a useful example. This kingdom is generally portrayed as moving “from the supposed chaos of the First Intermediate period into a renewed phase of strong and stable government, bringing with it an artistic and literary renais­ sance” (Graeber and Wengrow 2021, 381). However, they point out that during this “renewed phase” there were violent disputes over royal succession and that ordinary people were subject to both forced labour and crippling taxation. Their conclusion highlights the political bias of earlier writers, along with their own egalitarian position, when they conclude that the art produced would “offer little solace to the thousands of military conscripts, forced labourers and persecuted minorities of the time, many of whose grandparents were living peaceful lives in the preceding ‘dark ages’” (Graeber and Wengrow 2021, 382). Graeber and Wengrow: Central Arguments on Freedom and Domination Graeber and Wengrow describe three different types of freedom and illustrate them with examples from early societies, along with their corollaries: three types of domination. They present a clear view of what freedom entails that, in common with Pateman’s view of freedom, is positive (requiring that people have an ability to act rather than be passive) in contrast with negative freedom (the right to be left alone, associated with liberalism (Berlin 2002)). Also in common with Pateman, they illustrate their arguments historically. Neither simply describe freedom in terms of legal rights. Of course, Graeber and Wengrow analyse societies in a state of nature (i.e that do not have a state with laws at all) and so individuals could not rely on such legal rights being enforced by state violence. As a result, the acts that Graeber and Wengrow describe are free acts in themselves. They do not require any further action by another party, unlike rights-claims that are litigated. As I will illustrate, these free acts also involve attempts to guarantee future freedom, as can be seen from the example of the ability to ignore orders, to be discussed below.

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I will start with freedom’s corollary, domination, because it is useful to understand domination first, given that Graeber and Wengrow characterise freedom as that which prevents or curtails acts of domination. Graeber and Wengrow (2021, 363–70) point to three basic ways in which relationships based on domination can take hold in a society: (1) through the control of violence; (2) through the control of knowledge; and/or (3) through charisma. The exis­ tence of only one type is sufficient for domination to occur. However, some societies have more than one type that interrelate. Current states employ all three. First, contemporary states claim a monopoly on the use of violence. Graeber and Wengrow discuss the work of Rudolf Von Ihering as a nineteenthcentury precursor of Weber in making the claim that, “a state should be defined as any institution that claims a monopoly on the legitimate use of coercive force within a given territory” (Graeber and Wengrow 2021, 359). Second, con­ temporary states also have a bureaucracy with strong administration that con­ trols (some) knowledge, although the extent of that knowledge has increased with computer mediated communication (Greenwald 2014). Third, con­ temporary states have competitive voting, which Graeber and Wengrow view as an example of charisma, associated with competitions between an elite class. In Anarchy in a Manner of Speaking, Graeber (2020), suggests that these three different areas of domination had entirely separate historical origins that just happened to come together in contemporary states. He comments, “we have been trying to convince ourselves ever since [these areas of domination] have some kind of necessary relation to each other when in fact they don’t” (Graeber 2020, 32). Turning back to early societies, (Graeber 2020, 32) supports this claim with examples of societies in which only one (or sometimes two) of these elements of domination have occurred. For example, the Shilluk – a Nilotic pastoralist people – had a king who was viewed as divine. As a result of this status, he could do anything he liked to people around him, including acts of violence. However, without a bureaucracy, he was unable to enforce his wishes on anyone else. As it was possible for most people to avoid the king’s violence, he was reduced to dominating a small group comprising of his wives and henchmen. Unsurprisingly, he was not noted for his charisma. So, another avenue of domination only arose when he died and elite rivals competed for power. Graeber compares this example of domination through violence with another example, the Sumerians who formed the first “states” that we know about. However, there was no central organisation that claimed a monopoly on vio­ lence within a territory. It had no police, for example, nor did it have charis­ matic competition. However, it did rely upon the other form of domination: the existence of “complex layers of administration” and commerce (Graeber 2020, 33). Drawing on a common theme in which neighbours tend to produce opposing customs, defining themselves in opposition to each other, Graeber argues that the barbarians who lived beside the Sumerians then did the opposite:

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So, if the Sumerians create a commercial and bureaucratic society, then the barbarians refuse to use money … Where the city people pile up wealth and keep careful count, they have festivals where they dump it in the ocean or set fire to it. (Graeber 2020, 34) This quotation captures the diversity that appears in the different societies dis­ cussed. This discovery, amongst other examples, undermines the idea that all societies were similar, simply going through teleological stages of development. With regard to the third area of domination, that of competition between charismatic “heroes,” Graeber provides the examples of Rig Veda, the Homeric epics, and later the Nordic or Celtic or Balkan epic cycles (Graeber 2020, 33). The reference to the competitions between an elite for popular acclaim and power is reminiscent of Alan Ryan’s comment regarding contemporary “liberal democracies” in the US and UK. He comments that they are wrongly named, suggesting that a more appropriate description would be “plutocratic mixed republics with a substantial populist component” (Ryan 2008, 167). Turning from these three ways of understanding domination to consider freedom, the main three freedoms that Graeber and Wengrow propose also derive from the ancient societies they study. Graeber and Wengrow suggest that people are free if at least one of the following conditions, “primordial free­ doms,” holds: Over the course of this book we have had occasion to refer to the three primordial freedoms, those which for most of human history were simply assumed: the freedom to move, the freedom to disobey and the freedom to create or transform social relationships. (Graeber and Wengrow 2021, 426) While either one of these examples will entail some degree of freedom, it is better to be able to combine all three types of these “primordial” freedoms to combat domination (Graeber and Wengrow 2021, 469). I would add that it is possible to imagine a situation in which you could ignore or refuse to obey orders but, without the ability to leave, this would be a constant irritation or require an attempt to “negotiate” from a weak position, in ways that would be demeaning. Without the ability to transform social relationships, the kinds of situations which Jean Hampton discusses are likely to occur, for example (Murphy and Hampton (1988), as I discuss in Chapter 6. Hampton (Murphy and Hampton, 1988, 39) considers an example of a woman subject to repeated belittling comments by her father in law, who is pressured to “let it go” with­ out objecting, for the sake of family peace. In these situations, as in more ser­ ious instances of domestic violence, some women could physically leave the family – and could refuse to obey “orders” – but experience social pressure not to do so. The fact that there are grey areas in these examples of freedom does

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not undermine their usefulness. They allow us to make clearer judgements and, in Graeber and Wengrow’s examples of early societies, to compare freedom in different societies. Graeber and Wengrow employ an example of the descendents of the Caho­ kia, for whom migration entailed “merging our three elementary freedoms into a single project of emancipation: to move away, to disobey and to build new social worlds” (Graeber and Wengrow 2021, 469). Given the sparsity of popu­ lations, they comment that what now would be called “a new social movement” literally could entail groups of people physically moving away from an area to escape domination. Graeber and Wengrow add to debates about what caused a mass defection from Cahokia around AD 1350 or 1400 in ways that illustrate their conceptions of both freedom and domination. All three elementary freedoms were exercised by those who left Cahokia en masse. Applying their framework about dom­ ination to Cahokia, it was a second order regime (i.e. one in which there exis­ ted two out of the three elementary forms of domination). In this case, the dominant inhabitants had control over violence, and charismatic politics. Graeber and Wengrow speculate that the mass movement away from Cahokia could have been prompted by an attempt to create a third order regime of domination by including administration. The administration that existed con­ cerned otherworldly matters, which included ritual calenders and administra­ tion of sacred spaces. While this administration sounds esoteric, Graeber and Wengrow suggest that it could have real world effects on city planning, labour mobilisation, public surveillance and the monitoring of the maize cycle (Grae­ ber and Wengrow 2021, 468). They suggest that control over violence and this esoteric knowledge could have been caught up in the political rivalry of elites; that the collapse of such “totalising (totalitarian, even) projects, when it hap­ pened, was itself sudden, comprehensive and total” (Graeber and Wengrow 2021, 468). These basic areas of freedom – the ability to leave, to ignore or refuse orders or/and to create different social ties – are inter-related and, in common with domination, occur in different contexts. I am referring to the way that Graeber and Wengrow’s analysis cuts across the public/private divide; that they consider practices of domination and of freedom that can be applied to different rela­ tionships. Recall that Pateman focuses upon: the “relationships” of sovereign/ subject, employer/employee and husband/wife in modernity. In the early socie­ ties that are studied by Graeber and Wengrow, the equivalent relationships entail considering: (i) how decisions in general are made and whether anyone is excluded; (ii) how the society is organised in order to gain the necessities of life; and (iii) how reproduction and care are organised. Importantly, these activities may not be viewed as separate areas of life. While I have mapped these onto the relationships that Pateman discusses (of sovereign/subject, employer/employee and husband/wife), in societies without hierarchies and without a public/private divide, all may take part in all these areas of life and they may be inter-related.

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In contemporary society, while there may be social pressure not to leave a situation in which you are subject to domination, it is possible that anyone who is not trapped in a particular relationship can refuse to take orders, as illu­ strated in Pateman’s views of employment and marriage and the political implications of universal basic income. This opens up the more radical possi­ bility that subordinates could challenge the ways that social ties operate. In common with Graeber and Wengrow, Pateman’s work clearly challenges (and cuts across) the public/private divide regarding analyses of subordination and freedom. Pateman (1988, 85), and in her “Feminist Critiques of the Public/Pri­ vate Dichotomy” Pateman (1989), also critiques the way that Locke (1689c, 71) distinguishes between the power of kings and the power of husbands. Pateman’s analysis of freedom also concerns having a voice in your everyday life in ways that fit with Graeber and Wengrow’s elementary freedoms and can be viewed in terms of a sliding scale. You are more able to act freely the more that you can – not only escape or refuse/ignore orders – but also are able to create different social relations. So, for Pateman, who is considering today’s society, this would involve increasing workers’ say in workplaces with the more radical aim of changing workplaces (including in the home) so that they no longer train people in subordination. For her, any increase in workers’ say is a step in the right direction because there cannot be democracy in the polis while it does not occur in everyday life. As a result, Pateman is also interested in attempts to ensure everyone can learn the expectation and ability necessary to make decisions. As the plight of refugees and contemporary slavery illustrates, today it is not possible for everyone to leave a country easily. The ease with which this can be done continues to depend mainly on race and wealth. Bauman and Lyon provide a detailed analysis of the ways in which individuals are subject to technologies that facilitate “sorting” between different groups, as well as surveillance at borders (see Bauman and Lyon 2013).

Freedom and Future Research Graeber and Wengrow consider the discoveries of ancient cultures in which there is no evidence of violent deaths over centuries followed by evidence of outbreaks of a large number of violence deaths to ask the following question: Was there a relationship between external warfare and the internal loss of freedoms that opened the way, first to systems of ranking and then later on to large-scale systems of domination, like those we discussed in the later chapters of this book: the first dynastic kingdoms and empires, such as those of the Maya, Shang or Inca? And if so, how direct was this correlation? (Graeber and Wengrow 2021, 507) By “internal loss of freedoms,” they consider the issue of gender inequality, by which they refer to situations in which women lack freedom, i.e. an inability to

160 Section 2

leave; to disobey or ignore orders; or to start different social relations (by moving elsewhere). To start to answer the question of the relationship between internal and external violence, Graeber and Wengrow provide examples of kings who produced spectacular violence, and who modelled their sites of power – their courts or palaces – on patriarchal households and vice versa (Graeber and Wengrow 2021, 508). The link between the patriarchal household and the court or palace is examined to show that they both contain intimate situations in which care is given to those who dominate (and not to just children or others who need it at different points in their lives). As Graeber in his anthropological analysis of more contemporary societies in “The People as Nursemaids of the King: Notes on Monarchs as Children” and “Women’s Uprisings, and the Return of the Ancestral Dead in Central Madagascar” (Graeber and Sahlins 2017, ch. 5) illustrates, such care giving is potentially infantilis­ ing of the sovereign. In the workplace, this “care” of an authority figure raises issues about workplace “flunkies,” not always women, whom Graeber also discusses in Bullshit Jobs: A Theory (Graeber 2019). Just as with the traditional role of women in the home, flunkies soothe feelings in ways that are not reciprocated, reinforcing an ignorance of others in the “superior.” Monarchs, employers, and patriarchs have tantrums, like children, and claim care without reciprocating when they are able to do so. Graeber comments that, whereas parenting has an end goal of producing an adult, the royalty were viewed as perpetually childish.9 Further, Graeber and Wengrow (2021, 513) suggest that the patriarchal family and the kingdom “shared a common model of subordination.” They comment that, Each was made in each other’s image, the patriarchal family serving as a template for the absolute power of kings and vice versa. (Graeber and Wengrow 2021, 513) They thereby prompt an analysis – not only of intimate relations – but of a relationship between care and violence that does not simply view them as opposites. While subjects in court – in common with women in a patriarchal household – have to provide unnecessary care, Graeber and Wengrow also highlight a curious reversal that is employed in rhetoric. They cite correspon­ dence from King James I of England (1598) who describes his subjects in terms that expressly associate his “care” of his subjects with violence as a form of “chastisement” (Graeber and Wengrow 2021, 514). This picks up the justifica­ tion of violence within the home as a husband’s feudal right, to be discussed in Chapter 12, which can be seen to mirror the sovereign’s right to “chastise” (or to “correct”) his or her subjects through violence. This rhetoric allowed King James I to reverse the actual situation by infantilising his subjects while also 9

In Bartky’s (1990) analysis of the Phenomenology of Oppression she makes a similar link to think about the experience of women who support such men.

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physically depending upon them like a child.10 His statement is also predicated on the idea that it is acceptable to subject children to violence. The idea that the despot’s court is modelled on the patriarchal family (and vice versa) raises two misuses of what is involved in giving care in a relation­ ship: (a) when it is demanded, without reason and acknowledgement, by sovereigns, husbands and also – I should add – employers (the three relation­ ships discussed by Pateman in the first half of this chapter); and (b) when each could claim a reversal or parody of reality, that their own violence is, in fact, “care.” In law, employers lost their feudal right to violence (in the transition from feudalism to capitalism) before husbands. However, in practice, they could expose their employees to extremely dangerous working conditions, without employees having the means or the legal rights to be able to litigate.11 This odd relationship between violence and care depends upon the vulnerability of bodies to both violence and as sometimes needing care. The way in which care and violence are juxtaposed complements Cavarero’s analysis, discussed in Chap­ ter 1. Cavarero forces us to recognise that the reference to vulnerability in con­ tinental philosophy is dominated by the image of concentration camps, when the ordinary, everyday image of caring for infants should be a more obvious example. As discussed in Chapter 1, she views this “male trope” as an example of a broader problem, i.e., the way that metaphysics has been dominated by thinking death and not birth philosophically: [Cavarero] is not content to fall into the biopolitical trap of only focusing on the violence enacted on “bare life,” seeing this as a reiteration of a masculine trope central to metaphysics that can only understand humanness through a being-towards-death. (Huzar and Woodford 2021, 36)

Conclusion Pateman focuses on the seventeenth and eighteenth centuries in order to show how the social contract theorists, excluding Hobbes, refused to extend to 10 This rhetoric by King James I harks back to the image of sovereigns as deriving authority through God, which, for Filmer, was viewed as occurring via Adam and through a line of fathers. As Pateman (1988, 85) discusses, Locke ([1689a] 1988) argued for the separation of paternal from sovereign power. In contrast to Locke, King James I relied on the link between sovereign power and the power of fathers. While making the more radical point by undermining the idea of the divine right of kings, Hobbes does characterise the family in civil society as akin to mini-state and does not try to create a different view of public and private power (Hinton 1968). 11 It was only with Smith v Baker & Sons [1891] AC 325 that employees were not viewed as consenting to work in unsafe conditions and hence could not claim under the tort of negligence. Other defences included contributory negligence (in any small way by the employee) as a full defence; and the harm being caused by another worker.

162 Section 2

women their radical thought that politics is a human creation. Instead, they continued to view women as natural subordinates. Pateman was drawing out the implications of this thought for politics in 1988. If anything, her continuing work is even more relevant today as neo-liberalism continued to rise to promi­ nence in the intervening years. Locke’s image of property in the person – while it has lost its basis in the duty to God to preserve oneself and others (unless there is a conflict with self-preservation) – has been transformed as a neo-liberal right over oneself (see also Okin 1989b and Coleman 2005 for analyses of Locke compared to Nozick). My reason for considering the evidence for diverse early states of nature is that the analysis of “primordial” domination and freedom suggested by Graeber and Wengrow overlaps with Pateman’s analysis of freedom. As a result of their analyses, all reject pessimism regarding the possibility of the existence of societies with greater freedom. For Graeber and Wengrow, this entails an analysis of domination as the counterpart to freedom. For Pateman, freedom entails participative democracy, i.e. the ability to have a say in decisions that affect your everyday life. Both attack relationships characterised by domination in ways that undermine the public/private divide. What undermines domination and increases freedom? To answer this question, Graeber and Wengrow consider urban populations, such as the Teotihuacan in the Valley of Mexico, who initially started to adopt mon­ archy and raised Pyramids of the Sun and Moon, only to drop this project to concentrate on a program of social housing for ordinary people. As Graeber and Wengrow point out, the opposite direction can be taken, starting with neighbourhood councils and ending up being ruled by “war-like dynasts,” for example in Early Dynastic Mesopotamia (Graeber and Wengrow 2021, 517). They also raise feminist questions about the way that the courts of despots resembled the patriarchal family and the link between internal and external violence, such as “wife beating” and war. In positive terms, they note that there are societies that managed to avoid violence over extended periods of time. For Pateman, what perpetuates subordination in modernity is the idea of property in the person that arose in the seventeenth and eighteenth century. Her focus on the relationships governed by contracts of marriage, employ­ ment (or now more unstable gig work) and sovereign/subject tracks these areas of subordination and their continued developments with the further rise of neo-liberalism. However, she also provides plenty of examples that fit with Graeber and Wengrow’s analysis because they entail practical moves towards participative democracy at a time when the prospect of such democracy has been severely undermined. These examples involve facilitat­ ing the ability of ordinary people to be able to leave workplaces both within and outside the home, to refuse or ignore orders, and, ultimately, to create different social ties.

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Bibliography Bartky, Sandra Lee. 1990. Femininity and Domination: Studies in the Phenomenology of Oppression. London: Routledge. Bauman, Zygmunt, and David Lyon. 2013. Liquid Surveillance: A Conversation. Chi­ chester: Wiley. Berlin, Isaiah. 2002. “Two Concepts of Liberty.” In Liberty: Incorporating Four Essays on Liberty, edited by Henry Hardy, 2nd ed., 166–217. Oxford: Oxford University Press. Blackstone, William. 1765. Commentaries on the Laws of England: In Four Books. Oxford: Clarendon Press. Butler, Judith. 1999. Gender Trouble. New York: Routledge. Castel, Robert. 1995. 2002. From Manual Workers to Wage Laborers: Transformation of the Social Question. Edited and translated by Richard Boyd. New Brunswick NJ and London: Transaction. Coleman, Janet. 2005. “Pre-Modern Property and Self-Ownership Before and After Locke: Or, When Did Common Decency Become a Private Rather than a Public Virtue?” European Journal of Political Theory 4 (2): 125–145. https://doi.org/10.1177/ 1474885105050446. Federici, Silvia. 1975. Wages against Housework. Bristol: Falling Wall Press. Federici, Silvia. 2004. Caliban and the Witch. Autonomedia. Fraser, Nancy, and Linda Gordon. 1994. “A Genealogy of Dependency: Tracing a Key­ word of the U.S. Welfare State.” Signs 19 (2): 309–336. https://doi.org/10.1086/494886. Fukuyama, Francis. 2011. The Origins of Political Order: From Prehuman Times to the French Revolution. New York: Farrar, Straus and Giroux. Gilman, Michele. 2020. “Poverty Lawgorithms: A Poverty Lawyer’s Guide to Fighting Automated Decision-Making Harms on Low-Income Communities.” New York: Data & Society. Graeber, David. 2019. Bullshit Jobs: A Theory. London: Penguin. Graeber, David. 2020. Anarchy – in a Manner of Speaking: Conversations with Mehdi Belhaj Kacem, Nika Dubrovsky, and Assia Turquier-Zauberman. Diaphanes. Graeber, David, and Marshall David Sahlins. 2017. On Kings. Chicago: Hau Books. Graeber, David, and David Wengrow. 2021. The Dawn of Everything: A New History of Humanity. London: Penguin. Greenwald, Glenn. 2014. No Place to Hide: Edward Snowden, the NSA and the Sur­ veillance State. London: Penguin. Hinton, R.W.K. 1968. “Husbands, Fathers and Conquerors.” Political Studies 16 (1): 55–67. Hobbes, Thomas. 1651/1668. 1994. Leviathan: With Selected Variants from the Latin Edition of 1668. Edited by Edwin Curley. Indianapolis: Hackett. Hochschild, Arlie, and Anne Machung. 2012. The Second Shift: Working Families and the Revolution at Home. London: Penguin. Huzar, Timothy J., and Clare Woodford. 2021. “Introduction: Adriana Cavarero, Fem­ inisms, and an Ethics of NonViolence.” In Toward a Feminist Ethics of Nonviolence, edited by Timothy J. Huzar and Clare Woodford, 7–32. New York: Fordham Uni­ versity Press. https://doi.org/10.2307/j.ctv11990m1. Lewis, Sophie. 2021. Full Surrogacy Now: Feminism against Family. London: Verso. Locke, John. 1689a. 1988. “First Treatise.” In Locke: Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press.

164 Section 2 Locke, John. 1689b. 1988. Locke: Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press. Locke, John. 1689c. 1988. “Second Treatise.” In Locke: Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press. Lugli, Federico, Giulia Di Rocco, Antonino Vazzana, Filippo Genovese, Diego Pinetti, Elisabetta Cilli, Maria Cristina Carile, et al. 2019. “Enamel Peptides Reveal the Sex of the Late Antique ‘Lovers of Modena.’” Scientific Reports 9 (1): 13130. https://doi.org/ 10.1038/s41598-019-49562-7. Macpherson, Crawford Brough. 1962. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford: Clarendon Press. Mill, John Stuart. 1869. 1984. “The Subjection of Women.” In Essays on Equality, Law, and Education, 21: 261–341. In The Collected Works of John Stuart Mill. Toronto, Buffalo and London: University of Toronto Press and Routledge & Kegan Paul. https:// oll.libertyfund.org/title/mill-the-collected-works-of-john-stuart-mill-volume-xxi-essays-o n-equality-law-and-education. Murphy, Jeffrie G., and Jean Hampton, eds. 1988. Forgiveness and Mercy. Cambridge: Cambridge University Press. Neave, Marcia, Patricia Faulkner, and Tony Nicholson. 2016. Royal Commission into Family Violence: Summary and Recommendations. Melbourne: Victorian Government Printer. Okin, Susan Moller. 1989a. “Justice as Fairness: For Whom?” In Justice, Gender, and the Family, 89–109. New York: Basic Books. Okin, Susan Moller. 1989b. Justice, Gender, and the Family. New York: Basic Books. Pateman, Carole. 1988. The Sexual Contract. Cambridge: Polity Press. Pateman, Carole. 1989. “Feminist Critiques of the Public/Private Dichotomy.” In The Disorder of Women, 118–140. Oxford: Polity. Pateman, Carole. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts.” The Journal of Political Philosophy 10 (1): 20–53. http s://doi.org/10.1111/1467-9760.00141. Pateman, Carole, and Charles W. Mills. 2007. Contract and Domination. Cambridge: Polity Press. Pateman, Carole, and Charles W. Mills. 2010. “Contract Theory and Global Change: The Intersections of Gender, Race and Class.” In Sexuality, Gender and Power: Intersectional and Transnational Perspectives, edited by Anna G. Jónasdóttir, Valerie Bryson, and Kathleen B. Jones. London: Routledge. https://doi.org/10.4324/9780203834916. Pinker, Steven. 2012. The Better Angels of Our Nature: A History of Violence and Humanity. London: Penguin. Polanyi, Karl. 1944. 1957. The Great Transformation. Beacon Paperback no. 45. Boston: Beacon Press. Preciado, Paul B. 2008. 2013. Testo Junkie: Sex, Drugs, and Biopolitics in the Pharma­ copornographic Era. Translated by Bruce Benderson. New York: The Feminist Press at the City University of New York. Preciado, Paul B. 2020. An Apartment on Uranus. Translated by Charlotte Mandell. New York: Semiotext(e)/Foreign Agents. Rawls, John. 1971. 1999. A Theory of Justice. 2nd ed. Oxford: Oxford University Press. Rousseau, Jean-Jacques. 1754. 1992. “Discourse on the Origins of Inequality.” In Discourse on the Origins of Inequality (Second Discourse); Polemics; and, Political Economy, translated by Judith R. Bush, Roger D. Masters, Christopher Kelly, and Terence

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Section 3

Chapter 9

Introduction to Section 3 Law and Intersections

In this final section of the book, I introduce the next three chapters that focus specifically on law: two chapters on the basis for law in relation to privacy; and one on what are termed the “wrongful birth” cases. Rather than drawing on traditional jurisprudence, I employ feminist philosophical approaches, mainly those discussed in the first two sections of this book – on feminist relational ontology, and on social contract theory – to analyse legal problems. In addition, I draw on Spinoza’s Ethics. While I do not have a separate section on Spinoza in this book, the framework in his Ethics cuts across much of my work, as illustrated in this section by the chapter that applies his Ethics as a guide to common law judges as to which material should be kept private and which should be publicised. I also consider the extent to which there is overlap between the three sections of the book, focused on the way that subalterns have been treated as monstrous aberrations of the norm.

Introduction The final three chapters focus on the following areas: the “wrongful birth” cases in tort law; an application of Spinoza to consider the ethical grounds for privacy law; and an analysis of Warren and Brandeis’ famous “The Right to Privacy,” particularly in relation to gender and race. To introduce these chap­ ters, I will outline them and draw out their intersections. (For my other appli­ cations of feminist theory to privacy law, see Richardson 2009; 2011; 2012; 2014a; 2014b; 2015; 2020.)

Wrongful Birth Cases The next chapter focuses on the so-called “wrongful birth cases” that arise when negligent surgery or advice regarding sterilisation operations is given to the plaintiff (or the plaintiff’s partner). As a result of the doctor’s negligence, plaintiffs in these cases relied on the sterilisation being effective and so did not use other forms of contraception. This resulted in the plaintiffs becoming pregnant and giving birth. In some cases the sterilisation was motivated by DOI: 10.4324/9780429329678-12

170 Section 3

financial problems associated with the size of their existing family. The litiga­ tion for compensation for pain and suffering that arose from their pregnancy and birth, along with medical costs, and loss of earnings were relatively minor and were generally awarded by the courts. However, the costs for the upkeep of the child were substantial and more controversial, despite the fact that this compensation would follow from the usual application of the principles of tort law. To assess damages the general rule is to aim, as much as is possible, to put plaintiffs in the position that they would have been in had the tort (in this case, negligence) not occurred. It is clear that the plaintiff would not have incurred these costs, had the doctor not been negligent because one of the couple would have been sterilised as intended. It is striking that, in the UK some senior judges and commentators ignored the usual precedent in tort law in these cases because of their specific views about women and birth, as I outline briefly below and detail in Chapter 10. For example, in the leading UK case of McFarlane v Tayside Health Board [2000],1 Lord Millett viewed the birth of a child as always a blessing that should not be the subject of compensation, despite the fact that avoiding pregnancy was clearly the aim of the female plaintiff. A disturbing corollary of this approach occurs when judges have (rightly) awarded compensation to cover the upkeep of a child with a disability born in these circumstances and this (wrongful) framing appears to portray their birth (wrongly and offensively) as less than a blessing. Also concerning are the attitudes to women’s agency (that fit with the attitude that losses that are specifically those of women are to be treated as “special cases” to deny them justice). It is important to understand some of the judges’ reasoning because of what it tells us about their attitudes to women in the year 2000, when the case was decided. The UK position can be compared with a more thoughtful (and just) approach by the Australian High Court, Cattanach v Melchior (2003)2 In par­ ticular, Justice Kirby pointed out that the child represents an extra mouth to feed and that it does not treat a child as a commodity to recognise the reality of this fact. In doing so, he provides an additional example of the ways that the introduction of the exchange of money into a relationship is understood in dif­ ferent circumstances, discussed in Chapter 5. In his ruling in the Australian High Court, Justice Kirby states, Keeping in mind the financial costs of the care of the child, the allowance for the costs of child-rearing is hardly exceptional in terms of common law principle. To deny it would be. Any such denial would be arbitrary. (Kirby J in Cattanach v Melchior (2003))3

1 2 3

McFarlane Tayside Health Board [2000] 2 AC 59.

Cattanach v Melchior (2003) 215 CLR 1.

Cattanach v Melchior (2003) 215 CLR 1, para 180 (Kirby J).

Introduction to Section 3 171

The Australian High Court also viewed it as illogical to compensate for the pain and suffering of child birth but not the costs arising from the costs of bringing up a child. In Chapter 10, I ask, what is at stake when judges assume that women would be only too glad to have children (even though they had wanted their partner to be sterilised)? Note that, even if the plaintiff does later enjoy motherhood, which is not guaranteed, the refusal of compensation is not a usual legal principle. For example, if a miner is compensated for an injury in the workplace, this compen­ sation is not reduced if he enjoys the extra time in the sunlight. In other words, it is not usual in tort law to deduct from the compensation a monetary sum that represents any pleasures that incidently arise from the defendant’s negligence. One worrying aspect of this approach to law is the way that women’s life plans and decisions become irrelevant when judges view birth as something women always naturally want, despite their obvious aims, regarding the ster­ ilisation operation. Some judicial and commentators’ reasoning illustrates the arguments made by feminist philosophers discussed throughout the book, that there is an awkwardness about women’s agency and legal claims. It is as if there were a gut reaction – a shock experienced by these male judges – when it comes to women’s legal actions. In this case, this gut reaction appears to be because women’s life plans – other than to give birth – are characterised as against nature. As I explore in Chapter 10, some judges depended on the tele­ ological argument that basically, “having children is what women are for”; that even if they initially did not want to have another child, they enjoyed it really so no harm has been done. Women’s stated aims and desires were viewed as irrelevant and so overriding them is even characterised as subjective rather than objective harm. In Chapter 4, I criticised the idea that “giving birth is what women are for,” i.e. that any of us are born to fulfil a specific purpose, considering this argument in the context of Spinoza’s broad critique of teleology. This teleological judge­ ment about women is associated with religion, the idea that God had a plan for women and the plan certainly did not involve their freedom. While the philo­ sophers whom I have considered in previous chapters have held more radical conceptions of politics, it is still worth pointing out when the basic tenets of liberal democracy are not applied to women. It is a very basic requirement of judges in liberal democracies that individuals have rights and should not have judges’ views of morality (their image of “the good”) imposed upon them, as occurred in the wrongful birth cases. I contrast the image of the individual in modernity, who is capable of making choices about his life plan, with those in pre-modern times, in which people were born into a particular role in, what was viewed as, a natural hierarchy. With modernity, there became a wider range of life choices that can be pursued. However, when it comes to women’s decisions, the UK judiciary treated women as living in pre-modern times, denying them the basic respect for self-determination that “liberal democracies” accord to men.

172 Section 3

In Chapter 8, I also discuss the way that women are viewed as “special” in the workplace such that they have not been accorded equal pay and rights. Just as the wrongful birth cases focus on the naturalness and “joy” of birth, even when a woman wanted her husband’s sterilisation, so there is a view that “women’s care work” in the home has been viewed as natural. It is char­ acterised as priceless and therefore, in reality, worthless, as illustrated by the feminisation of poverty with the breakdown of families in the West. The same has applied to care work outside the home, which is both underpaid and undervalued. This evaluation is in contrast with highly paid prestigious jobs, many of which have been evaluated by the people performing them as either a waste of time or actually harmful (Graeber 2019). It is in this context that Reg Graycar (2012) illustrates how women have received lower damages in com­ pensation for negligently caused serious injuries. The head of damages based on “loss of future earnings” is based upon an estimation of what the injured plaintiff would have earned had she not been injured by the defendant’s negligence. (For example, if she had a fatal disease and was dying anyway then the award for loss of future earnings would be lower than if she was estimated to have a full working life ahead of her.) Even highly successful women have had their damages reduced on the stereotyped basis that they would leave work early to look after children or that they would have the expenses of a nanny, which is not deducted from men’s damages in similar circumstances. This has occurred even when this was against the women’s stated intentions, as illustrated by the case of Maree Wynn, who was a senior employee of American Express and had sustained a “meteoric” rise in the company by age 32 when the accident occurred. The New South Wales Court of Appeal decision in Wynn v NSW Insurance Ministerial Corporation (1995)4 made a large deduction on such stereotyped grounds. This case was over-ruled by the High Court, which criticised the judgement as one based on her sex. This sets a useful precedent, albeit in an extreme case. However, it should be noted that negotiations over damages are usually settled outside of court (to avoid the risk of further costs, stress, and delay) and so any continuing sexist assumptions may not come to light. These cases provide an example of the ways that discrimination can occur in the application of law that ostensibly appears gender neutral.5

Spinoza on Privacy Turning to Chapter 11, I employ Spinoza’s Ethics as a guide to think about privacy law. In particular, I use it to consider the vexed question of how judges should draw the line between the need for free speech and the importance of avoiding the harm that arises regarding invasions of privacy. 4 5

Wynn v NSW Insurance Ministerial Corporation (1994) Aus Torts Rep 81–304 (NSW Court of Appeal) overturned by Wynn v NSW Insurance Ministerial Cor­ poration (1995) 184 CLR 485 (High Court of Australia). For a discussion of these cases, see Graycar (2012)

Introduction to Section 3 173

While Carole Pateman (2002) (rightly) has argued that some ethical positions close down what should be understood as political analyses, considering John Rawls as an example, there are also problematic political frameworks that appear unethical, when applying Spinoza’s Ethics. Spinoza’s Ethics also has political implications (see, for example in a feminist context, Gatens (1996)). I employ Spinoza’s Ethics to critique neo-liberals who characterise both prying and privacy in terms of markets (Richardson 2015, ch. 5). Neo-liberals envisage a market in prying (such as that carried out by the press, along with black­ mailers) and an opposing market in privacy. Human friendships are also viewed in terms of a market. From this perspective, the harm that people experience when their privacy is threatened or breached is not given appropriate recogni­ tion because neo-liberals characterise such privacy as akin to false advertising; as a way of cheating a potential “market in friends” by disguising your flaws. This is a very peculiar way of viewing ourselves that lies in contrast with international human rights legislation, such as EU and UN law that describes privacy as a human right. The neo-liberal approach underestimates the harm that arises when people are denied privacy, not only psychologically in terms of potential humiliation and self-monitoring, but also politically when those in a society feel the need to conform because of surveillance, which in the US involves both major technology companies and the state (Greenwald 2014). I employ Spinoza’s Ethics to draw the line between what should and should not be kept private. Within Spinoza’s ontology, as explained in Chapter 4, everything that exists endeavours to flourish. When human beings are able to understand our encounters we can advance from inadequate to adequate knowledge. This in itself gives us joy, as I discussed in Chapter 4, when situating Cavarero’s joy in political action while taking part in political demonstrations with the Sardines. In Chapter 11, I turn again to this central aspect of Spinoza’s Ethics to address the following question: when should information be classed as private and when should it be communicated? My Spinozist answer is to ask whether publication of the infor­ mation would increase our adequate understanding of the world or whether it would increase our inadequate knowledge, which is often accompanied by strong emotions. For example, research that allows for better medical insights should be made available to other researchers because it increases their understanding. In contrast, there must be an awareness that part of subordination has entailed degrading representations of subalterns; that even representations of women’s bodies in certain circumstances is experienced as degrading per se and associated with public mockery in different cultures, as I trace in Chapter 12. Medical infor­ mation can be used to degrade in ways that draw on and reinforce the sting of subordination, as illustrated by the hacking of medical insurance data, accom­ panied by a ransom note in Australia in 2022, when personal details in relation to abortions, amongst other sensitive information, were published. Nobody should have to feel ashamed in this context and while many women know this intellec­ tually, it remains a sensitive area because of misogynist cultural responses against reproductive justice.

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Spinoza’s Ethics therefore suggests guidelines for law in trying to ensure the circulation of information that increases our understanding. At the same time, Spinoza’s framework in Ethics suggests the need to remove from circulation information that decreases our powers of acting, such as hate speech. As I dis­ cussed in Chapter 4, practices of subordination, in themselves, undermine our understanding, not only because people are viewed as monstrous aberrations, but also because hate speech undermines our ability to communicate. Such practices result in some voices being silenced or not being respected. As I dis­ cussed in more detail in Chapter 4, anything that increases subordination in turn undermines groups’ powers of acting because they lose the insights of those who are silenced, belittled, or ignored. I will end this summary of my use of Spinoza in this final section with a brief overview of my applications of Spinoza’s Ethics that run throughout this book. In the first section, the work of Spinoza – and feminist approaches to Spinoza, such as the work of Moira Gatens (Gatens 1996; Gatens and Lloyd 1999; Gatens 2009) – is intertwined within my examination of feminist conceptions of self and relationality. In Chapter 4 of that first section, I bring out important arguments by both Adriana Cavarero and Christine Battersby by considering their work through Spinoza. This analysis includes Spinoza’s critique of uni­ versals as a cognitive error, which can be viewed as a political problem when positioned in the context of Battersby’s and Cavarero’s own attacks on false universals. In the second section, I include a chapter on Jean Hampton’s employment of the social contract in which she examines the “moral” position of Hobbes with Kantian morality. Instead of this false choice and relevant to her arguments in this second section, I have added a different view, this time of Spinoza’s Ethics – which contrasts with both Hobbes and Kant (Richardson 2009, ch. 3). In the third section, as just discussed, I apply Spinoza’s Ethics to the problem of deciding when information should be kept private.

Readings of Warren and Brandeis’ “The Right to Privacy”: Gendered and Raced Bodies I continue to consider privacy law in Chapter 12, in which I examine the most influential paper on privacy: “The Right to Privacy” that of Warren and Bran­ deis (1890) published in the Harvard Law Review. I draw attention to the fact that in their detailed analysis of common law cases, which could provide potential precedents for a privacy tort, Warren and Brandeis ignore a set of domestic violence cases. These cases had developed from 1871, only 19 years before Warren and Brandeis’ article. I also discuss the relation of gender and race to photographs in the US at a time when the Kodak camera was invented in 1888, two years before Warren and Brandeis’ “The Right to Privacy.” My analysis of the relevance of the domestic violence cases draws from Sie­ gel’s “The Rule of Love” (Siegel 1996) to inform my reading of Warren and Brandies’ “The Right to Privacy.” In an important feminist analysis of the

Introduction to Section 3 175

development of the law in nineteenth- century America, Siegal analyses the judicial reaction when – as a result of work by both feminists and the tem­ perance movement – the strength of public opinion challenged the existing law that husbands had immunity from prosecution (and, later, being sued in tort) if they subjected their wives to the common law tort (and crime) of battery. This was only subject to the proviso that she suffered no permanent injury. This husbands’ immunity was based upon a feudal right of chastisement (or “cor­ rection”), a prerogative that had also applied to the master’s battery of his apprentices and to the sovereign, as discussed in Chapter 8. From the 1870s husbands’ prerogative regarding such violence against their wives sat uneasily with the growing idea of the unequal but nevertheless “sentimental” family. This image of the family, as a sanctuary for husbands from the demands of life outside the home, is mentioned as part of Warren and Brandeis’ “Whig history” of the developments of the common law. They associate these demands for privacy in the home with the greater complexity that arises with greater “civi­ lisation” and are clearly talking about men’s rights, as I illustrate in Chapter 12. As Siegel (1996) details, the need for privacy of the domestic home came to replace the husbands’ prerogative to batter their wives. In this way, husbands’ immunity to legal intervention was maintained by simply swapping the justifi­ cation that courts’ used to allow domestic violence to go unchecked. Despite the fact that Warren and Brandeis must have been aware of these cases that started only 19 years before their article, and their detailed case analysis of other pre­ cedents related to courts’ arguments in support of privacy, they omit to mention them. In this section, both the wrongful birth chapter and the chapter on Warren and Brandeis and privacy, illustrate problems for women in litigation employ­ ing tort law. These problems of appearing aberrant often apply to all subordinated groups. Without thinking through the problem, privileged men – especially those with power, such as judges – can easily be dismissive of (and perpetuate) the ways that law fails others. These subalterns are then simply characterised as “special cases” to justify judges’ refusal to use normal legal principles. This also applies in the wrongful birth cases in which the UK judges failed to follow usual precedent to women’s disadvantage because it just seems wrong to them. In Spinozist terms, this judicial “gut reaction” is viewed as the experience of emotions that accompany inadequate knowledge. It can occur when someone feels challenged by an argument that undermines their accepted views, particularly of themselves. This is why it is important to try to think about the causes of such a reaction. Moira Gatens (1996, ch. 8) provides a useful illustration of this approach in her Spinozist analysis of the judiciary. What is at stake is the move beyond individual blame based on ideas of free will, for example. This returns us to the problem of how to conceptualise progressive social change, that Battersby describes as akin to a “lightning strike,” as discussed in the first section of this book. I have discussed the reactions to such a political

176 Section 3

shift, as illustrated by the trade unionist who explained to me that, many years earlier, he included jokes about rape in the trade union magazine. He was hor­ rified and felt estranged from the person that he used to be, before social values, including his own, had changed. I discuss his reaction in Richardson (2020). Another legal mechanism, in addition to treating subaltern’s cases as “special cases” through which progressive change is stymied, is what Siegel (1996) calls “maintenance through transformation” that I detail in Chapter 12. This concern with thinking about the importance of social change – of the ability to undergo a gestalt shift that recognises that subalterns are not monstrous aberrations – picks up another theme that runs through this book. This starts with my discussion of the relational ontologies of Battersby and Cavarero in the first section, through to my analysis of feminist perspectives on the social contract, and finally in this section on law. I have focused on the frameworks of philosophers who added to our understanding of subordination; who go beyond critique to create new philosophies that contribute to radical changes in our social relations.

Bibliography Gatens, Moira. 1996. Imaginary Bodies: Ethics, Power and Corporeality. London: Routledge. Gatens, Moira, ed. 2009. Feminist Interpretations of Benedict Spinoza. Re-Reading the Canon. University Park PA: Pennsylvania State University Press. Gatens, Moira, and Genevieve Lloyd. 1999. Collective Imaginings: Spinoza, Past and Present. New York: Routledge. Graeber, David. 2019. Bullshit Jobs: A Theory. London: Penguin. Graycar, Regina. 2012. “Damaging Stereotypes: The Return of Hoovering as a Hobby.” In Feminist Perspectives on Tort Law, edited by Janice Richardson and Erika Rackley, 205. Abingdon: Routledge. Greenwald, Glenn. 2014. No Place to Hide: Edward Snowden, the NSA and the Sur­ veillance State. London: Penguin. Pateman, Carole. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts.” The Journal of Political Philosophy 10 (1): 20–53. http s://doi.org/10.1111/1467-9760.00141. Richardson, Janice. 2009. The Classic Social Contractarians. London: Ashgate. Richardson, Janice. 2011. “The Changing Meaning of Privacy, Identity and Con­ temporary Feminist Philosophy.” Minds and Machines 21 (4): 517–532. https://doi. org/10.1007/s11023-011-9257-8. Richardson, Janice. 2012. “If I Cannot Have Her, Everybody Can: Sexual Disclosure and Privacy Law.” In Feminist Perspectives on Tort Law, edited by Janice Richardson and Erika Rackley, 145–162. Abingdon: Routledge. Richardson, Janice. 2014a. “Privacy.” In The Encyclopedia of Political Thought, edited by Michael T. Gibbons, Diana Coole, Elizabeth Ellis, and Kennan Ferguson. Chiche­ ster: Wiley. http://dx.doi.org/10.1002/9781118474396.wbept0829. Richardson, Janice. 2014b. “Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy.” Feminist Legal Studies 22 (3): 225–241. https://doi.org/10.1007/ s10691-014-9271-3.

Introduction to Section 3 177 Richardson, Janice. 2015. Law and the Philosophy of Privacy. New York: Routledge. Richardson, Janice. 2020. “Spinoza’s Conception of Personal and Political Change: A Feminist Perspective.” Law and Critique 31 (2): 145–162. https://doi.org/10.1007/ s10978-019-09255-6. Siegel, Reva B. 1996. “‘The Rule of Love’: Wife Beating as Prerogative and Privacy.” Yale Law Journal 105: 2117–2207. www.jstor.org/stable/797286. Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220.

Chapter 10

The Concept of Harm in Actions for Wrongful Birth Nature and Pre-Modern Views of Women

Both judicial and academic analysis of so-called “wrongful birth” cases, in which there is a negligence claim arising from the birth of a child that has resulted from negligent sterilisation or advice, can shed light upon prevailing attitudes to women. In particular, some judgements still reflect “pre-modern” beliefs that motherhood is women’s natural fate in life. Such a position thereby marginalises women’s intentions and life plans with regard to pregnancy and minimises the cost of care to the carer in having a child. This is in keeping with other negligence cases in which care in the home is not treated as having eco­ nomic worth. The view of what is “natural” is employed to deny agency to women and the way that harm is categorised as either “personal injury” or “socially constructed” mischaracterises these cases. Additionally, this pre­ modern view of women is associated with the claim that the wrongful birth cases concern only subjectively perceived harms. It is argued that this is based on a misunderstanding. The fact that an act over-rides a woman’s intentions does not thereby render it merely “a subjectively felt” harm. If she is treated as subordinate, as less than a person then the act raises a moral claim: that the courts should make her equality clear in public. Ironically, by referring to dis­ tributive justice rather than applying the usual rules of corrective justice in order to defeat Mrs McFarlane’s full claim for damages, the Law Lords failed to do justice at all.1

Introduction This chapter aims to draw out some of the prevailing attitudes to women that are demonstrated by the way that the harm in wrongful birth cases has been understood. In the wrongful birth cases, parents have brought negligence claims usually against a health authority or trust, on the basis that a faulty sterilisation 1

Reprinted by permission of the publisher (Taylor & Francis Ltd, www.tandfonline. com): The Australian Feminist Law Journal, “The Concept of Harm in Actions for Wrongful Birth: Nature and Pre-Modern Views of Women,” Janice Richardson, 2011.

DOI: 10.4324/9780429329678-13

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operation, or incorrect advice, has led to the birth of an (initially, at least) unwanted child. Where negligence has been shown, contentious questions have arisen as to how to characterise the harm and whether damages should be awarded for the upkeep of the child and for pain and suffering in relation to the birth. In this chapter, I criticise the reasoning employed by members of the Supreme Court (or House of Lords as it was at the time of the case).2 The Australian High Court has been more progressive in allowing women to take torts claims in a way that is consistent with the usual rules of torts law.3 The Australian High Court awarded damages for the upkeep of the child. Instead of viewing the head of damages as being the birth of a child, the majority characterised it as the legal and moral responsibilities that had arisen as a result of the plain­ tiff’s breach of duty. Kirby J commented that, Keeping in mind the financial costs of the care of the child, the allowance for the costs of child-rearing is hardly exceptional in terms of common law principle. To deny it would be. Any such denial would be arbitrary.4 I think that this is right and want to concentrate upon why the English position falls short, to examine the attitude that lies behind the refusal to award such damages. The main case in the area in the UK is the House of Lords decision in McFarlane v Tayside Health Board (1999)5 the first case of this type to come before the Law Lords. They unanimously decided that, provided a child is born healthy,6 awarding compensation for the costs of bringing up a child would not be “fair, just and reasonable.”7 However, the pain and suffering and incon­ venience associated with the pregnancy and birth plus loss of earnings and any medical expenses associated with the pregnancy were awarded with Lord Mill­ ett dissenting. The first section of this chapter analyses Lord Millett’s dissenting judgement to highlight how birth is seen as a natural event that most women want, even when the case presents clear evidence to the contrary. The way in which heads of damages are categorised as either “physical damage” or “socially constructed 2 3 4 5 6

7

Reference will be to the House of Lords and Law Lords, given when the case occurred. Cattanach v Melchior (2003) 215 CLR 1. Cattanach v Melchior (2003) 215 CLR 1, para. 180 (Kirby J). McFarlane v Tayside Health Authority H.L (1999) 3 WLR 1301; (2000) 2 AC 59. Compare with Hugh J and Gummow J’s judgement: “The reliance upon values respecting the importance of life is made implausible by reference to the postulated child as ‘healthy.’ The differential treatment of the worth of the lives of those with ill health or disabilities has been a mark of the societies and political regimes we least admire.” Cattanach v Melchior (2003) 215 CLR 1, para. 78. McFarlane v Tayside Health Board (2000) 2 AC 82 (Lord Steyn).

180 Section 3

damage” works to women’s disadvantage. The second section considers how the courts have consistently undervalued the cost of care to the carer, associated with this pre-modern view of women. The courts express a worry about com­ modifying life but have employed this and other arguments to systematically devalue child-care (and other types of care). The final section develops this argument by showing how the occlusion of women’s intentions is treated as producing only subjectively felt harm. In contrast, it is argued that the fact that there is a mental element (i.e. the women’s intentions not to have a child) does not in itself mean that there is no objective harm. If the doctor had deliberately botched a sterilisation operation and then had claimed that the resulting preg­ nancy had been a blessing in disguise, it would be more obvious that the fact that it involved over-riding the woman’s intention not to have children did not therefore render the harm subjective. I draw upon the work of Jean Hampton to argue that in this example there is objective harm because the surgeon would be holding himself out as of greater moral worth than the woman; able to impose his own views upon her as to what her life plans should be. The question then arises as to how to char­ acterise tort. Tortious acts can be viewed in terms of a sliding scale in which some situations do demonstrate an objective lack of respect, where they are closer to crime rather than to accidents. For example, if the doctor could not be bothered to take care. The failure to acknowledge this initial harm by both the defendant and the courts, i.e. to claim that such a fault by the defendant was a blessing upon the claimant, exacerbates the treatment of the woman as less than a free and equal person, able to decide her own life plans. This is a moral demand, which cannot be answered by the ironic argument that tort is not about this “type of justice.”

Pregnancy as a “Natural” Event: the Occlusion of Women’s Intentions In his dissenting judgement Lord Millett agreed with counsel for the Health Board’s defence that the pain and suffering in relation to pregnancy could not constitute a head of damage because pregnancy is a natural event. In a paper entitled “Physical Damage in Negligence” Christian Witting (2002) lends sup­ port to Lord Millett’s dissenting position in McFarlane by arguing that pain and suffering associated with pregnancy is not linked with actual damage to the body and hence compensation should not have been awarded, or at least not under the head of “physical damage.”8 He does open up the possibility of 8

For feminist analysis on Witting’s argument see: Nicolette Priaulx’s The Harm Paradox (2007, 33–36) and Joanne Conaghan’s (2003, 190–91) “Tort Law and Fem­ inist Critique.” There is also much scholarship on wrongful births, see, for example: Martha Chamallas and Jennifer B. Wriggins (2010) The Measure of Injury: Race, Gender and Tort Law, Barbara C. Steininger’s (2010) “Wrongful Birth and Wrong­ ful Life: Some Basic Questions.”

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damages being awarded by extending the meaning of “physical damage” to include “socially constructed” harm. Witting therefore draws a distinction between harm that is natural (i.e. personal injury) and harm that he terms “socially constructed.” He goes on to give another example of “socially con­ structed” harm: the loss of land value that arises when there is perceived risk to health associated with pollution. Instead of this rather strained analogy, I think that a better example to illustrate this position (held by Witting and Lord Millett) on wrongful birth is to compare it with rape. This is another harm that can occur without “physical injury” in Witting’s sense of the term but to clas­ sify it as “socially constructed” and to thereby underplay the extent to which it is intimately related to the body is to mischaracterise it. To introduce this argument I will explore the way in which Witting talks about what is “natural” by juxtaposing his arguments with those cited from rapists in rape trials. Some caution is required. I do not wish to imply that Witting or Lord Millett are in any way sympathetic to the views of rapists nor that wrongful birth and rape are at all comparable experiences. This is merely an exploration of a conceptual position, to consider some of the implications of a particular type of discourse about nature, which were clearly not intended in Witting’s paper. Compare the following comments: In McFarlane, the mother’s conception was an entirely natural event that her physiological constitution was designed to induce and to accommodate. (Witting 2002, 192) Women are made to have sex. (Scully and Marolla 1985, 261) Most women are only too glad to avail themselves of the opportunity to conceive and give to birth to children at some stage in their reproductive lives. (Witting 2002, 192–93) Having said no at first, she just gave in?

She enjoyed it.

JUDGE: The enjoyment wiped out her initial resistance – is that what you are

saying? DEFENDANT: Yes. (Alder 1987, 10) PROSECUTION COUNSEL: DEFENDANT:

Sex or pregnancy: it is natural and therefore it follows that it produces plea­ sure that women want even when they say no or think that their partner is sterilised. To be fair, Witting goes on to point out that Mrs McFarlane reacted badly to her unwanted pregnancy but then returns to his argument that,

182 Section 3

Her organs continued to function in the way that “nature intended.” (Witting 2002, 193) As I have argued previously (Richardson 2004; 2009, 137–42), by framing his analysis in this way “nature’s intentions” become relevant but Mrs McFarlane’s intentions are occluded. Implicit in Witting’s belief that, “the mother’s concep­ tion was an entirely natural event that her physiological condition was designed to induce and to accommodate” (Witting 2002, 192–93, emphasis added) is the view that sexual intercourse would also be a “natural event” that women’s physiological constitution is “designed to induce and accommodate” because how else is the pregnancy to occur? Therefore, the argument that Witting makes with regard to pregnancy also applies to sexual intercourse. This leaves Witting in the uncomfortable position of having to categorise rape itself as not “physical harm” but “socially constructed harm” a point that he does not dis­ cuss. This is because, in Witting’s terms, sex itself could be described “natural” and therefore not to be categorised as “physical injury.”9 Therefore, the ability of women to decide whether or not to reject pregnancy (or sex) is to be classified as “socially constructed” in this schema. This is an ontological position with regard to women’s rationality and is clearly distin­ guishable from the (correct) view that the content of the choice (with whom women decide to have sex and children, if at all) is socially constructed. This line of reasoning leads Lord Millett to characterise Mrs McFarlane’s injury as merely subjective. In other words, this framework leads to the view that to over-ride a woman’s intentions is not to perform an act that is objec­ tively harmful. As I will detail below, it even leads Witting to the odd ontolo­ gical claim that, in this context, women’s intentions do not exist in reality. A better way of conceptualising the harm in these cases focuses upon Mrs McFarlane’s “personhood” and her ability to form intentions and a plan of life, which fall from view within Witting’s classification of harm.

Kant and the Objectivity of Harm I want to draw upon Jean Hampton’s work, not because I support her Kantian arguments for retributive justice that are not the subject of my concern, but because she illustrates the point I want to make. This is the view that I am treating as an axiom: nobody is to be treated as subordinate.10 I will discuss 9

Joanne Conaghan highlights a similar problem in her discussion of the way that the Lords characterize the harm in another case: Waters v Metropolitan Police Com­ missioner (2000) 1 WLR 1607 HL. She states, “(I)t is impossible fully to appreciate the extent of the harm Ms Waters allegedly sustained unless we keep the rape very much in frame. In this context, the legal characterization of the harm as “mental” or “psychological” in character … is as ironic as it is misleading” (Conaghan 2002). 10 Hampton – like Kant – believes that she can ground this as an objective moral fact (Hampton 1998). I do not attempt such an ambitious project. My arguments about

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Hampton’s view of crime and then turn to her application to torts. Hampton (1991) argues that we feel more hurt by a crime (for example if someone intentionally breaks our legs) than by any equivalent pain that occurs by acci­ dent because we feel that the criminal has demeaned us.11 He or she has used us in a way that makes a statement to the world that we are not worthy of respect; that we can be treated as a means to an end. The criminal has thereby posi­ tioned him/herself above us. Hampton therefore argues that the public reaction, in particular the court’s reaction, which includes the punishment, should demonstrate to society that this was a false “statement,” that the victim is not actually less worthy of respect than the criminal. It is therefore objectively unjust when the courts do not demonstrate that they have taken seriously a rape or a racist crime. In such a situation, the courts themselves are providing a (second) demonstration that the victim is not to be treated with respect as equal in their society. This argument is predicated upon the “Kantian” view that there is no natural hierarchy and so everyone should be treated having (objectively) equal self worth and the right to have their life plans respected, which I will consider in more detail below. Whilst Hampton is providing a way of con­ ceptualising crime rather than torts, her emphasis upon a Kantian view of per­ sonhood (or, better, the view that nobody is to be treated as subordinate) provides a useful way of highlighting the way in which Lord Millett mis­ conceives the role of objectivity in McFarlane. Lord Millett argues that the harm of an unwanted pregnancy is merely “subjective.” He states, If the law regards an event as beneficial, plaintiffs cannot make it a matter for compensation merely by saying that it is an event they did not want to happen. In this branch of law at least, plaintiffs are not normally allowed, by a process of subjective evaluation, to make a detriment out of a benefit. (McFarlane v Tayside Health Authority (2000), italics added)12 In other words, in this branch of law, the state will be allowed to impose its view of the good upon women, thereby denying their ability to choose their own life plans. Hampton’s work on crime can be employed to highlight wrongful birth follow from this axiom. I use it to force opponents to admit that they do not agree with the axiom itself, i.e. that they are willing to treat women as a special case, as a subordinate, i.e. to flush out the implication of their arguments. It may be that this axiom as stated may be used to avoid questions of personhood, which is viewed as both universal and paradigmatically male, but the issue is not explored here. 11 See also Jeffrie G. Murphy and Hampton’s (1988) Forgiveness and Mercy. For my discussions on Hampton’s work see Chapter 6 and The Classic Social Con­ tractarians: Critical Perspectives from Feminist Philosophy and Law (Richardson 2009, 23–29, 41–44, 117–20). 12 McFarlane v Tayside Health Authority (2000) 2 AC 112.

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Millett’s confusion regarding objectivity and the way that it works to women’s detriment in a manner inconsistent with liberal democracy. I will therefore outline this in more detail and then return to apply it to the above quotation. Hampton distinguishes between the objective injury that is inflicted as a result of the crime, which lies beyond the physical injury sustained. What distin­ guishes a crime from an accident is that the criminal has used the victim, whom s/he treats as unworthy of respect as a person. This can be distinguished from the victim’s subjective evaluation of the injury. For someone who (rightly) recognises her own self-worth (who has not been taught that she is unworthy of equal treatment because of her gender or race, for example) a crime will demean her. She is hurt by the failure of the criminal to respect her as a person as well as by the effects of the crime. However, for someone who believes that she is not actually worthy of such respect then she would not feel demeaned by the criminal act because she accepts that this treatment, to be used by others, is her lot in life. In other words, in this case, the criminal accords her lesser treatment than she (objectively) deserves, based upon the axiom that all persons are of equal worth, but she (subjectively) did not appreciate this fact because of her low sense of self-worth. Hampton describes the victim in such a situation as being “diminished.”13 She genuinely (and wrongly) views herself as unworthy of respect as a person. Hampton illustrates this with the following comment: A rape counsellor once told me of a woman who failed to tell anyone that she had been raped by a man she knew because she thought this was the sort of thing women had to “take” from men. (Hampton 1998, 49) This is objectively wrong (both epistemologically and morally) for Hampton because she starts from the axiom that we are to be treated as free and equal persons worthy of respect. This argument has no bite against anyone who does not accept this axiom, of course, but he would have to make clear that he was basing his arguments upon a view of women as subordinate – a special type of human, who, as a result of her nature, does not have the ability to set her own life plans. There is another possible reaction to the crime in which the victim is made to feel diminished by virtue of the crime. In this situation, s/he initially felt that s/ he was of equal worth with all other persons but, as a result of the crime, stops believing that this is the case. For Hampton, following Kant, this is a subjective view because the victim again fails to recognise the objective fact of his/her equal worth. The harm of the crime in this instance is three-fold: first, objec­ tively, the criminal has treated the victim as of lesser worth than s/he should be accorded as a person; and, second, this has caused the victim to feel diminished 13 For an explanation of this aspect of Hampton’s work more broadly see Richardson (2007).

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in her/his own eyes; third, there are the effects of the crime, for example, the broken leg in the case of the battery example above. This way of thinking about the harm of crime resonates with the harm of rape, which has been associated with shame in many cultures. This is why, Hampton argues, there must be public recognition of this harm, which serves the purpose of acknowledging the victim’s equal worth, which was under attack as a result of the crime. In her discussion of criminal law, Hampton (1991, 395, n. 19) raises the issue of harm in torts law and keeps open the possibility of its application to torts law, whilst not examining it in detail. She states, A person wrongs another if and only if (while acting as a responsible agent) she treats him in a way that is objectively demeaning. (Hampton 1991, 395) She then mentions tort law in a footnote, This definition needs refinement … [T]he definition does not adequately distinguish between intentional harming that counts as wrongdoing, unin­ tentional harm that counts as wrongdoing (negligence) and unintentional harming that does not count as wrongdoing (e.g. accidents). Presumably the first two involve “objectively demeaning” treatment but not the third; however more analysis is needed to explain why this is so. (Hampton 1991, 395) In Hampton’s conception of harm, if someone is an unwitting participant in an accident then s/he does not hold him/herself out as on a higher footing than the victim. In contrast, failure to take care does carry with it the implication that the claimant was not worth the effort of carrying out treatment to a reasonable standard. There is a sliding scale in torts in which some actions are closer to crimes and some closer to accidents, and the lack of respect shown to the clai­ mant varies accordingly. For example, where tort is employed to deal with sexual wrongs then the fact that the defendant holds himself as superior to the victim is clear.14 To fail to award suitable damages in such cases is to allow the defendant’s claim to be superior to the victim to stand unchallenged. It is worth emphasising this point because it is too easy to claim that the only harm that occurs in the wrongful birth cases is in Mrs McFarlane’s mind and that torts law is simply about drawing lines in such cases. However, the fact that an element of the wrongful birth tort depends upon the over-riding of the plaintiff’s intentions does not render the harm merely subjective. This element of the argument can be illustrated by considering a couple of examples. Rape 14 See, for example, Adjin Tettey Elizabeth’s (2012) “Sexual Wrongdoing: Do the Remedies Reflect the Wrong?” For a useful discussion of this aspect of Kant in the context of personal relationships, see Onora O’Neill (1989, ch. 6).

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consists in over-riding someone’s intentions and forcing her/him to have sex. The fact that a mental element is necessary for the harm does not thereby render the harm merely a subjectively felt harm. It is an objective harm for Hampton (as for Kant) because it objectively treats someone with less respect than he or she deserves as a person. Similarly, if the doctor in McFarlane had intentionally botched the sterilisation operation then the fact that her pregnancy involved an over-riding of her intentions does not render the harm subjective. Again, it is the failure to treat her with respect that is the objective harm. Turning to wrongful births, negligence is not such a clear case of wrongdoing but not because of the mental element of “subjectively felt harm,” as illustrated by the above two examples in which this mental element is necessary and yet there is also objective harm. The distinction lies in the fact that the defendant’s act is not intentional. However, as argued above, it could be that the doctor in failing to bother to take care did not treat her with the respect she deserved as a person, thereby failing to respect her: an objective harm. For the defendant to argue that his actions were a blessing upon her compounds the lack of respect shown to Mrs McFarlane. Further, for the courts to fail to recognise that harm has occurred by con­ structing the events in such a way that marginalises Mrs McFarlane’s intentions is in itself degrading. The court thereby makes a public statement that fails to accord Mrs McFarlane the respect that she is owed as a person. What caused this failure of the House of Lords to do (what for Hampton is) their moral duty: to recognise that Mrs McFarlane has been objectively wronged? They failed because they marginalised her ability to set her own life plan. This involved a pre-modern view of women, i.e. the view that motherhood is not a choice but is a natural part of her life. As a result, the courts also failed to enquire into the extent of the repercussions of the unwanted pregnancy upon Mrs McFarlane’s life: the cost of care to the carer. There is much feminist work that highlights the way that the law is selective about the harms that it is willing to recognise, treating the male body and life­ style as the norm. Joanne Conaghan has been clear as to whose social experi­ ence tort law picks up to determine harm: [I]njury has a social as well as an individual dimension: people suffer harm not just because they are individuals but also because they are part of a particular class, group, race or gender. Moreover, their membership of that particular class, group, race or gender can significantly shape the nature and degree of the harm they sustain. The problem of law then is its failure to recognize that social dimension. Consequently, and in the context of gendered harms, it fails to offer proper redress.15

15 Joanne Conaghan’s (1996) “Gendered Harms and the Law of Tort: Remedying Sexual Harassment.”

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Note that the problem here is not simply that women have children and so just happen to be the ones to suffer these harms. The problem is that justice has not been done because the courts are blinded by the way that they characterise women as naturally wanting children irrespective of women’s stated aims. Hence, Mrs McFarlane’s ability to set her own life plan is not respected and the harm that has occurred has been treated subjectively. In addition, the disruption to her life as a result of the need for childcare is not understood or recognised. Despite his reference to subjective harm, the issue of autonomy is recognised in Lord Millet’s judgement, although inadequately, as I will discuss in the sec­ tion on autonomy below. It is perhaps most clearly spelt out in the UK in Lady Hale’s judgement in Parkinson v St James and Seacroft University Hospital NHS Trust when she states: To cause a woman to become pregnant and bear a child against her will was an invasion of that fundamental right to bodily integrity. (Parkinson v St James and Seacroft University Hospital NHS Trust (2002),16 italics added) Whilst there is a clear distinction between crime and tort, this analysis helps explain why I find Witting’s classification of harm as “socially constructed” or “natural” worrying. The idea of a society in which a woman’s decisions about whether to have a child, are not viewed as important (and hence to override them is not classified as an objective harm) is incompatible with respect for women as equal persons. The dichotomy between natural and socially con­ structed harm fails to capture what is essential about the nature of the harm and misleading in its analysis of what is viewed as subjective. In addition, the split between what is natural and socially constructed (and hence in Lord Millett’s view “subjective’) is difficult to sustain. The idea of “deleterious” change to the body is itself normative (see Priaulx 2007). Is female or male rape (without any other injury) to be classified as natural or socially constructed harm in this framework? I do not view rape as “natural” but nei­ ther is it well characterised by the idea of it being “socially constructed” in this context, because this appears to be a secondary type of harm, extending the definition of personal injury away from concern with the body. What is the position of ceremonial injuries to the body, which are not experienced by the individual as harm? It could be argued that “normal” pregnancy comes at a cost to the mother’s body and hence involves physical damage in comparison to a woman without children of her age, irrespective as to whether this is “normal” damage that is willingly undertaken. Epistemologically, Witting’s dichotomy between “natural” and “socially constructed” appears to commit him to a naive 16 Parkinson v St James and Seacroft University Hospital NHS Trust (2002) QB 284. I will return to the question of autonomy, which differs from “bodily integrity,” below.

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view that we passively perceive the world as it is (without learning to categorise our perceptions according to cultural norms). Hampton’s position relies upon the need to accept the Kantian proposition that there is no natural hierarchy. Hampton recognises that we tend to slide from a Kantian view that we are of equal moral worth to a Hobbesian view that our worth is merely to be understood as our value to others, or our price.17 It is difficult to maintain a sense of self-worth if the activities that one is involved in are not valued, as is the position of care workers, to be discussed in the next section.

The Devaluing of Childcare Witting’s analysis is only concerned with the question of damages relating to pregnancy and birth in the wrongful birth actions. The majority of the Lords, particularly Lord Steyn, were willing to equate the physical events of pregnancy with personal injury.18 Having done so, they then had the problem of differ­ entiating the costs relating to the upbringing of the (initially) unwanted child with their award for pain and suffering and losses related to the pregnancy. They did so by arguing that the former damage represented pure economic loss, although it is difficult to see how this is not consequential upon the birth. As Hoyano (2002) points out, it is illogical for Lord Steyn to distinguish a sur­ geon’s “assumption of responsibility” for pre-natal loss of income and his/her “assumption of responsibility” for later costs of bringing up the child. In other areas of negligently performed surgery there is no need to show a separate duty of care in relation to future financial losses, such as future loss of income (Hoyano, 2002, 887). This was also the view of the Australian High Court in Cattanach v Melchior (2003).19 Similar points can be made with regard to the other proposed justifications for severing the costs of bringing up the child from the damages relating to the pregnancy and birth. As Lord Millett20 argued, it is not usual in the law of tort to refuse to award damages on the basis that the harm was out of all propor­ tion with the “seriousness” of operation – the position relied upon by Lord Hope. In addition, it is not a usual principle to offset different types of benefit and burden as the majority of the Lords attempted to do. For example, you do not say that a negligently injured miner should have reduced damages because he can now stay above ground and enjoy the open air in a public park.21 Yet 17 “The value or WORTH of a man is, as of all other things, his price, that is to say, so much as would be given for the use of his power, and therefore is not absolute, but a thing dependant on the need and judgement of another” (Hobbes [1651/1668] 1994, pt. I, ch. X, para. 16). 18 McFarlane v Tayside Health Authority (2000) 2 AC 74 (Lord Steyn).

19 Cattanach v Melchior (2003) 215 CLR 1.

20 McFarlane v Tayside Health Authority (2000) 2 AC 101 (Lord Millett).

21 McFarlane v Tayside Health Authority (2000) 2 AC 103 (Lord Clyde).

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the majority of the Lords were willing to argue that the benefits of a child should be offset and yet were incalculable. To try to understand this is important because it uncovers particular atti­ tudes to women and their traditional role of childcare. Lord Steyn appealed to “distributive justice” to argue that the money that would be required to bring up a child would be better off left with the health service. As the Australian High Court made clear, this diverts from the usual legal principles. Part of the problem relates to the way in which childcare is understood. Is the extra care work associated with the negligently produced motherhood to be characterised as “natural,” linked with women’s status, or as a lifestyle choice, more akin to a job?22 Again, the question of Mrs McFarlane’s choice is central in this case. This conflict could be described as “pre-modern” (with an emphasis upon nat­ ural status, i.e. that childcare is women’s destiny in life) and “modern” (in which motherhood becomes viewed as a choice and as akin to a job). One of their Lordships’ worries was that they could be forced to offset the benefits of having a child (despite the fact that such an offset was not legally consistent with other cases). This was described as a problem of putting a value on human life and hence commodifying it, which they concluded was impos­ sible. If one shifts from a consideration of the birth of the child to focus upon the extra childcare work that is created then it is clear that such personal mat­ ters have already been “commodified” by the courts. The traditional work of women in the home, including the provision of housework, companionship, and sex has been given a price by the courts. In the UK, prior to its abolition by the Administration of Justice Act 1982 there was a head of damages in negligence that allowed men to be compensated for the “loss of consortium of a wife.” In 1952, the Lords refused to extend this common law claim to a wife whose husband had become impotent as a result of the defendant’s negligence. Lord Goddard made the historical position clear when in turning down the wife’s claim he stated that: The action which the law gives to the husband for loss of consortium is founded on the proprietary right which from ancient times it was con­ sidered the husband had in his wife. It was in fact based on the same grounds as gave a master a right to sue for an injury to his servant if the latter was thereby unable to perform his duties. It was an action of trespass for an invasion of the property right, which, arising from the status of vil­ leinage or serfdom, the master had over his servant. (Best v Samuel Fox and Co. Ltd. (1952))23 22 These do not exhausted the ways in which motherhood could be characterised, of course. However, the move from being akin to a feudal serf to the owner and seller of one’s labour power would be an improvement in women’s position in this area of law. 23 Best v Samuel Fox and Co. Ltd. (1952) AC 731–732 (Lord Goddard).

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In Australia, the courts made the progressive move of awarding the damages for negligently caused loss of a woman’s ability to do housework to the actual woman, but they then treated this head of damage as akin to a loss of satis­ faction in a hobby, thereby belittling its economic value.24 There have also been cases in which childcare has been given a value in UK courts. Under the Fatal Accidents Act 1976 a child can claim for “non financial dependency,” i.e. the lost care as a result of the death of the carer, usually the mother. The courts initially derived this sum based upon the cost of a nanny.25 They later rejected such calculation.26 Now that the judge considers what an award for a loss of a mother should be the payments are lower, indicating that women’s “natural” role is valued less than if it is framed as a commercial activity. The courts have been willing to put a figure upon the cost of childcare but have not been willing to view wrongful birth cases as a situation in which the woman has to provide such care (as extra work). The fact that the Lords were willing to ignore the usual principles of tort law in the wrongful birth cases is consistent with the devaluation of childcare in the fatal accident cases. Lady Hale notes that, It is, perhaps, an indication of the reluctance of the common law to recognise the cost of care to the carer that claims for wrongful conception and birth of healthy children have not previously been analysed in this way: thus in McFarlane’s case, no claim was made “in respect of any care or trouble undergone by the pursuers in the course of bringing up their child.” (Parkinson v St James and Seacroft University Hospital NHS Trust (2002))27 Lady Hale refers to the case of Hunt v Severs (1994)28 in which there was a successful claim by a claimant (who had suffered a personal injury as a result of the defendant’s negligence) for the value of care by a family member. She makes the point that in McFarlane the very person who was wronged provides the care in this case and could be compensated accordingly (although she then goes on to argue that the benefits and burdens of childcare are balanced). The inability of the court to be aware of the possible cases that will arise in relation to the disability of child and mother has been criticised: If the increasingly popular notion of “distributive justice” is to earn its keep, it must force judges beyond the mantra of treating like cases alike to thinking hard about the criteria of likeness – which involves, at least, 24 See Regina Graycar (2012) “Damaging Stereotypes: The Return of Hoovering as a Hobby.” This details over 20 years of her analysis of this area (see 1983; 1985). 25 Spittle v Bunnj (1988) 3 All ER 1031. 26 Stanley v Saddique (1992) 2 WLR 459. 27 Parkinson v St James and Seacroft University Hospital NHS Trust (2002) QB 287 (Lady Hale). 28 Hunt v Severs (1994) 2 AC 350.

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comparing and contrasting the case before the court with cases not before the court. Stumbling from one set of facts to the next is, as Rees shows, a formula for confusion and instability in the law. (Cane (2004))29 I would go further to argue that a consistent approach to distributive justice would require a more radical discussion of the aims of the law of torts in gen­ eral, possibly towards a no fault system. Less radically, “distributive justice,” based upon the allocation of resources in a community, would demand that the situation of Mrs McFarlane (poverty30 as well as disability) in these cases be considered. However, my main point is that to pick and choose “types of jus­ tice” to suit the outcome was unjust.

The “Loss of Autonomy” Head of Damage Before considering Lord Millet’s view of autonomy in the wrongful birth cases, I will start by examining the meaning of the term. Kant distinguishes autonomy (in which you are able to self-legislate) with heteronomy (in which you are under another’s tutelage). Whilst such individualism may be subject to critique (Priaulx 2004), the move of subsuming women’s autonomy within the family is a dangerous one for women. To subsume women’s “autonomy” within the family really means its opposite (the production of heteronomy or a relation­ ship of dependence). This is a denial of the enlightenment ideal of someone willing to think for his or herself as a person. The construction of women as dependent rather than autonomous has a long miserable history, representing the position of women under the doctrine of coverture, which included a denial of women’s intentions regarding whether or not they wanted to have sex with their husbands. It is consistent with Kant’s own personal ambiguity as to whe­ ther women could be viewed as “persons” (Battersby 1998). The term “persons” is employed here as a moral and political category and is based upon the ability to use reason in order to behave according to the moral law and to be a citizen. Kant’s concerns about the ability of women to behave morally and the need for male guidance have been ignored so far in this chapter. These views are not consistent with the framework of his analysis (that we – both men and women – should all be viewed as having equal worth as persons) employed by Hampton and discussed above. I will continue to use this framework irrespec­ tive of Kant’s actual views on women, stated in the non-critical works such as the Anthropology (Kant [1798] 1974), whilst recognising that there is a problem 29 Cane, Peter. “Case Comment: Another Failed Sterilisation,” in (2004) 120 LQR 189– 193 at 191. 30 Parkinson v St James and Seacroft University Hospital NHS Trust (2002) QB 284, for example, in which the financial strain on the marriage meant that Mr Parkinson left the family 3 months before the birth. The financial issue was not viewed as legally relevant.

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about the extent to which this taints the framework itself, which is outside of the scope of this chapter. Kant’s concern was that the need for material support means that indepen­ dent judgement could be jeopardised. This is an argument that also applies to workers and can allow us to recognise that hierarchical relations in both the workplace and the home can undermine autonomy and with it free and equal citizenship (Pateman 2004). There has been much feminist work on the meaning of both autonomy and dependency. For example, Nancy Fraser (Fraser and Gordon 1996) has convincingly argued that the meaning of “dependency” is political, being predicated upon our society’s failure to recognise care work. As a result of this social arrangement, men, whose wives’ traditional domestic work allows them to work long days in an office, are not categorised as “dependent” upon her work. They can claim to be autonomous whilst also benefiting from women’s unacknowledged work. Similarly, as Priaulx (2007, 110–12) illustrates, Martha Fineman’s work can be employed to contextualise the finding of the courts in wrongful birth cases. Fineman argues that, Rhetoric about the family’s form and function ignores or obscures the nature and extent of individual dependency. It also masks the costs of necessary caretaking of dependents, costs that are disproportionately assumed by women. (Fineman 1995, 215) In his discussion of autonomy in McFarlane Lord Millett said that, [Mr and Mrs McFarlane] have lost the freedom to limit the size of their family. They have been denied an important aspect of their personal autonomy. Their decision to have no more children is one the law should respect and protect. They are entitled to general damages to reflect the true nature of the wrong done to them. (McFarlane v Tayside Health Authority (2000), italics added31) As I have argued elsewhere (Richardson 2004; 2009), within a Kantian tradi­ tion, to refer to the “autonomy” of a couple rather than individual is simply a contradiction, representing a confusion of terms. Given the history of the doc­ trine of coverture, feminists are right to be suspicious (Priaulx 2004). Indeed, my critique of Witting’s defence of Lord Millett’s position on the naturalness of birth illustrates the extent to which the woman’s ability to decide upon whether or not she wants children is precisely the point at issue. Her clear intention not to have another child was occluded in his analysis, by virtue of his treatment of the harm as merely subjective and as only “socially constructed” harm. It could be argued that, despite this confusion over the objectivity of the harm, Lord 31 McFarlane v Tayside Health Authority (2000) 2 AC 144 (Lord Millett).

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Millett does address this by awarding damages for “loss of autonomy.” How­ ever, as discussed above, the derisory sum fails to give this its due accord. It is also necessary to consider why this confusion about “autonomy” appears less than innocent. In support of Lord Millett, Witting refers to “autonomy’: Most torts are concerned to protect personal autonomy in some way, including freedom of movement and the ability to use and enjoy land or property. But there are also cases in which the possibility of damages is also denied for the mere loss of use of the claimant’s property. (Witting 2002, 200–201) To understand how Witting employs the term “autonomy” it is necessary to understand the context. Curiously, he is comparing harm in the wrongful birth cases with harm in the “contamination cases” in which the harm arises as a result of the risk of contamination of land by radioactive particles, which then devalues the land in the market place (Merlin v British Nuclear Fuels Plc (1990)).32 Similarly, in his discussion of Losinjska Plovidba v Transco Overseas Ltd,33 Witting argues that the damages that were awarded on the basis that a spillage of hydrochloric acid on the deck of a ship was “socially constructed.” This is based on the argument that physical damage did not occur because the claimants removed the acid before it could do so. Witting’s distinction between what is classifiable as “natural” and “socially constructed” is based upon damage perceived with the human eye (Witting 2002, 190). Witting links this case with the wrongful birth cases in order to ask the fol­ lowing question, An interesting question, which arises from consideration of the wrongful conception and contamination cases, is whether the “immobilisation” of persons or property is sufficient to be classified as physical damage in neg­ ligence. Immobilisation, or, more appositely in the case of immovable property, loss of use, is a common characteristic of negligence claims. In McFarlane, for example, the claimant was confined to a hospital bed for a period. In Blue Circle the claimant was unable to sell a piece of land, while in The Ojula the claimant was unable to sail his ship. (Witting 2002, 200) It is only in this context that Witting refers to “autonomy” as quoted earlier. He appears to view “loss of autonomy” in terms of a loss of the use of the woman’s body, akin to the loss of use of land. Whilst he later recognises that there was more at stake than loss of use, this limited characterisation of 32 Merlin v British Nuclear Fuels Plc (1990) 2 QB 557.

33 Losinjska Plovidba v Transco Overseas Ltd. (1995) 2 Lloyd’s Rep. 395.

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“autonomy” is not revisited. This is a pity because it is the issue of Mrs McFarlane’s autonomy in its Kantian usage (as self-legislation or the use of one’s own will) that is at issue in this case. This is not a meaning that can be grasped by viewing women’s bodies as analogous with property. It does appear as if Witting is talking about a woman’s use of her own body. However, the analogy with property (and the way in which her own plans and intentions are marginalised in his framework) raises the question as to whether her body is being viewed as akin to her husband’s property; that she could not have sex for the full duration of the pregnancy, for example. This would now be inap­ propriate, in the UK, as a result of the abolition of the head of damages relating to “loss of consortium” in the Administration of Justice Act 1982, discussed above. However, it is still relevant in some Australian states. Witting later argues that law is an artificial construct and therefore it is “perfectly capable of accommodating a form of damage which does not exist in the real world.” This is a problematic statement of ontology. The fact that Mrs McFarlane had wanted her partner sterilised was taken as clear evidence that she did not wish to have children. This fact was not disputed in the case. Law itself is based upon the assumption that we are capable of making decisions, which affect the world and for which we are responsible. We do not usually need to provide physical evidence of brain states to persuade a court of the intentions of our actions, let alone that they are real. More worryingly, it is easy to fail to respect women’s autonomy if their intentions are so easily dis­ missed. Conversely, as discussed earlier, in describing personal injury as the only “real” type of harm, Witting appears to be committing himself to an epistemology that is difficult to support. Does he really mean that we perceive all pain directly, irrespective of different cultural beliefs or contexts? In Rees v Darlington Memorial Hospital NHS Trust34 the Court of Appeal adopted “loss of autonomy” as a head of damage, following Lord Millett’s approach in McFarlane. The case concerned a visually impaired woman who underwent sterilisation because she feared that she would not be able to bring up a child. The sterilisation operation was negligently performed by the hospi­ tal. Lord Millet restates his position in McFarlane, to argue that a conventional sum of damages should be adopted to represent “loss of autonomy” of the parents to limit the size of their family. This represented the majority view and so she was awarded £15,000 for “loss of autonomy,” as described, plus damages for pain and suffering and other costs relating to the birth. Lord Hope (dis­ senting) expresses some doubts about this view of autonomy, I agree with Gleeson CJ’s observation in Cattanach v Melchior (2003) HCA 38, para 23 that it would be more accurate to say that parents have the freedom to choose, and therefore to limit, the size of their family. To describe this freedom as a right – or, as Lord Millett now suggests, as the 34 Rees v Darlington Memorial Hospital NHS Trust (2004) 1 AC 309.

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loss of an opportunity which is the proper subject of compensation by way of damages – seems to me to beg many questions which are not answered in his analysis.35 Unfortunately, he leaves this particular point without further explanation to argue that there are other reasons for his difficultly in accepting Lord Millett’s view, including the fact that conventional sums are not usually awarded where the losses are financial and hence capable of assessment. He argued that the losses should be assessed on the basis that it would put them in “the same position as money would allow as if they had not sustained the wrong for which they were being compensated.”36 In other words, he employed the usual principles of torts law. Lord Hutton (also dissenting) referred to the discussion of autonomy by Hale LJ (as she was called) in the Court of Appeal decision in Parkinson v St James and Seacroft University Hospital NHS Trust.37 She describes the “right to physical autonomy” and discusses conception, pregnancy, and childbirth as an invasion of bodily integrity. This is an interesting view of autonomy because it moves beyond the Kantian image of self-legislation (with its emphasis upon the will) to also include a discussion of lack of control in bodily changes and their consequences.38 In contrast with Witting’s discussion of autonomy, the issue of women’s intentions is also central. In particular, she discusses the changes that occur during and after pregnancy to comment astutely that, Along with these physical and psychological consequences goes a severe curtailment of personal autonomy. Literally, one’s life is no longer just one’s own but also someone else’s. (Parkinson v St James and Seacroft University Hospital NHS Trust (2002))39

Conclusion Feminist philosopher Miranda Fricker (2007) illustrates how “epistemic injus­ tice” occurs in two ways: when some groups (based on gender or race, for example) are systematically viewed as less truthful, and also when they have experiences that are not easily articulated within mainstream conceptual fra­ meworks. These two examples of injustice interact in pernicious ways because someone struggling to articulate a concept outside the mainstream is granted less credibility than otherwise. Similarly, Conaghan (2003) points to the way in 35 36 37 38

Rees v Darlington Memorial Hospital NHS Trust (2004) 1 AC 333 (Lord Hope). Rees v Darlington Memorial Hospital NHS Trust (2004) 1 AC 334 (Lord Hope). Parkinson v St James and Seacroft University Hospital NHS Trust (2002) QB 284. See also Hale, Dame Brenda E., The Right Honourable Lady Justice, “The Value of Life and the Cost of Living – Damages for Wrongful Birth” (2002), The Staple Inn Reading, British Actuarial Journal, 755–63. 39 Parkinson v St James and Seacroft University Hospital NHS Trust (2002) QB 287.

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which some concepts in tort become reified, the effect of which is to mis­ characterise unwanted pregnancy in a way that removes it from the body. I have started with the axiom that nobody should be treated as subordinate. If Mrs McFarlane was not afforded reasonable care then this can be viewed as a harm in addition to the resulting unwanted pregnancy (and the pain and suf­ fering and legal and moral duties that arose from it.) For the courts to claim that the harm is a blessing indicates that women are still accorded a pre-modern status. The courts are willing to impose their view of the good upon her, thereby marginalising her ability to make her own life plans and failing to appreciate cost of care to the carer.

Bibliography Adjin Tettey, Elizabeth. 2012. “Sexual Wrongdoing: Do the Remedies Reflect the Wrong?” In Feminist Perspectives on Tort Law, edited by Janice Richardson and Erika Rackley. Abingdon: Routledge. Alder, Zsuzsanna. 1987. Rape on Trial. London: Routledge and Kegan Paul. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Chamallas, Martha, and Jennifer B. Wriggins. 2010. The Measure of Injury: Race, Gender, and Tort Law. New York: New York University Press. Conaghan, Joanne. 1996. “Gendered Harms and the Law of Tort: Remedying (Sexual) Harassment.” Oxford Journal of Legal Studies 16 (3): 407–431. https://doi.org/10. 1093/ojls/16.3.407. Conaghan, Joanne. 2002. “Law, Harm and Redress: A Feminist Perspective.” Legal Studies 22 (3): 319–339. https://doi.org/10.1111/j.1748-121X.2002.tb00196.x. Conaghan, Joanne. 2003. “Tort Law and Feminist Critique.” Current Legal Problems 56 (1): 175. https://doi.org/10.1093/clp/56.1.175. Fineman, Martha L.A. 1995. “Masking Dependency: The Political Role of Family Rhetoric.” Virginia Law Review 81: 2181. Fraser, Nancy, and Linda Gordon. 1996. “A Genealogy of ‘Dependency’: Tracing a Keyword of the U.S. Welfare State.” In Justice Interruptus: Rethinking Key Concepts of a Post-Socialist Age, 121–150. London: Routledge. Fricker, Miranda. 2007. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press. Graycar, Regina. 1983. “Compensation for Loss of Capacity to Work in the Home.” Sydney Law Review 10: 528. https://doi.org/10.3316/ielapa.850909911. Graycar, Regina. 1985. “Hoovering as a Hobby: The Common Law’s Approach to Work in the House.” Refractory Girl: A Women’s Studies Journal, no. 28: 22–26. https://doi. org/10.3316/ielapa.850909763. Graycar, Regina. 2012. “Damaging Stereotypes: The Return of Hoovering as a Hobby.” In Feminist Perspectives on Tort Law, edited by Janice Richardson and Erika Rackley, 205–226. Abingdon: Routledge. Hampton, Jean. 1991. “A New Theory of Retribution.” In Liability and Responsibility Essays in Law and Morals, edited by Raymond Gillespie Frey and Christopher W. Morris, 377–414. Cambridge: Cambridge University Press.

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Hampton, Jean. 1998. The Authority of Reason. Cambridge: Cambridge University Press. Hobbes, Thomas. 1651/1668. 1994. Leviathan: With Selected Variants from the Latin Edition of 1668. Edited by Edwin Curley. Indianapolis: Hackett. Hoyano, Laura C. H. 2002. “Misconceptions about Wrongful Conception.” The Modern Law Review 65 (6): 883–906. https://doi.org/10.1111/1468-2230.00414. Kant, Immanuel. 1798. 1974. Anthropology from a Pragmatic Point of View. Translated by Mary J. Gregor. The Hague: Nijhoff. Murphy, Jeffrie G., and Jean Hampton, eds. 1988. Forgiveness and Mercy. Cambridge: Cambridge University Press. O’Neill, Onora. 1989. Constructions of Reason: Explorations of Kant’s Practical Philo­ sophy. Cambridge: Cambridge University Press. Pateman, Carole. 2004. “Democratizing Citizenship: Some Advantages of a Basic Income.” Politics & Society 32 (1): 89. https://doi.org/10.1177/0032329203261100. Priaulx, Nicolette. 2004. “That’s One Heck of an ‘Unruly Horse’ Riding Roughshod over Autonomy in Wrongful Conception.” Feminist Legal Studies 12 (3): 317–331. https:// doi.org/10.1007/s10691-004-4989-y. Priaulx, Nicolette. 2007. The Harm Paradox: Tort Law and the Unwanted Child in the Era of Choice. London: Routledge. Richardson, Janice. 2004. “Feminist Perspectives on the Law of Tort and the Technology of Risk.” Economy and Society 33 (1): 98–120. https://doi.org/10.1080/0141987042000177306. Richardson, Janice. 2007. “On Not Making Ourselves the Prey of Others: Jean Hamp­ ton’s Feminist Contractarianism.” Feminist Legal Studies 15 (1): 33–55. https://doi. org/10.1007/s10691-006-9041-y. Richardson, Janice. 2009. The Classic Social Contractarians. London: Ashgate. Scully, Diana, and Joseph Marolla. 1985. “‘Riding the Bull at Gilley’s’: Convicted Rapists Describe the Rewards of Rape.” Social Problems 32 (3): 251–263. https://doi. org/10.2307/800685. Steininger, Barbara C. 2010. “Wrongful Birth and Wrongful Life: Basic Questions.” Journal of European Tort Law 1 (2): 125–155. https://doi.org/10.1515/jetl.2010.125. Witting, C. 2002. “Physical Damage in Negligence.” The Cambridge Law Journal 61 (1): 189–208. https://doi.org/10.1017/S0008197302001587.

Chapter 11

Spinoza, Feminism, and Privacy Exploring an Immanent Ethics of Privacy

In this chapter I explore the usefulness of Spinoza’s ethics for feminism by considering ways in which it allows feminists to rethink privacy. I draw upon some of Spinoza’s central ideas to address the following question: when should information be classed as private and when should it be communicated? This is a question that is considered by the common law courts. Attempts to find a moral underpinning for such a tortious action against invasions of privacy have tended to draw upon Kant’s categorical imperative, for example. In contrast, I want to consider how Spinoza provides an immanent ethics that reconfigures how privacy is understood.1

Introduction I recognise that informational privacy is only one area of privacy and so mine is a narrow focus. Before considering this question (of when information should be classed as private and when should it be communicated), it is important to understand it within the context of privacy more generally and to explain the reasons why privacy continues to be an important area of concern for feminists. This context will be addressed in the first section in which I will outline two major changes that contribute to the changing experience of privacy and some of the ways in which they intersect: the feminist attack on the idea that “women’s place is in the home” (the public/private divide) and the impact of computer mediated communication. I will then outline Spinoza’s ontology before applying it. Spinoza’s philosophy was shocking when Ethics (Spinoza 1985)2 was post­ humously published in 1677 and still appears alien when compared with 1

2

Reprinted by permission from Springer Nature Customer Service Centre GmbH: Springer Feminist Legal Studies, “Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy,” Janice Richardson, 2014: https://www.springer.com/ journal/10691. Passages from Spinoza’s (1985) Ethics (E) will be referred to by means of the fol­ lowing standard abbreviations: initial numerals stand for part/book numbers, “a” for “axiom,” “c” for “corollary,” “p” for “proposition,” “s” for “scholium,” “lem”

DOI: 10.4324/9780429329678-14

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familiar Kantian moral claims such as the need to treat others with respect as free and equal persons. In contrast, Spinoza is concerned with what allows both individuals and societies to increase their powers of acting and to reduce sad passions in favour of joyful ones. Spinoza does not focus upon persons as autonomous individuals who make moral decisions but as “trans-individuals” (Balibar 1997). Balibar employs the term “trans-individual” to describe Spino­ za’s conception of human beings as always making up parts of other bodies, such as organisations and states, while also being composed of other bodies, such as bacteria in our guts. In Ethics, Spinoza provides a framework which is not anthropomorphic in its analysis of what allows bodies (such as societies, as well as parts of socie­ ties, humans, animals, stones) to thrive. In the case of persons, this thriving denotes an increase in our body’s ability to act which in turn denotes an increase in our “adequate knowledge.” Someone with adequate knowledge, which refers to our understanding of why some bodily encounters produce sadness or joy, is able to live a different way of life from someone who simply reacts to encounters. For Spinoza, something’s “essence” is defined as what it does on a daily basis in order to survive and thrive. Hence, essence is not a fixed underlying defini­ tion of the thing (whether it is a stone, dog, human being or social organisa­ tion) but alters depending upon what that thing can do to thrive and survive. For human beings, this depends on our ability to understand the world. This means that the dissemination of adequate knowledge – or information which helps its production – is central to Spinoza’s ethics. As such, Balibar concludes, Spinoza’s philosophy is, in a strong sense of the term, a philosophy of communication – or, even better, modes of communication – in which the theory of knowledge and theory of sociability are closely intertwined. (Balibar 1998, 101) I will explain the way in which knowledge and sociability are “intertwined” below. I also position Spinoza retrospectively within the growing field of phi­ losophy of information because of the centrality of “adequate knowledge” to both his ethics and his view of what it is to be human. I will also discuss the difference between adequate and inadequate knowledge further in the second section and then apply Spinoza’s work to the question of privacy, focusing upon the question stated above: when should information be classed as private and when should it be communicated? for lemma, “pref” for “preface,” and “app” for “appendix”; “d” stands for either “definition” (when it appears immediately to the right of the part of the book), or “demonstration” (in all other cases), “da” for “definition of the affects.” Hence, “E 1d3” is the third definition of part 1 and “E 1p16d” is the demonstration of propo­ sition 16 of part 1. I use Edwin Curley’s translation unless stated otherwise.

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Having defined my aim narrowly and asked how an immanent ethics can be applied to a question that comes before the courts, I should emphasise that there is more to privacy than can be subsumed under liberal rights discourse (just as there is more to privacy than informational privacy and the question being addressed, mentioned above). As Warren Montag (1989; 1999) argues, Spinoza’s work alerts us to the myth of juridical transcendence. Spinoza’s immanent ethics focuses upon bodily encounters and is concerned with what is necessary for bodies to thrive. I have already distinguished this approach from Kantian questions that rely upon an image of free and equal persons. It is obvious today that we should be suspicious of the claim that the state knows best as to what information about its citizens should be both collected and released based merely upon its fantasy of what they could agree to if given the chance. My claim is that, as feminists, we need to rethink intersecting gendered, social, political, and personal dynamics and practices of privacy and publicity, and that one approach can be informed by Spinozist ethics. This ethics provides a coherent way of dividing between information that should be in the public domain and that which is private. It is not possible to “err on the side of caution” in drawing this line because there is information that should be circulated just as there is infor­ mation that should remain private. One example of information that should remain private, i.e. that should not be disseminated, is that of image based abuse. It can be argued that such communication fails to respect the woman concerned as a free and equal person. However, Spinoza provides a different argument. I chose the example of image based abuse, when other examples are also appropriate, because image based abuse is at the far end of a continuum between what should and should not be published at this time. This is because its publication clearly depends upon and reinforces “sad passions,” based upon misogyny that is situated within a particular history. Given Spinoza’s view of essence, which is not fixed but denotes what anything does to thrive, it is not inevitable that this will always be the case nor that image based abuse would be meaningful in other societies.

Background on Privacy There has been much feminist work3 on both privacy and the public/private divide, which Carole Pateman famously described in the following terms: The dichotomy between the private and public is central to almost two centuries of feminist writing and political struggle; it is ultimately what the feminist movement is about. (Pateman 1989b, 118) 3

A few examples include: Allen (1988; 2011), Pateman (1989a), Okin (1989), MacK­ innon (1989), Landes (1998), Elshtain (1981), Gavison (1980), Cohen (1992; 2002), Goldfarb (2000), Higgins (1999), Rössler (2004; 2005), Scott and Keates (2004), Richardson (2011; 2012; 2014).

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In political and legal theory, the public/private divide is most associated with the liberal tradition, which envisages the use of private property as a bulwark against the state. Feminists have made some progress, at least in theory, in convincing others of the argument that the state should interfere with the family and within the family home to try to prevent violence (for example MacKinnon 1989; Allen 1988). The private sphere was defined against the public sphere in ways that made it appear non-political and natural (Pateman 1989a). This definition allowed women’s struggles to be largely ignored by mainstream political theory in the early twentieth century up to the 1970s fem­ inist movement. The political position of the family was not always margin­ alised in modern political theory, however. Both the classic social contract theorists and Hegel integrate an analysis of the family in their political theories. For example, Hobbes treated the family as a mini state (Brennan and Pateman 1979; Pateman 1989b), and yet this aspect of his analyses was then ignored as the family fell from view in later politico-legal theory. A similar move seems to be occurring with regard to the meaning of privacy. The liberal claim is that problems of women’s abuse within the home have now been rectified in law; that this element of the public/private divide has been dealt with and bears no relationship to other meanings of privacy, in particular the problems that arise as a result of ubiquitous computing and the analysis of big data. However, I argue that whilst these factors may be viewed as con­ ceptually distinct both impact upon the experience we have of privacy. In assessing what information should remain private, courts continue to emphasise the importance of intimacy, the body, sex, and the home, the areas that are central to feminist critiques of abuse of power that has taken place behind closed doors. The way in which the public/private divide is conceptualised still remains a core problem with liberalism from a feminist perspective, as illu­ strated by liberal feminists’ engagements with the canon (Okin 1989; Nussbaum 2000). As I will discuss in Chapter 12, this problem can also be illustrated with regard to the history of the common law, for example, by an examination of the way that the husband’s prerogative to beat his wife was rejected in the nineteenth century only to be replaced by a husband’s “immunity” against wife battery. This continuation of the husband’s prerogative to beat his wife, by another means, was argued on the basis that the need for privacy was greater than the need to set a precedent against such battery. In a criminal case in which a wife was whipped three times by a switch “about the size of one of his fingers,” the judgement in North Carolina Supreme Court in State v Rhodes (1868) stated: The courts have been loth to take cognizance of trivial complaints arising out of the domestic relations – such as master and apprentice, teacher and pupil, parent and child, husband and wife. Not because those relations are not subject to law, but because the evil of publicity would be greater than

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the evil involved in the trifles complained of, and because they ought to be left to family government. (State v Rhodes (1868).4 Cited in Siegel 1996, 2154; emphasis added) Attempts to define privacy reflect the politics of theorists, often without acknowledgement. This is certainly the case when analytic philosophers aim to define privacy ahistorically. For example, from the US, there were debates in which both sides reflected a view of privacy that commodify it. Judith Jarvis Thomson (1984) argued that privacy rights did not stand independently but could be reduced to property rights. Similarly, an opponent, Charles Fried (1984), who argued that privacy rights could not be reduced in such a manner, nevertheless held a commodified view of privacy. He argued that privacy is a fundamental right that is necessary in order to safeguard some secrets, which we need in order to exchange with others (as a sort of commodity) to form the basis of intimacy (Richardson, 2012, 155). In part, what was (and is) at stake for some analytic theorists is the perceived need for the courts to have a definition of privacy in order to draw (and enforce) the line between what may be published and what may not. However, the common law courts tend to ignore analytic definitions of privacy in favour of circular definitions that allow for greater judicial discretion. The legal test for privacy in the UK is from Campbell v Mirror Group Newspapers (2004)5 and provides a typical example. The test is: 1 2

Would a reasonable person in the position of the claimant have a reason­ able expectation of privacy? If this test is passed then Is it outweighed by other factors, such as a public interest in freedom of expression?

This means that judges can use their discretion and build up precedent. So, for example, we now know from UK case law that claimants are treated as having a reasonable expectation that medical details and information about sexual relationships will be viewed as private. This has not stopped the government from selling its citizens’ medical information, which is then leaked, or GCHQ from collecting their personal information, but has enabled rich footballers to injunct newspapers. An alternative to the traditional analytic definitions (and those open defini­ tions employed by the courts) has more recently been provided in the develop­ ing area of philosophy of information: that privacy can be understood as inversely related to the extent to which information can be transmitted. In other words, the harder it is to communicate information, the easier it is to have privacy. To use an example from Floridi (2006), if you imagine a student house 4 5

State v Rhodes (1868) 61 N.C. (Phil. Law) 453. Campbell v Mirror Group Newspapers [2004] UKHL 22.

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then the privacy decreases if there are certain environmental changes that allow information to flow more easily, e.g. the walls are suddenly transparent and the students are not visually impaired. Computer mediated communication is then envisaged as “greasing” the flow of information. As Floridi notes, the change brought about by technological progress does not necessarily work straightfor­ wardly to diminish privacy. It can sometimes increase the control that some individuals can exercise. The example he gives is that of men (and it was mainly men) visiting seedy Macau who used to turn off their mobile phones because the dialling tone was unique and would give away their location. When the phone company realised that it was losing custom it changed the dialling tone to be the same as that of Hong Kong, thereby increasing the men’s privacy (see Richardson 2012). This image of information flow (Floridi 2006), differs greatly from some of the traditional definitions in the 1970s and 1980s prior to ubiquitous personal computing, which tended to be analytic attempts to fix a definition of the term “privacy” (for example, Fried 1984) and which often relied upon a particularly individualistic view of what it is to be human. In contrast, I want to draw upon Spinoza’s work – and his rather different view of humanity – to focus upon privacy today.6

Spinoza: Background Spinoza’s work has been employed to think progressive politics by Louis Althusser (1997), Gilles Deleuze (1990), Etienne Balibar (1994; 1997; 1998), Warren Montag (1989; 1999) and contemporary feminist philosophers: Moira Gatens (2004), Genevieve Lloyd (1994) and Susan James (1996; 2008; 2012; James, Lloyd, and Gatens 2000). It is their analysis that I think opens up the possibility of useful applications of Spinoza to privacy. I will focus upon Spi­ noza’s analysis of knowledge in order to re-situate it in the context of the vastly increased ability to transfer information, which arises in the age of ubiquitous computing. What a Spinozist understanding brings to my question: “when should information be classed as private and when should it be disseminated?” draws upon his analysis of the importance of the dissemination of “adequate knowledge.” This raises two areas of his thought that are particularly useful: (1) what qualifies as “adequate knowledge”? and (2) how does society promote such knowledge? As a result of the growing areas of philosophy of information, it is necessary to briefly distinguish information from knowledge before then distinguishing “adequate” from “inadequate” knowledge. Spinoza refers to “adequate knowl­ edge” and not “information” and so the two terms should not be confused. Floridi 6

Both Floridi and Spinoza are useful for thinking about privacy and its relation to ontology and conceptions of self (see Richardson 2015). There is insufficient space here to compare these approaches.

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(2010) defines semantic information as well-formed, meaningful and veridical data. It is more meaningful than mere “data” that needs analysis in order to become meaningful. He argues that information as true semantic content is a necessary condition for knowledge; it allows us to build information into a web of knowl­ edge with explanations and accounts that make sense of the available information. Other mathematical definitions of information transmission, such as that by Shannon (Shannon 1948; Shannon and Weaver 1949), do not imply that the data is well-formed or truthful. Irrespective of the debates within this area of philosophy and in epistemology more broadly, I think it is fair to claim, for the purposes of this chapter, that the circulation of some types of information will facilitate an increase in Spinozist “adequate knowledge” of the world. For Spinoza, adequate knowledge about the world changes how we live our lives and “who we are” and is not simply about what we can know. This idea is captured by the following image: [For Spinoza] knowledge is more a mode of being than having, not some­ thing we possess but some thing we are or become. As Monique Schneider notes, in attaining knowledge we do not attain an acquisition, as if some­ thing new were added to an inventory of our possessions, but rather we exist differently. (Yovel 1989, 159; see also Gatens and Lloyd 1999, 127; Richardson 2009, 63) To explain the meaning of adequate knowledge, it is necessary to start by explaining the different types of knowledge in Spinoza’s framework. Spinoza envisages three kinds of knowledge but I will concentrate upon the first two because it is the transition between these two stages of knowledge that is most relevant to the problem of discerning what information should be shared and what should be kept private. I will start with the first stage of knowledge: that of the imagination, which entails our emotional responses to an encounter with another body or mind. To understand this involves a brief explanation of Spi­ nozist ontology and the way in which he understands what it is to be human. For Spinoza, all that exists is one substance, which he refers to as God or nature, by which he means that the two are synonymous. By viewing God and nature as synonymous, Spinoza thereby loses the idea of a God as external legislator, or something that judges us from a separate realm, because he closes down the idea that there is anything outside of nature/God. In addition, for Spinoza, there is no Cartesian mind/body split. Substance can be fully expressed as any of its infinite attributes, which include Thought and Extension. At the level of an individual human being, this means that both our mind and body are modes conceived through different attributes of the same substance. There is no mind/body split because both Thought and Extension are different attributes of the same substance. “The object of the idea con­ stituting the human mind is the body” E 2p13. Put simply, a human mind and human body are just expressions of the same thing, the human being. As part of

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what exists, we are affected by other bodies and other minds, without which we could not survive. A useful starting point in understanding Spinoza’s thought is by considering how he envisages encounters between bodies: both other human beings and other objects in the world. These encounters with other bodies can be sad or joyful for us depending upon whether they decrease or increase our conatus (in other words: our powers of acting or ability to thrive, our essence). So, very simply, my encounter with the body of a lion that chews off my arm would be sad for me, in that it diminishes my powers of acting, but would be joyful for the lion. Similarly, my encounter with ideas (others’ minds) may be sad, if it carries the message that women’s bodies are disgusting, for example, and has the effect of diminishing my powers of acting. Both mind and body are attri­ butes of the same thing and so both mind and body will, in parallel, be affected by anything that increases my powers or diminishes me. At the first stage of knowledge, our imaginative impression of another body or idea is accompanied by an emotion. We tend to assume mistakenly that the reason we react with sadness or joy to an encounter is that the other party to the encounter is evil or good. These feelings stay with us and are real impres­ sions even when we are able to move to a higher stage of knowledge, employing reason to understand the encounter. The use of understanding allows us to go beyond labelling something good or evil in itself and to work out why it either increases or decreases our powers of acting.7 Spinoza refers to this use of reason as a move to the second stage of knowledge by gaining “adequate knowledge” of the encounter. This increase in adequate knowledge about the world also gives us joy in itself. This is in addition to the fact that such knowledge increases our ability to avoid those things that are bad for us and to increase our joyful encounters. Spinoza’s thought opens up a framework in which to consider not only initial encounters but also the importance of the transmission of adequate knowledge, or information that promotes it, within society. Spinoza’s politics are based upon the idea that human bodies are similar enough to each other that what people know (adequately) of their encounters with the world is useful for one another. As Spinoza states, There is no singular thing in nature which is more useful to man than a man who lives in accordance to the guidance of reason. (E 4p35c1) The logic of the argument includes women. I may be a tyrant, having fun oppressing you and keeping you in fear of me (i.e. at the emotional first stage of knowledge, that of the imagination) but this makes me worse off because I lose 7

Unlike the later Kantian view which sharply distinguished between the faculties of reason and understanding, Spinoza sees the two as basically synonymous, and not a faculty.

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the benefit of your ability to reason, to understand your encounters. For example, I lose the chance that your ability, with others and a decent labora­ tory, will produce a medical cure for some of my more scrofulous diseases. So, for Spinoza, when it comes to the transfer of information that increases our adequate knowledge of the world we are not dealing with a zero sum game. My adequate knowledge of the world is not diminished by increasing your knowledge – rather it is likely to be enhanced by what you can then contribute to my adequate knowl­ edge of my bodily encounters, given the similarities of our bodies. Spinoza used his analysis to produce an argument for free speech against religious attempts to curtail it, which employed blasphemy laws, for example. Today, the idea that information is a commodity can also reduce the sharing of information that could result in adequate knowledge. This idea can end up functioning in the same way as blasphemy laws – albeit that the aim of laws such as patent law was originally to facilitate the communication of trade secrets and not to criminalise everyone who downloads music. This is some­ thing of a banality of which we are painfully aware. Spinoza’s framework is useful beyond providing a means to criticise such laws. I think that re-framing the question of what information or knowledge should and should not be made public in terms of Spinoza’s thought on communication produces an immanent ethics, that can be applied in the area of privacy more broadly.

An Immanent Ethics of Privacy It is necessary to explain what it means to claim that some information should be shared or should be kept private, when understood within a Spinozist fra­ mework. As discussed, there is no transcendent God or universal moral law within Spinoza’s ontology in which this normative demand can be framed. In addition, different societies develop knowledge and culture in diverse ways. These different ways of life cannot be rated in a hierarchy in accordance with a universal rule – a point that prompts moral pluralism. It does not produce relativism because for Spinoza, it is still possible to judge that some societies are more ethical than others because oppressive societies would not thrive as well as those that allow their members to thrive. I will examine this further, in comparison to Kant and to Hobbes, below. Deleuze (1988) draws attention to Spinoza’s helpful illustration of immanent ethics, that appears within Chapter 4 of The Theologico-Political Treatise (Spinoza 2007). In the story of the Old Testament, it may appear as if God, acting as an external legislator, commands Adam not to eat the apple. How­ ever, there is no transcendent claim to morality involved in Spinozist ethics. Instead, Spinoza’s interpretation is that this “command” is actually simply advice that eating the apple would disagree with Adam’s constitution, that it would make him ill. To say that it should not be eaten does not mean that there is an anthropomorphic God, external to nature, who forbids eating the apple but serves as a warning that doing so would reduce Adam’s powers of acting.

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For Spinoza, a social body can be analysed in exactly the same way as an individual body. So, as above, there is no punishment meted out by an external God for failures to increase powers of acting, it is simply that some bodies will fail to survive or at least to thrive as well as others. The progressive element that is drawn out by Moira Gatens (1996) with regard to criminal law, for example, depends upon Spinoza’s view that any society that oppresses parts of itself will be less likely to survive. From Gatens’ position, the oppressive society will also be deprived of “better fictions” – progressive images of the world derived from the initial encounters of those who are in a subordinate position. I agree, but would stress that Spinoza would emphasise the need to use reason in order to thrive, by working out why some encounters are joyful and some sad. This is a view of reason that differs from reason as a Kantian faculty because our analysis is always situated, concerned with understanding a particular encounter in terms of what allows us to thrive. For this reason, Spinoza avoids a “view from nowhere” and yet is not relativist because it is possible to judge between the ethics of different societies or parts of society, as discussed. Encounters are “perspectival” in the sense that some encounters may be a joyful for one party (the lion) and sad for the other (me). At the level of society, if women are deprived of education, ultimately this will weaken that society. This is a re-working of Spinoza’s own, much more hostile, position on women in the final pages of the unfinished Political Treatise (Spinoza 2000). This progressive argument is central to Spinoza’s politics and represents a reversal of the usual conservative image that accompanies the use of the metaphor of society or state as a human body (see Chapter 7). As I will discuss below, the link between the human body and body politic can be viewed as more than a metaphor in Spinoza’s work. In the social contract tradition, feminist philosopher Jean Hampton contrasts two approaches to ethics: what she calls Hobbes’ quasi-ethics and Kantian ethics (Hampton 1997; [1992] 2018; 2007). Spinoza falls outside both positions but a comparison with both is useful to illustrate his originality. Kantians employ the categorical imperative (“Act only according to the maxim whereby you can, at the same time, will that it should become a universal law”) to answer the question as to what must be kept private, based upon respect for personhood. In comparison, for Spinoza there are no rights or rules that sepa­ rate someone from his/her power. He does view might as right. Spinozist ethics therefore appear closer to Hobbes’ image of all individuals cal­ culating what is in their best interests and acting accordingly and therefore appears to be an inauspicious theory on which to base an ethics. In Spinozist ethics, the question in relation to privacy becomes: whether the communication increases or decreases our powers of acting. This sounds Hobbesian but the difference in approach to ethics lies in the ontology; the meaning of “our” in this sentence. Rather than starting with an assumption that there are separate individuals who are the sole cause and explanation of their own actions, Spinoza considers what Balibar (1997) terms the “trans-individual.”

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Balibar uses the term in order to highlight that persons can be viewed as both individuals and as part of society. In this second case, society itself is treated as an individual. Spinoza’s “trans-individuals,” in common with everything that exists, are parts of substance. As discussed, they are comprised of other parts of substance (such as other bodies that hitch a ride in the human gut) but they are also themselves parts of larger wholes, such as corporations, universities, and societies. The same arguments about individual striving can be applied in the same way at each level of analysis. This is the strong sense in which the indi­ vidual is actually part of society that is not accepted within the methodological individualism of Anglo-American readings of Spinoza, which view any reference to a social body as merely a metaphor (Montag 1999).

Application of Immanent Ethics Spinoza’s immanent ethics can be illustrated by taking an example of a disturbing new phenomena: image based abuse, in which a man publishes intimate pictures or video of his ex-partner with a view to humiliating her (assuming a heterosexual relationship, given the history of sexuality). In order for image based abuse to have any meaning requires that the viewer is situated within a particular history of heterosexuality and the sexual double standard. To understand the encounter requires a broader understanding of the history of sexuality (that also includes homosexuality). There are many valid arguments against the dissemination of image based abuse. However, I want to use it as an example to illustrate a Spi­ nozist approach to privacy in the hope that this will provide guidance in other areas. At the very least, this approach is suggestive of a novel framework in which to address the question of what should and should not be disseminated. When the act of image based abuse is considered in Spinozist terms, it could be claimed, at first glance, that the release into the public domain of graphic pictures or other intimate information is only a sad encounter for the woman concerned; that the man is gratified in his urge to hurt and humiliate his expartner. As discussed, Spinozist ethics does recognise a difference in perspective: that the same encounter may be bad for the minnow and good for the pike. However, in the case of image based abuse, the man who releases image based abuse does not increase his powers of acting, his conatus, by that act. In other words, he does not increase his knowledge of his sad initial encounter: his relationship with the woman concerned. He remains at the first stage of knowledge, that of the imagination, in which he labels his ex-partner as evil because she has hurt him, without any better insight into why this occurred. To understand his bitterness, his disappointed expectations, it would be necessary to understand something of the gendered history of his culture, of women’s oppression and their relatively recent change in status. In other words, his action in publishing image based abuse maintains and perpetuates his sad pas­ sions, as well as hers. Spinoza captures something of this motivation, albeit from a male viewpoint, when he comments that,

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One who has been badly received by his lover thinks of nothing but the inconstancy and deceptiveness of women and their other, often sung vices. All of these he immediately forgets as soon as his lover receives him again. (Spinoza E 5p10s) Such publication also undermines society’s conatus, when society is considered as a whole, by maintaining sad passions by drawing upon and reinforcing gender oppression. This undermines women’s ability to thrive and hence improve society, as discussed above. The act of publishing image based abuse, which perpetuates sad passions, can be starkly contrasted with the sharing of knowledge (or information that allows us to increase our adequate knowledge of the world) such as cures for diseases (or information from which a cure can be derived). I want to explain this application of Spinoza’s framework further by drawing out a comparison between this Spinozist approach and that of Judith Butler in her analysis of hate speech in her book Excitable Speech (Butler 1996). Butler has a very different ontology to Spinoza and the understanding of hate speech differs in terms of the political question: what is to be done? Central to Butler’s analysis is the fact that language is not fixed and that it can never completely define us; that it is possible to reinterpret the meaning of hate speech. For Butler, this offers a better way forward for feminists than appeals to law. Such appeals only further empower discourses of law, in which judges have the opportunity to re-enact the hate speech. We should not just accept a misogynist and racist judiciary as inevitable but I will leave aside this additional concern regarding the need for better methods of selection of the judiciary (and pro­ blems of legal education that produce such judges) to focus upon highlighting my application of Spinoza. An application of Spinoza’s framework provides a different answer to the question: “what is to be done?” than that of reworking the meaning of lan­ guage. For Spinoza, it is necessary to move from the first to the second stage of knowledge (in other words to work out why some encounters are joyful or sad). This is an ontological and not merely an epistemological change because, as the Yovel quotation above illustrates, we live different lives as a result of what we know. An increase in adequate knowledge is not simply like adding books to a library but changes “who we are.” This contrast in approach to the problem of “what is to be done?” between Butler and the application of Spinoza is stark. However, there is some argument that, as an interim measure, the production of “better fictions” is progressive (Gatens 1996; see also James 2012; James, Lloyd, and Gatens 2000). For me, these better fictions can be understood in Spinoza’s terms, as the dissemination of the imaginative and emotional (inadequate) knowledge gained by sub­ ordinate groups rather than the usual cultural production based upon the ima­ ginations (again, inadequate knowledge) of those who dominate. The production of better fictions does not involve understanding why encounters

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have been sad but at least publicises the impact of sad encounters as imagined and felt by those who are subordinate. This need for “better fictions” comes slightly closer to Butler’s solution than the emphasis upon the need for adequate knowledge. This is because Butler wants to change the meaning of oppressive language to reflect the view of the subordinate. Additionally, if better fictions reduce sad passions and increase joyful ones (even though these fictions are not in themselves adequate knowledge) their dissemination may help us to achieve adequate knowledge. For example, consciousness raising groups may claim “sexual harassers are evil” (which is inadequate knowledge) but this may be progressive if it shifts women from self-blame and opens the way to a more in depth analysis. Butler’s major problem with the way in which pornography as hate speech is conceptualised is based upon her reading of Catherine MacKinnon. Butler worries that women are portrayed as helpless victims who look to law for their defence, a practice that Wendy Brown refers to as a “protection racket” (Brown 1995). This has been the subject of much feminist legal analysis (see, for example Cornell 1995). I will illustrate my Spinozist response by drawing a comparison with another feminist theory in answer to Butler’s concern that women are portrayed as helpless victims by seeking legal redress. Both Drucilla Cornell’s radical reworking of Kant and my employment of Spinoza avoid reinforcing this image of female victims in need of legal protection, in different ways. Cornell argues that, when women make a claim not to be sexually harassed, for example, this is a demand that they be treated with respect as free and equal persons and not as victims. Against Butler’s worry (that judges will use this claim in order to reinforce negative stereotypes about women) Cornell argues that women should be viewed as demanding that the judges behave reasonably; that the imposition of judges’ images of women upon them is to be understood as unreasonable behaviour.8 As discussed above, Spinoza’s immanent ethics differs from such a Kantian position. Instead, the question to be addressed is whether the release of information serves to perpetuate sad passions or whether the circulation of such information increases our powers of acting. This does not rely upon an image of women as victims but, in common with all other entities, as trying to increase their powers of acting.

Spinoza and Ideology Spinoza also alerts us to power relationships and the way in which some com­ munications can repeat inadequate knowledge in ways that maintain sad pas­ sions and the status quo. In some ways, a Spinozist framework offers a way of 8

For an analysis of the relationship between imagination in Spinozist thought and Cornell’s psychoanalytic reading of the imaginary see James (2002). Nothing rests upon James’ argument here.

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considering what in Marxist terms is viewed as ideology and includes (but is not limited to) concerns about commodification. Ideas – such as those repro­ duced by blasphemy laws and potentially by patenting and copyright laws, when they inhibit the transmission of adequate knowledge – can be understood in Spinozist terms as themselves producing sad encounters when they are com­ municated. This sad encounter (between an individual mind and the idea that scientific information should be restricted, for example) is more pernicious than a straightforward sad encounter. In other words, it operates at a different level from my body encountering another (a sad encounter, such as my encounter with a lion, when viewed from my perspective) or my mind with an idea (that I should be disgusted by my own body, for example, though I will qualify this example in a moment). Ideas that undermine the ability of individuals to spread adequate knowledge block the move from the first stage to the second stage of knowledge within society. This means that they affect both individual and society. Again, this idea is captured by Balibar’s (1997) term “the trans-indivi­ dual.” The effect is not limited to either the individual or society because they are not opposed. Increases of adequate knowledge denote that both individual and society are thriving. Hence, anything that blocks such communication is a serious problem. There are a number of examples of ideas and social processes that will undermine the transfer of adequate ideas within a society. I have used the examples of some religious beliefs and some ways of treating knowledge as a commodity within a capitalist society. There are less obvious ways in which the flow of adequate knowledge can be curtailed, such as the way that certain groups are treated as lacking credibility, for example. In this context, Miranda Fricker’s (2007) work on how racial and gender stereotypes can lead to mem­ bers of these groups being treated as less credible than others, either because they are stereotyped as ignorant or as liars or both, is useful. This “epistemo­ logical injustice” is epitomised by sexist expressions, such as “old wives’ tales.” It is problematic for members of these groups because it may erode their own confidence in their judgement and even their willingness to judge, both episte­ mologically and morally (see Richardson 2011). It may lead to them deferring to the judgement of others in both interpretations of events and in making moral decisions. Applying Spinoza, such an erosion of confidence also deprives others of women’s adequate knowledge or their potential to ascertain it (see Chapter 4). I would therefore like to qualify my example about my sad encounter with ideas that convey contempt for women’s bodies, mentioned above. If these ideas also reinforce a view that women lack credibility then these ideas could be classified as also inhibiting the creation and transmission of adequate knowl­ edge within society and are not just sad encounters for the women concerned. Another way of thinking about my application of Spinoza and the example of image based abuse is to employ a thought experiment by Ian Hacking. Hacking (2002) has illustrated the difference between our knowledge of human culture and of technology, both of which are human products. He points out that if

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humanity suddenly lost its memory then technology, such as battery operated devices, would (at least for a time) continue to work. Prisons would not. So the question I want to ask is: if we apply Hacking’s scenario and imagine what would happen if we collectively lost our memories, would image based abuse lose its meaning? The answer must be yes because the harm derived from the publicity is associated with others’ reactions to it and based upon a sexual double standard. It is knowledge of this stigma and the social context, that allows us to recognise this act as a betrayal. However, the emotional reaction and the recognition of betrayal does not constitute adequate knowledge. In Spinozist terms the encounter between the woman and an intimate image of herself portrayed online remains at the first stage of inadequate knowledge, producing sad passions. A move to the second stage of knowledge involves understanding why this sad encounter has occurred. Understanding the historical meaning of image based abuse does not diminish the pain of a sad encounter itself. However, such understanding is useful in recognising the social origin of the meaning of image based abuse and that it is an act of hate speech against women as a group – as well as the social psy­ chology of the individual man and the problems of his encounter with the woman concerned. This is in contrast with the individual woman blaming her­ self, which tends to happen in areas such as sexual harassment cases. Hence, feminist analysis itself can be viewed as creating ideas that increase women’s powers of acting in this situation. This is not to treat feminist analysis as a type of idealism. On the contrary, it is employed to understand a specific encounter. When the focus shifts to that of society, ideas that associate women’s sexu­ ality with degradation can be best understood by a genealogy. At different his­ torical periods this has ranged from the portrayal of women’s sexuality as so great that it is out of control (and hence to be controlled by men) and as neg­ ligible, as in the angel in the household (and hence to be controlled by men). Women’s input into culture is therefore important in Spinozist terms because it can provide information necessary to produce adequate knowledge of the encounters that produce image based abuse.

Conclusion An application of Spinoza’s framework, in particular his work on the first and second stages of knowledge and its relation to our thriving, prompts us to reframe our approach to the question of privacy: “What information should be kept private and conversely what information should be communicated?” This focuses upon the question of whether the transfer of knowledge (or information on which it can be built) simply increases sad passions or whether it can potentially increase our adequate knowledge, through the use of embodied reason. This is an approach that is sensitive to the context but does not simply associate privacy with certain places (such as the home) or certain activities (such as those pertaining to the body).

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Spinoza also alerts us to power relationships and the way in which some com­ munications can repeat inadequate knowledge in ways that maintain the status quo. The problem of cultures that predominantly reflect men’s imaginations has been well analysed, particularly from a psychoanalytic framework. Spinoza’s view of the imagination as the first stage of knowledge can be understood differently. When the images, associated with the first stage of knowledge, can be shown to perpetuate negative views of women, one way forward is to appeal to the imagi­ nation to show different images or change our perception of such images. Another – in Spinozist terms, better – solution would be to understand the subtle (and crude) mechanisms of the social subordination of women; to ask: “what needs to be in place such that image based abuse can exist and make any sense?,” for example. Hence, feminism is not simply concerned with changing the imagi­ nation but also with producing adequate knowledge. This Spinozist analysis also explains why there is a ground to feminism without the need to think about a fixed underlying essence of woman, given that, for Spinoza, our essence is defined as our “powers of acting” (or conatus), i.e. what it we do survive and thrive. It is possible to understand the ways in which those who are classified as having female bodies with specific – often degrading – meanings (which differ in diverse cultures) can increase their powers of acting. This increase in women’s conatus denotes their greater understanding of their sad and joyful encounters, an understanding that neces­ sarily entails a historical, social and economic analysis of society.

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214 Section 3 Cohen, Jean L. 1992. “Redescribing Privacy: Identity, Difference, and the Abortion Controversy.” Columbia Journal of Gender and Law 3: 43. Cohen, Jean L. 2002. Regulating Intimacy: A New Legal Paradigm. Princeton NJ: Prin­ ceton University Press. Cornell, Drucilla. 1995. The Imaginary Domain: Abortion, Pornography and Sexual Harassment. London: Routledge. Deleuze, Gilles. 1988. Spinoza: Practical Philosophy. Translated by Robert Hurley. San Francisco: City Lights Books. Deleuze, Gilles. 1990. Expressionism in Philosophy: Spinoza. Translated by Martin Joughin. New York: Zone Books. Elshtain, Jean Bethke. 1981. Public Man, Private Woman: Women in Social and Political Thought. Princeton NJ: Princeton University Press. Floridi, Luciano. 2006. “The Ontological Interpretation of Informational Privacy.” Ethics and Information Technology 7: 185–200. Floridi, Luciano. 2010. Information: A Very Short Introduction. Oxford: Oxford Uni­ versity Press. Fricker, Miranda. 2007. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press. Fried, Charles. 1984. “Privacy [A Moral Analysis].” In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 203–222. Cambridge: Cambridge University Press. Gatens, Moira. 1996. Imaginary Bodies: Ethics, Power and Corporeality. London: Routledge. Gatens, Moira. 2004. “Privacy and the Body: The Privacy of the Affect.” In Privacies: Philosophical Evaluations, edited by Beate Rössler, 113–132. Stanford CA: Stanford University Press. Gatens, Moira, and Genevieve Lloyd. 1999. Collective Imaginings: Spinoza, Past and Present. New York: Routledge. Gavison, Ruth. 1980. “Privacy and the Limits of Law.” The Yale Law Journal 89 (3): 421–471. https://doi.org/10.2307/795891. Goldfarb, Sally F. 2000. “Violence against Women and the Persistence of Privacy.” Ohio State Law Journal 61: 1. Hacking, Ian. 2002. Historical Ontology. Cambridge MA: Harvard University Press. Hampton, Jean. 1997. “The Wisdom of the Egoist: The Moral and Political Implications of Valuing the Self.” Social Philosophy and Policy 14: 21–51. Hampton, Jean. 2007. The Intrinsic Worth of Persons: Contractarianism in Moral and Political Philosophy. Edited by David Farnham. Cambridge: Cambridge University Press. Hampton, Jean. 1992. 2018. “Feminist Contractarianism.” In A Mind of One’s Own: Feminist Essays on Reason and Objectivity, edited by Louise M. Antony and Char­ lotte Witt, 2nd ed., 337–368. New York: Routledge. Higgins, Tracy E. 1999. “Reviving the Public/Private Distinction in Feminist Theorizing.” Chicago-Kent Law Review 75 (3): 847–867. James, Susan. 1996. “Power and Difference: Spinoza’s Conception of Freedom.” Journal of Political Philosophy 4: 207–228. https://doi.org/10.1111/j.1467-9760.1996.tb00050.x. James, Susan. 2002. “Freedom and the Imaginary.” In Visible Women: Essays on Fem­ inist Legal Theory and Political Philosophy, edited by Susan James and Stephanie Palmer, 175–196. Oxford: Hart.

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James, Susan. 2008. “Democracy and the Good Life in Spinoza’s Philosophy.” In Inter­ preting Spinoza: Critical Essays, edited by Charles Huenemann. Cambridge: Cam­ bridge University Press. James, Susan. 2012. Spinoza on Philosophy, Religion, and Politics. Oxford: Oxford University Press. James, Susan, Genevieve Lloyd, and Moira Gatens. 2000. “The Power of Spinoza: Fem­ inist Conjunctions.” Hypatia 15 (2): 40–58. www.jstor.org/stable/3810654. Jarvis Thomson, Judith. 1984. “Remarks on causation and liability.” Philosophy and Public Affairs 13 (2): 101–133. Landes, Joan B., ed. 1998. Feminism, the Public and the Private. Oxford and New York: Oxford University Press. Lloyd, Genevieve. 1994. Part of Nature: Self-Knowledge in Spinoza’s Ethics. Ithaca NY: Cornell University Press. MacKinnon, Catharine A. 1989. Toward a Feminist Theory of the State. Cambridge MA: Harvard University Press. Montag, Warren. 1989. “Spinoza: Politics in a World without Transcendence.” Rethinking Marxism 2 (3): 89–103. https://doi.org/10.1080/08935698908657877. Montag, Warren. 1999. Bodies, Masses, Power: Spinoza and His Contemporaries. London: Verso. Nussbaum, Martha C. 2000. “The Future of Feminist Liberalism.” Proceedings and Addresses of the American Philosophical Association 74 (2): 47–79. http://www.jstor. org/stable/3219683. Okin, Susan Moller. 1989. Justice, Gender, and the Family. New York: Basic Books. Pateman, Carole. 1989a. “Feminist Critiques of the Public/Private Dichotomy.” In The Disorder of Women, 118–140. Oxford: Polity. Pateman, Carole. 1989b. “‘God Hath Ordained to Man a Helper’: Hobbes, Patriarchy and Conjugal Right.” British Journal of Political Science 19 (4): 445–463. https://doi. org/10.1017/S0007123400005585. Richardson, Janice. 2009. The Classic Social Contractarians. London: Ashgate. Richardson, Janice. 2011. “The Changing Meaning of Privacy, Identity and Con­ temporary Feminist Philosophy.” Minds and Machines 21 (4): 517–532. https://doi. org/10.1007/s11023-011-9257-8. Richardson, Janice. 2012. “If I Cannot Have Her, Everybody Can: Sexual Disclosure and Privacy Law.” In Feminist Perspectives on Tort Law, edited by Janice Richardson and Erika Rackley, 145–162. Abingdon: Routledge. Richardson, Janice. 2014. “Privacy.” In The Encyclopedia of Political Thought, edited by Michael T. Gibbons, Diana Coole, Elizabeth Ellis, and Kennan Ferguson. Chichester: Wiley. http://dx.doi.org/10.1002/9781118474396.wbept0829. Richardson, Janice. 2015. Law and the Philosophy of Privacy. New York: Routledge. Rössler, Beate, ed. 2004. Privacies: Philosophical Evaluations. Stanford CA: Stanford University Press. Rössler, Beate, ed. 2005. The Value of Privacy. Cambridge: Polity. Scott, Joan Wallach, and Debra Keates. 2004. Going Public: Feminism and the Shifting Boundaries of the Private Sphere. Champaign: University of Illinois Press. Shannon, Claude Elwood. 1948. “A Mathematical Theory of Communication.” Bell System Technical Journal 27 (3). https://doi.org/10.1002/j.1538-7305.1948.tb01338.x. Shannon, Claude Elwood, and Warren Weaver. 1949. The Mathematical Theory of Communication. Urbana: University of Illinois Press.

216 Section 3 Siegel, Reva B. 1996. “‘The Rule of Love’: Wife Beating as Prerogative and Privacy.” Yale Law Journal 105: 2117–2207. http://www.jstor.org/stable/797286. Spinoza, Benedictus de. 1985. The Collected Works of Spinoza. Edited and translated by Edwin M. Curley. Vol. 1. 2 vols. Princeton NJ: Princeton University Press. Spinoza, Benedictus de. 2000. Political Treatise. Translated by Samuel Shirley. Indiana­ polis: Hackett. Spinoza, Benedictus de. 2007. Theological-Political Treatise. Edited by Jonathan Irvine Israel. Translated by Michael Silverthorne and Jonathan Irvine Israel. Cambridge and New York: Cambridge University Press. Warren, Samuel D., and Louis D. Brandeis. 1984. “The Right to Privacy.” In Philoso­ phical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 75–103. Cambridge: Cambridge University Press,. Yovel, Yirmiyahu. 1989. Spinoza and Other Heretics 1: The Marrano of Reason. Prin­ ceton NJ: Princeton University Press.

Chapter 12

Readings of Warren and Brandeis’ “The Right to Privacy” Gendered and Raced Bodies

The increased scholarship on privacy, sparked by the increased risks caused by online communications, has resulted in a greater familiarity with Samuel Warren and Louis Brandeis’ influential 1890 journal article “The Right to Privacy.” With rhetorical flourish, Warren and Brandeis argued in favour of the development of a tort to protect privacy in the US, focusing mainly on the domestic home. They were scathing about encroachments by the press into the domestic sphere. They also outlined a variety of cases that could serve as pre­ cedents in favour of the establishment of such a privacy tort. However, there is a string of relevant legal cases that they omitted: cases that stressed the impor­ tance of domestic privacy as a reason to ignore white, upper-class husbands’ domestic violence. In this chapter, I consider the gender, race, and class issues of the nineteenth-century US to contextualise Warren and Brandeis’ “Whig history” and their perspective on privacy.

Introduction In this chapter, I will explain the relevance – and irony – involved in drawing together the following two quotations in relation to the privacy of the home in nineteenth-century America: The intense intellectual and emotional life, and the heightening of sensa­ tions which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature. (Warren and Brandeis 1890, 195) If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the DOI: 10.4324/9780429329678-15

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curtain, shut out the public gaze, and leave the parties to forget and forgive. (State v Oliver, 1874)1 The first quotation is from Warren and Brandeis’ famous and influential, “The Right to Privacy” from the Harvard Law Review of 1890. I will return to the quote from State v Oliver (1874). Brandeis was Warren’s law partner and a future Supreme Court Judge. As upper-class, white men, they characterise their concern in the following terms: Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. … To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. (Warren and Brandeis 1890, 197) While Warren and Brandeis’ paper is often cited in privacy literature, the initial pages, which provide a brief Whig history of the development of tort law, usually go without comment. It is useful to consider their initial analysis because it is so rich in rhetoric and unselfconsciously illustrative of the ways in which tort law has been focused upon protecting privileged men against harms that they perceive themselves as facing. As I will discuss, Warren and Brandeis’ perspective ignores and even facilitates those harms experienced by others, particularly in relation to gender and race. There is therefore an irony in their view that the common law recognises (and should go further to aid): “man’s spiritual nature, of his feelings and his intellect” (Warren and Brandeis 1890, 193). In support of their arguments for the development of privacy case law in the US, Warren and Brandeis (1890) detail a number of potential “privacy cases” that existed at that time. Being lawyers, they were professionally interested in thoroughness of case analysis, which adds weight to their argument in favour of the creation of a tort against intrusions upon privacy, which was ultimately successful. It is therefore striking that they omit a particular type of case that had recently developed at this time (from 1871 onwards) in which judicial analysis of the importance of domestic privacy in the US common law was of central importance to the judicial decisions. These are cases concerning domes­ tic violence initially in criminal and later in tort law. I will outline Warren and Brandeis’ initial description of common law development and then consider their omission of these relevant cases by drawing on Reva B. Siegel’s analysis. I will then discuss the issues of race and class as well as gender by including the insights of both Siegel (1996) and Eden Osucha (2009). Throughout, I will 1

State v Oliver 1874, 70 N.C. 60, 61–62; cited in Siegel 1996, n. 146. Italics added by Siegel.

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analyse the way that different subordinated bodies have been subject to abuse and even characterised as monstrous aberrations from the “norm.”

Warren and Brandeis’ Whig History of the Common Law Before Warren and Brandeis’ (1890) outline the common law case developments that support their claim for a right to privacy, they argue more generally in favour of the way that the common law develops. They describe this judgemade law of torts as being in an “eternal youth” (Warren and Brandeis 1890, 193), capable of adapting to political, social, and economic changes. They argue that it was an opportune moment for judges to extend tort common law rights to allow individuals to be able to sue in defence of their own privacy. As a result, they produce a historical view of the development of the common law, which, they argue, should develop from its early days of ensuring the defence of bodily integrity, employing the torts of battery, assault, and false imprisonment, to now include the proposed tort against invasion of privacy. It is clear that they have in mind the need to maintain the privacy of the domestic home. They claim that this need arises because, as humanity becomes more civilised, this development made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition. (Warren and Brandeis 1890, 195) While they refer to “men,” which was often employed to refer to all humans, in this case they clearly meant males, given the examples of legal development discussed, as I will demonstrate by tracing their arguments. Warren and Brandeis outline the development of the common law, starting with the tort of battery, which allowed some people to sue (in civil courts) anyone who subjected them to wrongful touching, even without physical injury: “The least touching of another” will constitute a battery (Holt CJ in Cole v Turner (1704)).2 Warren and Brandeis fail to note that those who could not afford to sue would have no legal rights in this area. In addition, married women who were subject to domestic violence were denied this right, given that wives under the doctrine of coverture did not have the right to sue. Even after married women gained property rights through legislation, they remained unable to sue their husbands. Even now, when I make this point I can imagine someone replying that this is a “special case,” despite the number of people affected. However, in tort law, the familiar treatment of women as an aberration resulted in them being denied legal relief even to the most ancient right to protect bodily integrity – a right that Warren and Brandeis treat as uncontentious and 2

Cole v Turner (1704) KB 108.

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well established. The positioning of women’s potential torts as exceptional con­ tinues, and was discussed in Chapter 10. With dewy eyes, Warren and Brandeis continue to extol the merits of the common law of tort, as they describe its development from the creation of the tort of battery to the emergence of the tort of assault that protects against the apprehension of a battery. Later, the common law tort of nuisance was developed and then, importantly, Warren and Brandeis (1890, 194) comment that, “regard for human emotions soon extended the scope of personal immu­ nity beyond the body of the individual.” In giving legal examples of this common law development to take into account human emotions, Warren and Brandeis illustrate that they have only men in mind: Man’s family relations became a part of the legal conception of his life, and the alienation of a wife’s affections was held remediable. Occasionally the law halted, as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents’ feelings, an adequate remedy was ordinarily afforded. (Warren and Brandeis 1890, 194) Both of these torts, while evoking the need to defend against emotional harm with a recognition of “man’s spiritual nature” are really concerned with the emotions that men feel when they cannot control women in their family. The first illustration is of a wife who has had sex with a man other than her hus­ band. The common law developed so that her husband could sue the other man. The reference to the “alienation of a wife’s affections” by her lover ren­ ders the woman simply an object between two men rather than an agent in her own right. To be more precise, the wife’s “affections” are alienated by being transferred from her husband to another. However, the other man is viewed as having taken them and as being the active party. The second development in common law, that Warren and Brandeis employ to illustrate its adaptability in giving legal recognition to men’s “thoughts, emotions, and sensations” is that of a legal remedy against the seduction of daughters. Again, the woman is characterised as lacking agency. Warren and Brandeis are concerned that the common law had not been extended such that the father could sue his daughter’s “seducer” – a term that elides the question of whether the daughter wanted to have sex or was even raped. The etymology evokes a status relationship that is apt in Warren and Brandeis’ usage and the common law development that they describe. From the 1520s “seduction” referred to persuading “a vassal to desert his allegiance or service” (etymonline 2022). Warren and Brandeis note that a legal remedy can be given (to the “parents”) through the use of a legal fiction that they had lost their right to their

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daughter’s work. However, the reference to compensation for “parents’ feel­ ings” obscures the fact that the wife did not have standing to sue in her own right. This legal approach to a daughter’s seduction adapts feudal law to treat the daughter as akin to a feudal serf. In the operation of the law of quod ser­ vitium amisit a feudal master could sue if someone had injured his serf to the extent that the serf could not perform services for the master. Warren and Brandeis argue that the use of this law was applied in the case of a seduction of a daughter to get damages based on the “fiction” that the “parents” had lost their daughter’s services. In fact, they argue, this was a fiction to allow com­ pensation for their feelings over the loss of family honour that they experienced. Today, this interpretation provided by Warren and Brandeis still evokes images of “honour killings” of young women by men in their families. The same approach of employing feudal precedents in tort law allowed husbands to be compensated by a defendant who injured his wife such that she could not provide him with “consortium” (sex, care, and housework). The UK courts refused to extend this approach to compensate a wife when the defendant had negligently injured her husband to the extent that he could no longer have sex with her (Best v Samuel Fox and Co. Ltd and Another (1952)).3 As late as 1982 in the UK, this was only altered by statute.4 In summary, Warren and Brandeis’ illustrations of the common law’s development – supposedly in step with greater civilisation and heightened sensitivity – is really not so much the development of finer feeling than a reflection of these white, upper-class men’s “sensitivity” over the control of women in the household or other men’s sexual abuse of them.5 Warren and Brandeis continue their influential argument in favour of priv­ acy within the domestic home by considering the common law cases that existed in 1890 that could be developed to form the basis of a tort to protect privacy. As these cases are central to their argument, the case analysis is detailed. However, it is not exhaustive. They omit a set of cases that had been developing from 1871, only 19 years earlier: those cases that relied upon the privacy of the domestic home to deny wives’ rights against battery by their husbands. These cases were initially brought in criminal law prior to wives being able to sue in torts.

3 4 5

Best v Samuel Fox and Co. Ltd and Another [1952] 2 All ER 394.

Administration of Justice Act (UK) 1982.

In the context of US criminal law at that time, Angela Y. Davis, comments that “In

the United States and other capitalist countries, rape laws as a rule were framed originally for the protection of men of the upper classes whose daughters and wives might be assaulted. What happens to working-class women has usually been of little concern to the courts; as a result, remarkably few white men have been prosecuted for the sexual violence they have inflicted on these women. While the rapists have seldom been brought to justice, the rape charge has been indiscriminately aimed at Black men, the guilty and innocent alike” (Davis 1981, 172).

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Warren and Brandeis’ Omission Siegel (1996, 2117–207) details a point of transition within both criminal and (later) in tort law applied to domestic violence cases. I will trace her arguments to show that the law in relation to domestic violence, which comes to rely upon arguments regarding privacy of the domestic home in both criminal and tort law, is a relevant area of case law that Warren and Brandeis omit from their case analysis. It is also clear why they would not want to employ it. Despite its legal relevance, it hardly reflects either their cosy image of the domestic home nor their view of the development of tort law in which they envisage the ancient right to sue if subject to the tort of battery as already fully developed. These domestic violence cases also challenge any assumption that husbands and wives share an identity of interest, that was still assumed by John Rawls, 81 years later in 1971, as discussed in Chapter 5. Siegel provides a (rather different) analysis of the development of tort law from that of Warren and Brandeis. With her own detailed case analysis, she illustrates how the development of privacy cases (in the context of domestic violence) failed women. I draw on her important work to frame my discussion of Warren and Brandeis. Siegel analyses the judicial reasoning concerning privacy in domestic violence cases from 1871 in the US. This marked a point in time when feminists and the temperance movement successfully challenged the established legal view that husbands had a legal prerogative to batter their wives, providing they did not inflict permanent injury. This argument started 19 years prior to Warren and Brandeis’ (1890) “On the Right to Privacy” with two cases: Fulgham v State (1871)6 and Commonwealth v McAfee (1871).7 In both these cases, judges refused to accept the old view that husbands’ maintained their prerogative. This prerogative had became unpopular with the public as a result of the changing image of marriage, which became characterised as a sentimental, yet still very unequal, relationship. The temperance movement in US emphasised the brutal­ ity of drunk husbands. In contrast, feminists attacked inequality in marriage and the stark differences that still exist today with regard to the physical security, property owned, and work carried out by wives compared with hus­ bands, discussed by Siegel (1996, 2119). Siegel describes how, under public pressure, the courts’ rejection of a hus­ band’s prerogative to batter his wife (i.e. his immunity from the criminal law and then also from the tort of battery) was a pyrrhic victory. Importantly, Siegel explains the mechanisms by which judges were (and are) able to maintain an unjust status quo even against popular dissent. US common law judges, while criticising husbands’ prerogative, managed to maintain its effect by adopting a different excuse for lack of court intervention, based on the perceived need for domestic privacy. This mirrors the concern expressed by Warren and Brandeis 6 7

Fulgham v State (1871) 46 Ala. 143, 146–47 (1871). Commonwealth v McAfee 108 Mass. 458, 461 (1871).

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with similar class and race biases, as I will discuss below. Siegel refers to this process, which she describes as “preservation through transformation” and argues that the employment of domestic violence is only one illustration of such a conservative legal strategy. As Siegel points out, referring to “status laws,” i.e. laws which treat some persons as having a subordinate (feudal) status: [C]ivil rights reform can breathe new life into a body of status law, by pressuring legal elites to translate it into a more contemporary, and less controversial, social idiom. I call this kind of change in the rules and rhetoric of a status regime “preservation through transformation,” and illustrate this modernization dynamic in a case study of domestic assault law as it evolved in rule structure and rationale from a law of marital prerogative to a law of marital privacy. (Siegel 1996, 2119) Siegel goes beyond her analysis of domestic violence to make a more general point about the way that judges maintain “status law,” which are based on (and reinforcing) the subordinate status of women. Similarly, she demonstrates other such mechanisms within tort law, for example, the way that tort law has taken women as a special case (different from men as the norm), as mentioned above. Siegel’s observations are consistent with the way that traditionally philosophers have characterised women as monstrous aberrations from the male norm (as discussed in the first section, along with Christine Battersby’s and Adriana Cavarero’s alternative conceptual frameworks). The maintenance of such status laws represents a failure of the common law to develop from feudal law’s assumptions regarding subordination in certain areas – a sclerosis that under­ mines its so-called “eternal youth” (Warren and Brandeis 1890, 193). The cases that Siegel cites provide legal examples of what Carole Pateman describes as central to feminism, discussed in Chapters 5 and 8. Pateman remarks: The dichotomy between the private and public is central to almost two centuries of feminist writing and political struggle; it is ultimately what the feminist movement is about. (Pateman 1989, 118) The attitude of the judges in these cases reflects, in law, the political theory of John Locke who draws a distinction between sovereign power and a husband’s power. The implication of Locke’s distinction was that the private sphere of the home was not to be viewed as “political” but as a separate private sphere, as discussed in Chapter 8 in the context of Pateman’s critique. Where there has been sufficient political will, the scourge of domestic vio­ lence has resulted in legislation rather than the development of common law, as

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illustrated by the enactment of recommendations by Victoria Royal Commis­ sion on Domestic Violence (2015).8 This means that there is a tendency to mischaracterise violence against wives as outside the domain of tort law, par­ ticularly because of the way that law is taught under different core subjects in Law Schools. Those who do advocate use of the common law rather than (or in addition to) legislative reform may urge women to adopt its conceptual frame­ work. This way of viewing the world characterises some harms to women in ways that jar with their experiences. For example, Anita Bernstein (2019) in her book The Common Law Inside the Female Body illustrates how women can employ the common law in cases such as rape. However, to do so she draws an analogy with trespass to land, saying: Along with lawyers, scholars, and members of the public, common law judges have failed to recognize that women are in charge of their bodies comparable to how owners of lands and chattels are in charge of what they possess. Sole and absolute dominion is theirs. Not wishing to share the interior of oneself suffices to make entry into this locus an action item for the common law when another person threatens to violate this wish. (Bernstein 2019, 116) While there may (or may not) be pragmatic benefits to fitting women within such a strange legal framework, there is a price to be paid for using such an alien (and alienating) concept. There is also a problem when bodily integrity is characterised in terms of owning oneself (which is prompted by viewing oneself as one’s own land), i.e. this draws on the concept of property in the person. I discuss Carole Pateman’s critique of this Lockean concept in Chapters 5 and 8. Returning to the nineteenth century, Siegel also illustrates the way that legal judgments regarding privacy reflected both racism and class prejudice that sometimes favoured the wife but for the wrong reasons. For example, Fulgham v State (1871) concerned a husband and wife who were Black, former slaves in the US and resulted in one of the rare findings against a husband in this area of law. Siegel convincingly argues that this judicial decision was based on the race of the husband and not sympathy for the wife who was subject to domestic violence. Rather than “draw the curtain” (State v Oliver, 1874)9 it was even argued at the time that Black men should be subject to whipping as punishment for domestic violence, a view that was never applied to white men. Siegel quotes the Reverend Phebe Hanaford to draw out the intersection between race and conceptions of masculinity in that culture: We may well assume that the wife-beater does not like bodily pain, and a short time spent at the whipping-post – he being compelled to be passive, 8 9

https://www.vic.gov.au/about-royal-commission-family-violence. State v Oliver 1874, 70 N.C. 60, 61–62; cited in Siegel 1996, n. 146.

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and some other man with strong muscles vigorously active, – the wifebeater learns two lessons: one, how it feels to be beaten, and the other, that the law will not allow him to whip his wife without inflicting the same upon himself. The wife will not be likely to receive a second beating. (Hanaford 1899, 108; cited in Siegel 1996, 2138; emphasis inserted by Siegel) Siegel (1996, 2120) also discusses the class bias of the judiciary, in these domestic violence cases. They characterised working-class men as more violent than upper-class men with whom they identified. Judges also claimed that upper-class men had more to lose if their private affairs were to be publicised. At first glance, this adoption of the protection of domestic privacy to justify husbands’ immunity from criminal prosecution (and later – when women could sue in their husbands – from civil litigation in tort law)10 hardly appears in keeping with Warren and Brandeis’ article. While both focus on the regulation of the domestic sphere, it is difficult to view domestic violence in terms of “man’s spiritual nature, of his feelings and his intellect” (Warren and Brandeis 1890, 193) that arises as a result of “civilisation”. However, as Siegel illustrates, this is exactly the way that judges started to justify their refusal to interfere in such cases. Quotations from the judiciary resonate with those of Warren and Brandeis, when ruling that, If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive. (State v Oliver (1874))11 The reference to the “parties” ignores the fact that it is only the wife who has been harmed and that the husband has no reason to alter his lack of respect for her. In such contexts, Jean Hampton argues that forgiveness is not appropriate. (See Chapter 6 for my analysis of this argument.) As discussed, Warren and Brandeis (1890, 197) also express their concern with the “effrontery” of the press in ways that reflect their upper-class expectations. Class and racial bias play a factor in ways that illustrate that the upper-class, white, male judges and lawyers wanted to safeguard the respectability of men like them. What is being challenged when the domestic sphere is publicised is male rule within the home. However, as Warren and Brandeis argue, there is also a concern about publicity regarding sex, which – as a result of a sexual double standard – impacted upon women more harshly. This is particularly associated with images created by the 10 See Stemmler (1917). The author states that the Married Women’s Acts regarding property and contract did not include a right to sue a husband, which were only developed later, in 1914 in some US states. 11 State v Oliver (1874) 70 N. C. 60, 61–62; cited in Siegel (1996, 2158). This is one of the quotations with which I started this chapter.

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Kodak camera. I will now examine this characterisation of (upper-class, white) women as naturally vulnerable to harm from invasions of privacy that employ their images.

Photographic Images and Subordination Osucha (2009) in “The Whiteness of Privacy” reads Warren and Brandeis’ “The Right to Privacy” from the perspective of the interaction between race, class, and gender. It is useful to consider her arguments while bearing in mind the later development of image based abuse (a broader and more useful term than the earlier “revenge porn”) that depends upon subordination while also rein­ forcing it.12 Osucha describes the legal case Roberson v Rochester Folding Box Company (1902)13 that came before the courts shortly after Warren and Bran­ deis’ “The Right to Privacy” was published in 1890. Before turning to her fur­ ther important comments on race, Osucha makes a useful remark regarding the place of bourgeois, white women in Warren and Brandeis’ paper: [B]ourgeois women’s exemplary status for the negative depiction of media publicity reflects a double and contradictory symbolic function of the white female body – its positioning both as a naturalized object of visual con­ sumption and as the privileged signifier of domesticity in the traditional public/private distinction. The effectiveness of this symbolism in shaping the early history of the privacy doctrine can be seen in the sympathetic spectacle of wounded white femininity in Roberson and in the immediacy of the legislative response. (Osucha 2009, 70–71) This analysis sheds light, not simply on the case law that follows Warren and Brandeis’ paper and the sympathetic public reaction to Roberson, to be dis­ cussed, but also to the way that the bourgeois, white female body is perceived as vulnerable. This is particularly the case with young women such as Rober­ son, who was 18 years old when the lawsuit started (Kornstein 2006, 3). I will outline Roberson’s case and then explore Osucha’s analysis. In Roberson v RFBC (1902) the Plaintiff was a teenage, upper-class, white woman whose photograph was taken without her consent and employed in an advertisement for flour with the heading “Flour of the Family.” Her image was attractive but at trial this was viewed as part of the problem, given that she was viewed as a “generalized object of exchange, a typified product” (Osucha 2009, 12 For a brief summary, see my Law and the Philosophy of Privacy (Richardson 2015, 42–44). 13 Abigail M. Roberson, an Infant, by Margaret E. Bell, her Guardian ad Litem, Respondent, v The Rochester Folding Box Company et al., Appellants (1902) 171 N. Y. 538. I will refer to Roberson v RFBC (1902).

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73). Osucha analyses the racism implicit within the case. Given the prevalence of demeaning racist images in the media in US at that time, she argues that, for a white woman to have her image shown in public was therefore to be asso­ ciated with the subordinated position of Black persons. She argues that this racialisation of visual images lay behind Warren and Brandeis’ “redefinition of privacy as a privileged form of property, and publicity as an invidious experi­ ence of injury” (Osucha 2009, 73). Roberson’s tort claim was framed in terms of privacy, based on Warren and Brandeis’ influential article and, as a result, succeeded at first instance. How­ ever, it was later rejected by New York’s Court of Appeals on the basis that there was no existing precedent. This was a very unpopular judgement. Such was the public sympathy with Roberson that the law was amended in 1903 by statute under the New York Civil Rights Law, which made illegal the use of the image of “any living person” without consent.14 Public sympathy for Roberson can be compared with the courts’ concern with the humiliation that would be suffered by bourgeois men if their domestic violence were to be publicised by court intervention. These reactions to the potential for humiliation as a result of publicity differ. Roberson was viewed as vulnerable because images of her white female body in public were seen as degrading to her. The court noted that she was, so humiliated … by the notoriety and by the public comments it has pro­ voked, as to cause her distress and suffering, in body and in mind, and to confine her to her bed with illness. (Roberson v Rochester Folding Box Company (1902) cited in Osucha 2009, 66) As Osucha points out, the image itself was evidence of her injury. Its display was akin to Roberson herself being seen in public places where it was not respectable for her to be seen. In contrast, the courts’ concern to protect the privacy of “wife beaters” (and to allow them to attempt to control their wives through violence) concerned the man’s character not his body. In the case of men, in particular upper-class, white men, there was no vulnerability attached to the display of their bodies in public. Instead, the judges’ concern sought to avoid a public display of their governance (and brutality) in the home. Osucha also draws attention to the racist images in newspapers. She argues that, when images of Black persons were regularly demeaned in the press then anyone whose picture is publicised risked being seen in similar degraded terms. 14 The law is still in force. New York Civil Rights Law (2014) Section 50 defines the invasion of privacy as any instance in which “[a] person, firm or corporation […] uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person.” Section 51 provides “action for injunction and for damages.”

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This is an important argument and the aspect about racism is well made but, as Osucha appreciates, there is more to the “vulnerability” of women. Osucha points out that Warren and Brandeis employ this “vulnerability” in support of their argument for privacy rights. They draw attention to the injury that women would suffer through “the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagina­ tion” (Warren and Brandeis 1890, 212; discussed by Osucha 2009, 70). There is no doubt that Roberson suffered humiliation. However, the idea that women are naturally vulnerable to this sort of humiliation because of their bodies is obviously problematic. I would also add that there is a potentially different legal and social under­ standing of Roberson’s case facts. Some of the public could see her photograph and assume (wrongly) that she had consented to its use. This would lower her in the estimation of “right thinking” people at that time if it were assumed that “respectable” bourgeois, white women would not agree to such a contract. The claim would then employ the tort of defamation rather than attempt a new privacy claim. There is a later successful case of this type, Tolley v Fry & Sons Ltd. (1931).15 The plaintiff (Mr Tolley), a successful amateur golfer, won his tort claim when, without his consent, his image was used in an advertisement for Fry’s chocolate. He was depicted as golfing, with the defendant’s chocolate bar showing from within his pocket. Given that one interpretation of a rea­ sonable viewer would be that he had been paid for the image, this would have compromised his amateur status as a golfer (thereby lowering him in the esti­ mation of right thinking people in general, a necessary element in proving defamation). While this comparison works to support the idea that the public may reasonably assume that Roberson had consented to the use of her image, unless her gender made her case distinguishable from (the later) Tolley v Fry & Sons Ltd., it assumes the very point that needs further examination: the nature of the psychological injury to Roberson.16 Tolley did not feel demeaned by his image being made public per se but simply because of the implications of hypocrisy, given his amateur status. For Roberson, it is her female body itself that appears to create vulnerability to public exposure (raising privacy issues in torts) and the implication that she agreed to be paid to expose her image (when a “decent” woman would not have done so) that could potentially have grounded a defamation claim in that cul­ ture. In the event, the tort employed was that of protection of privacy. Below, I will discuss Judy Purdom’s “Judging Women: Rethinking Shame through Cor­ poreality” (Purdom 2000). Purdom traces the way that cultures have associated female bodies with shame, along with its implications regarding image based abuse as gendered hate crimes today. 15 Tolley v JS Fry and Sons [1931] AC 333.

16 I am discussing these cases but not arguing that Tolley v JS Fry (1931), should have

been relied upon by Roberson as a precedent. It was a later case.

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The gendered concern for women’s vulnerability to injury as a result of the appropriation of her image is repeated later in philosophical conceptions of the type of harm that characterises privacy violations. Later, in 1964, Edward Bloustein (1964) refers to Roberson v RFBC (1902) to explain what he meant by “human dignity and individuality” that he argues should form the basis for privacy protection in law (Richardson 2015, 25–26). In the following strange quotation, he refers to Roberson’s case as involving a “photograph [that] was exhibited for advertising purposes” while also referring to the facts of other legal cases: What distinguishes the invasion of privacy as a tort from the other torts which involve insults to human dignity and individuality is merely the means used to perpetrate the wrong. The woman who is indecently petted suffers the same indignity as the woman whose birth pangs are overseen. The woman whose photograph is exhibited for advertising purposes is degraded and demeaned as surely as the woman who is kept aboard a pleasure yacht against her will. (Bloustein 1964, 1003) If Bloustein had applied tort law in the usual way then, “the woman who is indecently petted” should be able to sue under the tort of (sexual) battery; and the woman trapped on the boat, under the tort of false imprisonment, both generally viewed as fundamental and ancient torts that protect bodily integrity, as illustrated by Warren and Brandeis’ article. It appears odd to characterise these facts only as “privacy issues.” In human rights law, privacy rights must be balanced against the importance of free speech in the public interest. In con­ trast, laws against the (sexual) battery (being indecently petted, presumably against her will) and false imprisonment (held on a boat against her will) that are being described are more fundamental rights that are not weighed against other rights. There is a further problem with the way in which this analysis is gendered. I have argued (Richardson 2015, 25–26) that in the examples that employ women, “individuality” is not appropriate. In Bloustein’s conflation of “human dignity and individuality” as a category, the attack on “human dig­ nity” appears more appropriate for the examples he provides concerning women’s bodies (and is in keeping with how Warren and Brandeis describe the “vulnerability” of women’s bodies). There is no “individualistic” way of being subject to a sexual assault, battery, and false imprisonment. In these cases, individuality is impossible because the female victim-survivor is being treated as an object of abuse whereas “individuality” implies that a subject has chosen a course of action and carried it out in a novel manner. It is also difficult to envisage giving birth in an individualistic manner. In contrast, the example Bloustein provides that certainly pertains to men does speak to “individuality.” He says,

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The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. (Bloustein 1964, 1003) The way that Bloustein is able to link Roberson’s case, in which the injury arose from her image being seen in public, with a case entailing a sexual battery also needs to be considered. When women are discouraged from being public figures then the circulation of their images (in what would otherwise be a usual photograph) appears more disturbing and potentially sexualised, as indicated by Warren and Brandeis’ concern with the vulnerability of women to publicity. This concern has shifted to image based abuse regarding sexual images, which can form the basis of blackmail. Women (and men) in such cases do not want compensation but to have the images removed quickly from the internet. As a practical issue, this may be facilitated by approaches other than tort law, as illustrated by the work of Australia’s eSafety Commissioner.17 Self-possession and Shame In comparison with intrusive pictures, Osucha considers how images can be employed in order to depict someone as having superior status, such as the portraiture in stately homes, in which people appear “self-possessed” and as having “interiority” (Osucha 2009, 78). Such self-possession is contrasted with racist images of Black persons, particularly those caricatured in the racist press, and the picture of Roberson, who was perceived as being vulnerable to being “dispossessed” by the commodification of her image. Osucha explores how the middle classes at that time started to access portraiture through the use of photographs, mimicking the grandeur of upper class portraiture. (For the way in which such photographs of the self (now “selfies”) developed, see Susan Sontag [1973] 2005). In this section, I will first explain the meaning of self-possession and then consider the issue of shame with which it is opposed, in the context of photographs and pictures of the body. First, the use of the terms “self-possession” by Osucha in reference to the honorific portraiture of the upper classes needs to be clarified in the light of Carole Pateman’s work, discussed in Chapters 5 and 8. What is being evoked by Osucha is an image of “superior” status. This lies in contrast with the position of workers and women who are viewed as exchanging their “property in the person” for a wage or material support, which is also described in terms of “possessive individualism.” Pateman discusses how this exchange involves treating parts of oneself as if they were commodities and involves a relationship of subordination that is managed through contract in modernity. This differs from the meaning of the “self-possessed” depictions of aristocrats, which refers 17 https://www.esafety.gov.au/key-issues/image-based-abuse.

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to a calmness associated with being confident and self-composed. This is con­ text dependent, of course. While the image of Roberson may have appeared self-composed in a different setting, i.e. framed and displayed within the home, this understanding of it was undermined when the same image could be seen in “stores, warehouses and salons,” where she could be recognised and was, as a result, subject to “scoffs and jeers” (Roberson v RFBC 1902).18 This difference in ways of describing “self-ownership” is illustrated by the philosopher of information, Luciano Floridi, who (rightly) explains that some (but not all) of our data is an expression of “what she or he is” (Floridi 2006, 112). He captures this meaning by saying that to describe my data as “mine” evokes a similarity with “my body” in contrast to “my car.” For neo-liberals more aspects of ourselves are to be viewed in terms of being objects for sale in a market. Floridi rejects this commodification of our data and, like Warren and Brandeis, argues that there is a distinction between civil wrongs that harm our feelings and other harms. While not underplaying other types of harms, this harm draws its sting from (and reinforces) the way in which the female body has been viewed as shameful in misogynist societies. As Osucha (2009, 97–98) details, there were also concerns regarding race and class involved in the experience of Roberson having her image published. Osucha draws a stark comparison, in nineteenth-century America, between Roberson and the image of a Black woman portrayed as “Aunt Jemima,” that – like Roberson’s pic­ ture – was used to advertise a product, but also drew upon racist stereotyping and cosy portrayals of the horrors of slavery. In trying to understand the difference between the pictures of the upper class in their stately homes as appearing “self-possessed” compared with the demeaning images of Black persons in the press, it is also useful to consider the way that artistic representations of the human body have been understood. In “The Naked and the Nude,” Kenneth Clark (1972) draws the following distinction: To be naked is to be deprived of our clothes, and the word implies some of the embarrassment most of us feel in that condition. The word “nude,” on the other hand, carries, in educated usage, no uncomfortable overtone. (Clark 1972, 3) While the bodies of the aristocracy and the racist, caricatured bodies were all clothed, Clark’s distinction between the naked and the nude – those bodies that are stigmatised compared with ideal bodies – still resonates. Women’s bodies in art are particularly problematic for Clark. As Christine Battersby makes plain, for Clark the universal ideal of the nude body is male and signifies “power, 18 Per Chief Justice Parker in Abigail M. Roberson, an Infant, by Margaret E. Bell, her Guardian ad Litem, Respondent, v The Rochester Folding Box Company et al., Appellants (1902) 171 N.Y. 542.

232 Section 3

rationality, harmony, beauty, proportion” (Battersby 2007, 142). While women should be a suitable counterpart to the male nude, for Clark, they let the side down by returning to a shape that emphasises their biological functions. Employing Clark’s distinction of the naked and the nude, the “naked” refers to bodies of subalterns, who have become associated with shame. In contrast, it is a feature of pictures of nudes that they are self-possessed, in common with portraits that are displayed in stately homes. Interestingly, Battersby also describes how the art of Anne Katrine Dolven disturbs the way that Clark characterises unclothed women as “either defenceless and naked or ‘clothed’ into beauty by her flesh” Battersby (2007, 154). The discourse of photographs in the nineteenth century has extended from the issue of gender to include other subaltern’s bodies, including race and class. I would add there are obviously other additions of stigmatised bodies: persons with disabilities, gay, and trans bodies. This historical stigma at the level of the bodies and bodily images has not gone unchallenged, as discussed above in the context of feminism. Aside from refusing to be stigmatised by being victimsurvivors of sexual battery, there are many alternative feminist and subaltern practices. In addition, to the example provided by Battersby above and dis­ cussed in Section 1, Paul B. Preciado (2018) describes the art of trans and dis­ abled artist Lorenza Böttner.19 Preciado draws attention to Böttner’s art, which challenges the way that those with disabilities have been treated as akin to a degrading “freak show.” Böttner’s compelling pictures and dance integrate the position of being a trans person and having disabilities to convey the social constraints that both experience. These social constraints are still stark. For example, the recent Australian Royal Commission on Disability in 2022 heard from one witness with a disability that she was shouted at or otherwise abused in the street about once a month.20 I will now consider today’s problems with image based abuse, at a time when the image of upper-class, white women in public no longer shocks. The ways in which women have been made to associate their bodies with shame is discussed by Purdom (2000). She starts by illustrating how languages have employed the term “shame” to label parts of female bodies and then asks an important question: Rape trials are horrible. So is non-consensual penetration of the vagina by the penis. It is assault. Violation. And yet, it is the victim of rape who feels ashamed. Dirty. Why is it that rape is equated with degradation and shame? What conception of women and the body does such shame assume? (Purdom 2000) 19 I discuss ways of thinking about disability and dance, comparing Kantian aesthetics with an adaptation of Spinoza’s Ethics in relation to Turinsky’s dance, in Chapter 4. On my work on disability and dance, see also Richardson (2018). 20 https://disability.royalcommission.gov.au/.

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The #MeToo movement, along with many other feminist struggles, has chal­ lenged the link between women’s bodies and shame. This has been repeated at different times within the feminist movement, for example in 1981, as illustrated by Angela Davis’ comments: After ages of silence, suffering and misplaced guilt, sexual assault is explo­ sively emerging as one of the dysfunctions of present-day capitalist society. (Davis 1981, 155) Importantly, Davis also refers to the racism that occurred when Black men “whether innocent or not” (ibid.) were blamed for rape, and that crimes against working-class women were rarely prosecuted. She concludes that white men were rarely brought to justice (ibid.). In 2022, women who are now public figures have spoken up publicly about being raped, including Australian of the Year Grace Tame and many more. They represent serious challenges to this belief that a rape victim-survivor must be ashamed; that they are somehow tarnished in a metaphysical way. Purdom discusses the way that women have been associated with the body rather than mind and that bodies have had a bad press, being seen as passive and opposed to rationality. She references Gatens’ (1996) work in this area in Imaginary Bodies. In Imaginary Bodies (and in Collective Imaginings with Genevieve Lloyd (Gatens and Lloyd 1999)) Gatens draws on Spinoza to consider the responsibility of society as a greater body and mind than the individual. This prompts her to consider collective responsibility and social change in broader terms than can be opened up by individualism.

Conclusion I started this chapter with two quotations, both drawn from the late nineteenth-cen­ tury US. The first was from Warren and Brandeis’ influential “The Right to Privacy” and the second from a domestic violence case, State v Oliver (1874). This legal case represents the missing precedents from Warren and Brandeis’ otherwise detailed case review in support of the establishment of a right to privacy in tort. Like the judges in State v Oliver (1874), Warren and Brandeis also wanted to “draw the curtain, shut out the public gaze”21 from the domestic home. Siegel’s (1996) analysis of these cases illustrates the way that privacy is gendered, raced and subject to class distinctions. In particular, the courts were worried about the harm to the reputation and the poten­ tial humiliation of upper-class, white men if their governance of their household were to be made public. While not suggesting that Warren and Brandeis would have been sympathetic to domestic violence, their attitude to privacy is reflected in (and rein­ forces) these judgements that rely upon privacy to maintain husbands’ prerogative (to commit the crime and tort of battery on his wife) by other means. 21 State v Oliver 1874, 70 N.C. 60, 61–62; cited in Siegel 1996, n. 146.

234 Section 3

I contrast the courts’ concern with men’s potential humiliation with the position of women. Warren and Brandeis portray women as being “naturally” always vulnerable to harm if exposed to publicity, particularly if it is their pic­ tures that are publicised. This background informs the problem of image based abuse today, which like Roberson, focuses upon the idea that it is the (always sexualised) female body that is somehow naturally vulnerable to abuse. Addi­ tionally, in her close reading of Warren and Brandeis’ paper, Osucha analyses photographs of the time to describe the way that images of Black persons in the press were often racist caricatures. She contrasts the degrading images of Black persons in that culture, along with Roberton’s response of feeling dispossessed (compared with the self-possession and self-confidence of the aristocracy in portraiture and its development by the middle classes with photography). As Osucha (2009, 75, 78) also notes, racist uses of photography were not limited to the press. The US state also employed photographs to create files on Black persons. In this context, the use of photographs has been extended to the use of CCTV images to surveil Black persons in the US today (Amnesty International 2021). Just as images of women in public may be familiar enough to no longer be viewed as degrading for appearing outside the home, it is possible to challenge the idea that some bodies are naturally vulnerable to the public gaze, not only the bodies women but of all subalterns. As discussed in Chapter 4, Spinoza (1985, 2p40s1)22 argues that when we generalise bodies we simply draw together a blurred image of different bodies. This image of a universal human being is fictional, as is the image of the “norm” when it is accepted that all bodies are equally part of nature. The shaming of particular bodies acts as a technique by which subordination is reaffirmed but is also subject to radical change, see Richardson (2020). This image of social and personal change, along with those ideas of social change discussed in Chapters 1 and 4 of this book, lie in contrast with Warren and Brandeis’ Whig history in which the common law is envisaged as gradually improving. On the contrary, as Siegel demonstrates, judges employed the tech­ nique of “preservation through transformation” (Siegel 1996, 2120) to maintain a status quo that allowed husbands’ violence against their wives to continue in the name of privacy.

Bibliography Amnesty International, dir. 2021. Facial Recognition Tech and Racist Policing in Brooklyn NYC. https://www.youtube.com/watch?v=fRACqv1gFmA. Battersby, Christine. 2007. The Sublime, Terror and Human Difference. London: Routledge. Bernstein, Anita. 2019. The Common Law Inside the Female Body. Cambridge: Cam­ bridge University Press. 22 Ethics, Book 2 proposition 40 scholium 1.

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Bloustein, Edward J. 1964. “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser.” New York University Law Review 39: 962–1007. Clark, Kenneth. 1972. “The Naked and the Nude.” In The Nude: A Study in Ideal Form, 3–29. Princeton NJ: Princeton University Press. Davis, Angela Yvonne. 1981. Women, Race, and Class. New York: Random House. etymonline. 2022. “Seduce.” 2022. https://www.etymonline.com/word/seduce. Floridi, Luciano. 2006. “Four Challenges for a Theory of Informational Privacy.” Ethics and Information Technology 8: 109–119. https://doi.org/10.1007/s10676-006-9121-3. Gatens, Moira. 1996. Imaginary Bodies: Ethics, Power and Corporeality. London: Routledge. Gatens, Moira, and Genevieve Lloyd. 1999. Collective Imaginings: Spinoza, Past and Present. New York: Routledge. Hanaford, Rev.Phebe A. 1899. “The Whipping Post for Wife-Beaters.” Medico-Legal Journal 17 (1): 108–109. Kornstein, Daniel J. 2006. The Roberson Privacy Controversy. Historical Society of the Courts of the State of New York. Argued February 13, 1902. Osucha, Eden. 2009. “The Whiteness of Privacy: Race, Media, Law.” Camera Obscura 24 (70): 66–107. https://doi.org/10.1215/02705346-2008-015. Pateman, Carole. 1989. The Disorder of Women: Democracy, Feminism and Political Theory. Cambridge: Polity Press. Preciado, Paul B. 2018. “Every Life Matters: The Work of Lorenza Böttner.” Presented at Hold Me Now – Feel and Touch in an Unreal World, Stedelijk Museum, Amsterdam, June 28. https://www.youtube.com/watch?v=rwvS-FprT9o. Purdom, Judy. 2000. “Judging Women: Rethinking Shame through Corporeality.” In Feminist Perspectives On Law and Theory, edited by Janice Richardson and Ralph Sandland, 209–228. London: Routledge Cavendish. Richardson, Janice. 2015. Law and the Philosophy of Privacy. New York: Routledge. Richardson, Janice. 2018. “Disability and Dance: The Disabled Sublime or Joyful Encoun­ ter?” In Dance, Disability and Law: InVisible Difference, edited by Sarah Whatley, Charlotte Waelde, and Shawn Harmon, 161–176. Bristol: Intellect. Richardson, Janice. 2020. “Spinoza’s Conception of Personal and Political Change: A Feminist Perspective.” Law and Critique 31 (2): 145–162. https://doi.org/10.1007/ s10978-019-09255-6. Siegel, Reva B. 1996. “‘The Rule of Love’: Wife Beating as Prerogative and Privacy.” Yale Law Journal 105: 2117–2207. http://www.jstor.org/stable/797286. Sontag, Susan. 1973. 2005. “In Plato’s Cave.” In On Photography, 1–20. New York: Rosetta Books. Spinoza, Benedictus de. 1985. The Collected Works of Spinoza. Edited and translated by Edwin M. Curley. Vol. 1. 2 vols. Princeton NJ: Princeton University Press. Stemmler, George L. 1917. “Right of a Wife to Sue Her Husband for a Tort Committed Against Her Person During Coverture.” Washington University Law Review 2 (3): 183–189. Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220.

Index

abortion 45, 52, 93–94, 173 abuse: image based 200, 208–209, 211–212, 213, 226, 228, 230, 232, 234; sexual 47, 51 Adamczak, B. 19 addiction 14 Adorno, T.W. 14, 35, 44, 109 Agamben, G. 40 age 15 Alder, Z. 181 Allen, A.L. 201 Althusser, L. 45, 49, 203 Americans, Native 68–69, 70 Anderson, E. 90 Antigone 32 Arendt, H. 4–7, 9, 13, 24, 26, 30–33, 34, 39–40, 46, 50, 53–54, 58–59, 60–61, 62, 63, 65, 67, 69–70, 88–89 Aristotle 72, 76, 124 arrests 10 artificial intelligence (AI) 10, 13; machine learning 149 artists, women 15, 17, 42–44, 53, 54–55, 70, 75–76 attorney, power of 133 Australia 150, 194; Aboriginal claims of sovereignty 54; damages: housework 190; eSafety Commissioner 230; hacking of medical insurance data and ransom note 173; privacy 47; Royal Commission on Disability 232; wrongful birth: Cattanach v Melchior 91–92, 170–171, 179, 188, 189; Wynn v NSW Insurance Ministerial Corporation 172 autonomy 48, 88, 113; wrongful birth 187, 191–195 Aylmer, J. 29 Bailey, A. 90 Balbus 27

Balibar, E. 199, 203, 207–208, 211 Bartky, S.L. 4 Battersby, C. 4, 8, 10, 13–14, 21, 35, 38–39, 60, 73, 88, 98, 116, 175; female subject position today in West: five characteristics 16–20; forgetting see Battersby and forgetting; naked and nude 231–232; ‘not-fully-human’ and ‘never-quite-a-person’ 15–16; see also Cavarero and Battersby: rethinking the political Battersby and forgetting 14–15, 20, 58, 59, 70; entelechy 72–73, 80; Kantian sublime 73–81; Montag on Spinoza’s counter-aesthetics 70–73; perfection 73, 80; providence 71–72, 80; teleology 71, 74, 80, 171 Bauman, Z. 159 Beard, M. 65 Beck, A.J. 10 Beck, U. 16, 140 Beiner, R. 54 Beresford-Hope v Lady Sandhurst (1883) 29 Berlin, I. 155 Bernstein, A. 224 Bible 206; Job 125, 126 big data 201 biopolitics 36, 151, 161 biopower 36 Blackstone, W. 28, 98, 129, 140, 150 blasphemy laws 206, 211 blood donation 91 Bloustein, E. 229–230 bodily integrity 52, 187, 195, 219–220, 224, 229 Bosse, A. 125 Böttner, L. 20, 232

Index 237 Bredekamp, H. 124–125, 126 Brennan, S. 116 Brennan, T. 139, 201 Brown, K. 124, 125, 126 Brown, W. 19, 25, 140, 210 Burke, E. 72 Burke, T. 19 Butler, J. 8, 12, 16, 35, 38, 48, 49, 152, 209, 210 Cahokia 158 Cane, P. 190–191 capitalism 20, 90, 109, 113, 137, 148, 152, 161, 211 Card, C. 117 care work 90, 96, 113, 114–115, 116, 119, 150, 152, 158, 160–161, 172, 178, 180, 187, 188–191, 192 Carlisle, C. 65 Castel, R. 148, 150 Catholic Church 52; Jesuits 68–69; monks, friars and nuns 30 Cavarero: the political, common law and Stately Bodies 24–25, 98, 132; common law origin of king’s two bodies 26–30; Elizabeth I and Penelope via Arendt: political, public and private 30–33; return of matter: non/differently political female body 33–35; sovereign bodies and workers’ bodies 35–36 Cavarero and Battersby: rethinking the political 38; Battersby’s conception of self 40–45; Cavarero’s conception of self and storytelling 46–50; engage­ ments with Kant’s Sensus Communis 50–55; voices, dissent and creativity 38–40 Cavarero and joy in public action 58–59, 81, 88–89; bodily nature of speech 60–61; images of collective action 66; Native Americans 68–69, 70; nomen­ clature 63; setting the scene 60–63; Spinozist joy through collective action 66–70; subordination 65–66; super­ stition 65, 69; team success and com­ munication 68; term ‘joy’ 63; why does Arendtian action evoke joy 64–66 Cavarero’s method 3, 18, 19, 20, 21, 161; critique of depiction of human body 9–10; ethics of non-violence: inclined relationality and care 11–14;

reappropriation of human bodies as unique, narratable and vulnerable 10–11; theft, reworking and double vision 4–9 Caxton, W. 130 CCTV 45, 234 Champion, J. 126 charisma, domination through 156, 157, 158 Charles II 125, 126 children 92, 127, 151; childcare 113, 114, 115, 116, 119, 150, 152, 178, 180, 187, 188–191; childhood 79; day care centre: fines for lateness 91; Fatal Accidents Act 1976: claim by child for non­ financial dependency 190; power of attorney 133 circulsion 19 Clark, K. 231–232 class 6, 18, 61, 99, 115, 149, 150, 152, 186; privacy 217, 218, 221, 223, 224, 225, 226–231, 232, 233, 234 Clemens, J. 137 cognitive dislocation 17–18, 20 Coleman, J. 162 colonialism 149, 151 commodification of human activities 89–91, 113, 116, 145; wrongful birth 91–92, 189 common law origin of king’s two bodies 26–30; legal disability 27–28; legal persons 29–30; married women: doctrine of coverture 27–28, 98; pragmatism 29; statute: married queen to be treated as ‘feme sole’ 28 communitarianism 116 companies 29–30 compensation for nuclear waste storage 91 computer chips 34 Conaghan, J. 118, 186, 196 concentration camp 40, 161 condoms 19 consensus and dissensus 38 contraceptive pill 16, 19, 151, 152 copyright 65, 211 Cornell, D. 87, 92, 93–95, 96, 117, 118, 120, 210 coverture, doctrine of 27–28, 98–99, 111, 123, 140, 147, 150, 191, 192, 219 Criado-Perez, C. 10 crime/criminal law 175, 201–202, 207, 218, 221, 222, 225, 233; Hampton: treating

238 Index people as if subordinate 19, 95,

110–112, 183–185

CRISPR (clustered regularly inter-spaced short palindromic repeats) 66–67 Curley, E.M. 63 Da Vinci, Leonardo 11–12 dance 78–81, 232 ‘dark ages’ 155 Davis, A. 233 death 4–6, 9–10, 11, 18, 46, 60, 61, 161 Deleuze, G. 203, 206 democracy 97, 140, 159; participative 89, 118, 144, 162 Dennett, D. 32 developing world 89–90, 148, 152 disabilities 15, 78–81, 232; power of attorney 133; wrongful birth 170 distributive justice 102, 189, 190–191 Dolven, A.K. 232 domestic violence 4, 20, 33, 89, 137, 160, 161, 162; privacy and 150, 174–175, 201–202, 217–218, 219, 221, 222–225, 227, 233, 234; State v Oliver 217–218, 224, 225, 233; State v Rhodes 201–202 Donovan, S. 72–73 Doudna, J. 66–67 ecto-gestation 9, 151 education 207; legal 209 Edward VI 26, 27 Egypt: Middle Kingdom 155 Eliot, G. 63, 64, 80 Elizabeth I 24–25, 27, 29, 30, 32, 36 embryos, human 9, 77–78 empathy 43, 131 employment 8, 109, 133, 138, 149, 152, 161, 172; autonomy 192; ‘flunkies’ 160; health and safety 120, 161; job interviews 13; minimum wage 149; Pateman 89, 99, 104, 116, 118, 134, 137, 139, 140, 147–149, 159, 162, 230; sovereign bodies and workers’ bodies 35–36 epic cycles 157 essence: Spinoza 45, 76–77, 199, 200, 213 essentialism 77 ethic(s) of care 12, 114, 115, 116 ethics of non-violence: inclined relationality and care (Cavarero) 11–14 European Court of Human Rights: private and family life (art 8) 45 European Union 173

expression, freedom of/free speech 202, 206, 229 Fable of the Belly 25, 98, 123, 130–131, 135, 139, 140–141 facial recognition: artificial intelligence (AI) 10 Federici, S. 148, 151–152 Ferrara, A. 50–53 Fineman, M.L.A. 192 Firestone, S. 9 fleshiness 17, 18–19 flexible work 99 Floridi, L. 202–203, 231 Foucault, M. 15, 36, 46, 109 Fraser, N. 18, 152, 192 free speech/expression, freedom of 202, 206, 229 free will 74, 175 freedom 44, 64, 88–89, 92, 97, 99, 106, 140; Hobbes: authorship, slavery and 136–139; Pateman, sexual contract and 99–100, 144–162 French Revolution 62 Fricker, M. 137–138, 195, 211 Fried, C. 202, 203 Friedrich, C.D. 75–76 friendship 103, 173; gift of written description of friend’s life story 5–6, 11, 31, 61 fundamentalist religious denominations 151 game theory 105, 106–107, 120, 131 Gatens, M. 45, 47, 51, 81, 96, 173, 175, 203, 204, 207, 209, 233 Gauthier, D.P. 105, 106–107, 120 gender discrimination 13 gene editing 66–67 geniuses (male) 16, 77; and Romantics 14, 38–39 gift of written description of friend’s life story 5–6, 11, 31, 61 gig workers 89, 149, 162 Gilligan, C. 12, 43, 104 Gilman, M. 149 Gilroy, P. 53 Gneezy, U. 91 Goldsmith, M.M. 126 Góngora, L. de 78 Goodrich, P. 124, 128 Gracián, B. 78

Index 239 Graeber, D. 98, 156, 157, 160, 172 Graeber and Wengrow 68–69; central arguments on freedom and domination 155–159; freedom in early societies 99, 144, 145, 153–160, 162 Graycar, R. 172 Greece, ancient 4–9, 26, 60, 61, 62–63, 68, 70, 145; Plato 34, 39, 46; Socrates 9–10 Greenwald, G. 156, 173 group think 7 Hacking, I. 211–212 hacking of medical insurance data 173 Hampton, J. 19, 87, 92–93, 94–96, 97–98, 174, 180, 207; crime treats people as if subordinate 19, 95, 110–112, 183–185; dependency, gratitude and respect 114–115; forgiveness 95, 225; Hobbes’ frontispiece 139–140, 141; lesson from egoist 109–110; reasonableness 118, 120; retribution and personhood 110–114, 157; role of contract 107–109; self-interest and origin of test 104–107; test and arguments against abstraction 118–120; test of fairness in relationships 95, 96, 97, 103–120; test and individu­ alism 115–118; tort law 185 Hanaford, P. 223–224 hate speech/crimes 174, 209, 210, 212, 228 Haudenosaunee nations 69 Hawking, S. 61–62 heart attacks 10 Hegel, G.W.F. 49, 201 Hemsley, B. 61 Henry VIII 30 heterosexual contract 87, 100, 151 Hinton, R.W.K. 98 HIV 19 Hobbes’ frontispiece: authorship, subordination and contract 98–99, 123–130, 140–141; authorship 132–135; authorship, freedom and slavery 136–139; authorship and limits of sovereign authority 135–136; compar­ ison with Hampton’s picture of social contract today 139–140; Fable of the Belly 98, 123, 130–131, 135, 139, 140–141; fantasy of absolute power 128–129; sex of the figures 124, 126–128; temporality 131–132 Hobbes, T. 35, 44, 87, 88, 146, 147, 148, 153, 161–162, 188, 207; dependency 114;

family 98, 201; Hampton: test of fairness in relationships 97, 103, 104, 105–107, 109, 110, 112, 114, 116, 118, 120; Hobbes’ frontispiece: authorship, subordination and contract 98–99, 123–141; self-worth 109 Hochschild, A. 152 Hollar, W. 125, 130 housework 148, 149, 150, 152, 189, 190, 192 Hoyano, L.C.H. 188 human dignity 229, 230 human rights 40, 49, 173, 229; ECHR: private and family life (art 8) 45 humility 69, 73, 95–96 Huzar, T.J. 3, 8, 9, 10–11, 61, 161 hylomorphism 10, 24, 25, 34–35, 46 Ihering, R. von 156 illness 114 image based abuse 200, 208–209, 211–212, 213, 226, 228, 230, 232, 234 images (photographic) and subordination 226–233 in vitro fertilisation (IVF) 9, 65 independent contractors 133, 149 India 92; rape 19 individualism 20, 88, 113, 140, 141, 145, 191, 203, 208, 229–230, 230, 233; Hampton: feminist contractarianism 115–118; patriarchal society 18 international capital 124, 140 internet 230; see also image based abuse intersectionality 10 intersex persons 27 Irigaray, L. 8, 12, 35 Isaacson, W. 66 Israel 91 Jacobson, N. 128–129, 135, 138 James, S. 203, 209 Jesuits 68–69 Jordan, C. 28, 29 joy see Cavarero and joy in public action Kant/Kantian 12, 14, 15, 20, 44, 48, 53, 94, 95; autonomy and heteronomy 191–192, 195; dependency and gratitude 114–115; Hampton: test of fairness in relation­ ships 97, 103, 104, 105–107, 108, 109–112, 114–115, 117, 118–119, 120; objectivity of harm 182–188;

240 Index personhood 15, 88, 105, 106, 108, 109, 111, 112, 113, 116, 117, 183, 207; privacy 198, 199, 200, 207, 210; Rawls: principles of justice 108; sensus communis 50–55; social contract 87–88, 105–106; sublime 15, 39, 40, 41–43, 53–54, 58, 59, 70–81; transcendental self 18, 39, 40–41, 42, 116 Kantorowicz, E.H. 26, 27, 126, 132 Kierkegaard, S. 47 Kittay, E.F. 114 Knox, J. 29 Kornstein, D.J. 226 Kottman, P. 35, 50, 52 Kristiansson, M. 123, 126 labour of women, unpaid 33, 148, 149 Lacan, J. 49, 93, 117 Lester, C.N. 14 Lewis, S. 18, 19, 152 LGBTQI+ persons 94, 232; gay men, Truvada and HIV transmission 19; homophobia 117; intersex persons 27; marriage 150; trans persons see separate entry Livy 25, 130 Lloyd, G. 203, 233 Locke, J. 44, 87, 89, 90, 129, 145, 146, 147, 148, 159, 162, 223 Lugli, F. 155 Lyotard, J.-F. 53–54 Macau 203 McFarlane v Tayside Health Board see wrongful birth machine learning 149 MacIntyre, A.C. 116 MacKinnon, C.A. 201, 210 Macpherson, C.B. 116, 131, 137, 145, 146, 148, 149, 150 Madonna and Child with St Anne (Da Vinci) 11–12 Maidservant from Thrace 25, 35, 36, 48 Malcolm, N. 126 Manow, P. 125, 126 marriage 20, 33, 36, 88, 104, 124, 127, 128, 129, 133, 138–139, 161; alienation of a wife’s affections 220; battery 175, 201–202, 219, 221, 222, 225, 227, 233; coverture, doctrine of 27–28, 98–99, 111, 123, 140, 147, 150, 191, 192, 219; damages: loss of consortium of a wife

(abolished by 1982 Act) 189, 194; Elizabeth I 30; Hampton: fairness in heterosexual cis marital relationships 92–93, 95, 96, 105, 108, 114, 157; Pateman 99, 115–116, 134, 137, 140, 149–153, 159, 162; rape 134–135, 150; seduction of daughters 220–221; surname change on 14; see also domestic violence Marx, K. 115, 134 Mary I 27–28 medical information: hacking of medical insurance data 173; sold by government and then leaked 202 medicine 9, 10; trans persons 13–14 Medina, J. 65 Melamed, Y. 74 Merck, M. 9 #MeToo movement 19, 233 migration 99, 158 Mill, J.S. 150 Mills, C.W. 87, 97, 99, 144, 146, 148–149, 150, 151 minimum wage 149 misogyny 4, 8, 9, 19, 29, 71, 77, 97, 148, 173, 200, 209, 231 mobile phones 203 monks, friars and nuns 30 Montag, W. 15, 58, 59, 70–75, 78, 80, 81, 200, 203, 208 motherhood 7–9, 11–12; see also children; pregnancy Mueck, R. 77 Münkler, H. 125 Murphy, J.G. 110, 114, 157 Nagl-Docekal, H. 127 naked and nude 231–232 narrative psychotherapy 46 natality 4, 6–9, 11, 13, 17, 18, 60; discovery of CRISPR 67 Native Americans 68–69, 70 Neale, J.E. 24 negligent medical treatment in sterilisation see wrongful birth neo-liberalism 89, 137, 162, 173, 231 Nietzsche, F. 14 Nilsson, L. 77–78 non-binary persons 15, 20; see also LGBTQI+ persons North America: Wendat people 68–69, 70 Nozick, R. 137, 162

Index 241 nuclear power 34; waste storage and compensation 91 nude and naked 231–232 Nussbaum, M.C. 201 Ogilby, J. 130 Okin, S.M. 87, 96, 97, 119, 135, 149, 162, 201 ‘old wives’ tales’ 211 OncomouseTM 34 Ophelia 32 Östman, L. 126, 132 Osucha, E. 218, 226–228, 230, 231, 234 Pande, A. 90, 92 Parmenides 61 passing 47, 51, 61 Pateman, C. 44, 87–92, 94, 97, 99–100, 103, 104, 127, 131, 139–140, 173; employer and employee 89, 99, 104, 116, 118, 134, 137, 139, 140, 147–149, 159, 162; freedom and future research 159–161; Graeber and Wengrow: freedom in early societies 99, 144, 145, 153–160, 162; heterosexual contract 100, 151; husbands and wives 99, 115–116, 134, 137, 140, 149–153, 159, 162; privacy 200, 201, 223, 224, 230–231; property in the person 89–90, 92, 99, 115–116, 118, 134, 137, 144, 145–153, 162, 224, 230; sexual contract 99, 100, 147, 151; sovereign and the subject 146–147; three types of society 89; universal basic income 89, 137, 159 patent law 206, 211 Penelope 24; weaving and untying tapestry 10, 30–31, 32, 36 penetration 25; circulsion 19; condoms 19 Pentland, A. 67–68 per quod servitium amisit 220, 221 photographic images and subordination 226–230; self-possession and shame 230–233 physiological dependence 17, 18, 20 Plato 34, 39, 46 Plowden, E. 26, 27 Polanyi, K. 145 political spin 25, 26, 30, 35, 36 pornography 210 post-structuralism 38 postmodernism 43–44, 55 poverty 32, 39, 62, 90, 91, 92, 99, 113, 115, 172, 191

power of attorney 133 power structures 99, 144, 151; common law case-by-case basis 28 precariat 149 Preciado, P.B. 13–14, 15, 16, 19, 20, 62, 87, 100, 151, 152, 232 pregnancy 41, 43, 53, 70, 77–78, 99, 150, 195; Hobbes’ frontispiece 123–124, 129–130, 140; surrogacy 9, 19, 89–90, 92, 151, 152–153; wrongful birth see separate entry pregnant embodiment 17, 18, 20 Pregnant Woman (Mueck) 77 prejudice 137–138 Priaulx, N. 187, 191, 192 pride 69, 73, 95–96 privacy 10, 47; background on 200–203; ‘better fictions’ 209–210; distinguish information from knowledge 203–204; immanent ethics, application of 208–210; immanent ethics of 206–208; Spinoza 172–174, 198–213, 234; Spinoza: adequate and inadequate knowledge 173, 175, 199, 203–206, 208–213; Spinoza: background 203–206; Spinoza and ideology 210–212; and televising of CCTV footage 45; Warren and Brandeis: right to see separate entry property in the person 89–90, 92, 99, 115–116, 118, 134, 137, 144, 145–153, 162, 224, 230 psychotherapy, narrative 46 Purdom, J. 228, 232, 233 Quinn, M. 77 Quintilian 124, 125 Rabinbach, A. 35 race 15, 18, 94, 95, 115, 148–149, 159, 184, 186, 195–196; privacy 217, 218, 221, 223, 224–225, 226–228, 230, 231, 232, 233, 234 racial contracts 87, 97, 99, 151 racial justice 94 racial/racist stereotypes 138, 211, 231 racism 47, 61, 97, 117, 183, 209, 224–225, 226–228; images/photographs 230, 231, 234; rape 233 Radin, M.J. 89 Rancière, J. 40

242 Index rape 19, 25, 47, 111–112, 176, 181, 183, 184, 185, 186–187, 187, 220, 224, 232, 233; in marriage 134–135, 150 Rawls, J. 51, 52, 53, 54, 87, 96, 97, 105, 108, 118, 135, 149, 173, 222 Rawnsley, A. 35 refugees 18, 159 religion 171, 206, 211; Catholic Church 30, 52, 68–69; fundamentalist denomi­ nations 151; monks, friars and nuns 30 reproduction 151, 158; ecto-gestation 9, 151; reproductive justice 90, 93, 152, 173; in vitro fertilisation (IVF) 9, 65; see also pregnancy rhetoric 29, 60–61, 67, 69, 124, 160–161, 192 Richardson, J. 40, 52, 73, 79, 87, 93, 95, 97, 98, 112, 134, 169, 173, 176, 192, 202, 203, 204, 211, 229, 234 Romantics 14, 38–39, 42 Rousseau, J.-J. 87, 131, 146, 153 Ryan, A. 157 Sample, R.J. 106, 115, 119–120 Sandel, M. 89 Sardines (Italian anti-right wing protest group) 58–59, 60, 61, 62, 65, 66 Schaap, A. 54 Scott, J.W. 35 Scott, L. 148, 151 Scully, D. 181 secrets 40, 47, 51, 202, 206 seduction of daughters 220–221 Seidler, V.J. 113, 114–115, 118–119 Selden, J. 128 self-determination 52, 171 self-development 93–94 self-possession and shame 230–233 selfies 230 sexism 117, 120, 172, 211 sexual abuse 47, 51 sexual assault 229, 232, 233; rape see separate entry sexual contract and freedom: Pateman 99–100, 144–162 sexual harassment 19, 31, 94, 120, 210, 212 sexual intercourse 182; penetration and condoms 19 sexuality 49, 151, 208, 212 shame 48, 173, 185, 228, 234; self-possession and 230–233

Shannon, C.E. 204 Shilluk 156 Shirley, S. 63, 64, 80 Siegel, R.B. 174–175, 176, 202, 218, 222–223, 224–225, 233, 234 Skinner, Q. 124, 126, 133, 137, 138 slavery/slaves 5, 7, 26, 62, 89, 97, 137, 138, 159, 231; civil 147, 150 Smith, A. 34 social contract 87–88, 169, 201; contractual tests 92–97; Cornell, D. 87, 92, 93–95, 96, 117, 118, 120; Hampton, J. see separate entry; Hobbes’ frontispiece: authorship, subordination and contract see separate entry; Pateman, C. see separate entry Socrates 9–10 Sontag, S. 230 South Africa: Truth and Reconciliation Commission 95 sovereignty 54 spin, political 25, 26, 30, 35, 36 Spinoza, B. 15, 58–81, 95–96, 169, 171, 174; adequate and inadequate knowl­ edge 63, 64–65, 69, 73, 80, 96, 173, 175, 199, 203–206, 208–213; childhood 79; essence 45, 76–77, 199, 200, 213; free will 74; humility 69, 73, 95–96; imagi­ nation and reason 125; mind and body 63, 65, 72–73, 74–75, 204–205, 233; Montag on Spinoza’s counter-aesthetics 70–73; pride 69, 73, 95–96; privacy 172–174, 198–213, 234; three stages of knowledge and joy 64–65, 204–206; trans-individuals 199, 207–208, 211; understanding and reason 80; universals 60, 73, 79, 80, 98, 174 Srinivasan, A. 90 Standing, G. 149 Stanton, T. 129 stereotypes 12, 13–14, 27, 46, 77, 138, 153, 154–155, 172, 210, 211 stigma 19, 20, 212, 231–232 Stoffel, B. 136 Stormer, N. 77–78 storytelling 39–40, 51, 52; Cavarero’s conception of self and 46–50; gift of written description of friend’s life story 5–6, 11, 31, 61 Strauss, L. 135 sublime art 15, 16, 17, 43, 55, 71–73, 74, 75–76

Index 243 subordination 4, 5, 14, 15, 27, 29, 39, 44, 59, 87, 89, 174, 176, 234; Cornell 96; early societies 99, 144, 145; Hampton 19, 95, 96, 97, 107, 110–111, 113–114, 119; Hobbes’ frontispiece: authorship, subordination and contract see separate entry; humility and pride 95–96; medical information 173; photographic images and 226–233; preservation through transformation 223, 234; property in the person 89–90, 92, 99, 115–116, 118, 134, 137, 144, 145–153, 162, 224, 230; secrecy and victims of 47; sexual contract 99; socialisation 95, 119; undermines groups’ powers of acting 65–66, 174; wrongful birth 178, 182–184, 196 suicide 135–136 Sumerians 156–157 superstition 65, 69 surname change on marriage 14 surrogacy 9, 19, 89–90, 92, 151, 152–153 surveillance 45, 149, 158, 159, 173, 234 Switzerland: compensation for nuclear waste storage 91 Tame, G. 233 Tanning, D. 75–76 Taylorism 35 techno-science 9, 16, 25, 34, 35, 63, 89, 151; Spinozist joy through collective action 66–70 teleology 71, 74, 80, 154, 157, 171 temperance movement 175, 222 terrorism 48 testosterone 14, 16, 61–62 Thomson, J.J. 202 Titmuss, R. 91 tort law 107, 112–113, 191; assault 219, 220; battery 175, 219, 221, 222, 225, 229, 230, 233; damages: loss of con­ sortium of a wife (abolished by 1982 Act) 189, 194; damages: personal injury claims 91, 92, 172, 188, 190; defamation 228; false imprisonment 219, 229; Hampton 185; privacy 174–176, 198, 217–234; reasonable person 118, 120, 202; sexual wrongs 185; wrongful birth see separate entry torture 137–138 trade unions 29, 176

trans persons 13–14, 15, 16, 20, 62, 93, 94, 232; trans men giving birth 9, 15 Tsiaras, A. 77 Turinsky, M. 78–81 Uber drivers 149 Undine 32 United Kingdom 61, 148, 149, 150, 157; battery: Cole v Turner 219; blood donation 91; damages: loss of con­ sortium of a wife (abolished by 1982 Act) 189, 194, 221; Fatal Accidents Act 1976: claim by child for non-financial dependency 190; James I of England 160–161; privacy 45, 202; wrongful birth see separate entry United Nations 173 United States 43, 152, 157; arrests 10; blood donation 91; labour 99, 148–149; privacy 45, 174–176, 202, 217–234; race 10, 18, 97, 99, 148–149, 234; Spanish lan­ guage rights 94; State v Rhodes 201–202; Supreme Court 93–94; surveillance 173, 234; Warren and Brandeis: right to privacy see separate entry universal basic income 89, 137, 159 universal suffrage 127 violence 156, 158; domestic see separate entry; internal and external to a society 154, 159–161 voices 60–61, 65, 68, 88–89, 97; change 61–62; dissent and creativity 38–40; Pateman: voice in relationships 103, 104, 118, 140, 159 vulnerability 19; Cavarero’s reappropria­ tion of human bodies as unique, narratable and vulnerable 10–11 war 48 Warren and Brandeis: right to privacy 174–176, 217–219, 233–234; omission 222–226; photographic images and sub­ ordination 226–233; preservation through transformation 223, 234; self-possession and shame 230–233; Whig history of common law 175, 218, 219–221 welfare benefits/state 116, 139, 149 Wendat people 68–69, 70 wet nurse 18 Williams, B. 117

244 Index Wittig, M. 87, 100, 151

Witting, C. 180–182, 187–188, 192,

193–194, 195

work/life balance 116

worthier draws to itself the less

worthy 27

wrongful birth 112–113, 169–172, 175,

178–180, 195–196; Cattanach v Mel­ chior 91–92, 170–171, 179, 188, 189;

devaluing childcare 188–191; Kant and

objectivity of harm 182–188; ‘loss of autonomy’ head of damage 191–195; Parkinson v St James and Seacroft

University Hospital NHS Trust 187,

190, 195; pregnancy as ‘natural’ event:

occlusion of women’s intentions

180–182; Rees v Darlington Memorial

Hospital NHS Trust 194–195

Yovel, Y. 204, 209