Rethinking Obligation

Front matter

eTNINKING bligation

A FEMINIST METHOD FOR POLITICAL THEORY

Nancy J. Hirschmann

Introduction

The Problem of Women in Political Obligation Contemporary Obligation Theory: Renewed or Recycled? The Argument from Psychology

Feminist Obligation and Feminist Theory: A Method for Political Theory

Afterword: Democracy, Difference, and Deconstruction Bibliography

Preface

Iv WAS ONCE SUGGESTED to me that the title and subtitle of this book should be reversed, and there is considerable merit in that idea. This book provides a feminist analysis of liberal voluntarist theories of political obligation, most commonly referred to as consent theory or social contract theory. It reveals that women’s exclusion from the realm of the political in modern political theories and practices is attributable not merely to the fact that opportunities for consent, the acceptance of benefits, and other modern indexes of political obligation are effectively denied to some people, such as women and minorities. Rather, it is the very definition of obligation as an exclusively voluntarist principle that makes liberal obligation theory problematic for women and other historically disempowered groups.

But this argument marks a deeper theme, namely, whether and how feminist theory can provide new insights and methods in political theory to keep the latter viable and timely. Feminism, as one of many antimodern, or “postmodern,” strategies of the late twentieth century, is an extremely powerful tool for revealing the ways in which the picture of reality represented by state-of-nature theorizing is really a picture of beings of a particular gender, race, and class in a highly specific cultural and economic environment. It provides effective ways of seeing how perspective informs and shapes our conceptions of reality embodied in dominant political theories. I thus take political obligation as a focal point for illustrating the methodological shifts which I believe feminism demands of—and which I am urging on— political theory.

This new methodology requires a reciprocal relationship between ix ri Preface the history of thought and analytical philosophy and between contemporary sources and those of previous eras. Using feminist psychoanalysis to identify the gender bias of early social contract theory, I explore whether contemporary concepts that derived from the Enlightenment, such as obligation, contract, and consent, contain this same bias even though we tend to view them as gender neutral. This gender bias, I argue, is built into the foundation of modern liberalism and hence constitutes a structural component of contemporary visions of political obligation. Feminist analysis is necessary to revealing this bias and constructing new theories that can accommodate the experiences of women and other excluded groups.

It seems somewhat strange to me, though in retrospect it is perhaps not all that surprising, that in the process of developing this argument, I found that the themes of my book echoed those of my personal life. For me, the task of writing, while extremely rewarding, can also be so singular, so isolating, that I have often felt quite alone in it these past several years. I found myself periodically wondering if Hobbes is perhaps correct to say that relationship is artificial, as difficult to sustain as to create. Yet now, as I call to mind all the people who have been connected with my intellectual and emotional life during the production of this project, | am reminded of the degree to which relationship is in fact truly central to our lives.

This book goes back several years, and a number of people offered crucial help in its earlier incarnations. My general indebtedness to Richard Flathman, who was involved in this project from its inception, cannot be overstated. I have incorporated so many of his suggestions that it would be impossible to mention them all. In addition to stimulating my interest in political obligation in the first place, he helped me clarify my arguments, and indeed get to the heart of the problem I sought to grapple with. He also aided me in developing a voice that allowed me to bring together the often conflicting worlds of political theory and feminist theory.

Nancy Hartsock has also provided constant support from the project’s beginning. She has read the manuscript in its entirety at one stage or another, always ready to comment on successive drafts. She often brought to bear insights on points I not only did not see but would not likely ever have seen but for her assistance, My intellectual debt to her is evident throughout this work.

Ian Shapiro and Christine Di Stefano each provided careful and insightful readings of the completed manuscript and offered suggestions that greatly improved the clarity and organization of the book. Rogers Smith also commented extensively on an earlier version of the

Preface xi manuscript, leading me to several improvements, Sandra Harding provided insights at various places along the way, not only reading key chapters at crucial points in the book’s development but also providing access to her own ongoing work, Jane Mansbridge and Julie Mostov offered helpful suggestions on democratic theory, as did Laurie Langbauer on postmodernism. The late George A. Kelly also provided early help and guidance, particularly in my work on Rousseau. Less specific but no less important support came in the form of discussions with friends and colleagues, particularly Chuck Beitz, Liz Bussiere, Jean Elshtain, Jim Kurth, Roland Pennock, and Abby Zanger. Students of feminist theory and political theory at Swarthmore College and, more recently, Cornell University also helped me rethink many of the issues considered in these pages.

Early financial support was provided by the Woodrow Wilson Foundation, in the form of a dissertation grant for research in women’s studies. Swarthmore College provided faculty research grants for the summers of 1988, 1989, and 1990, which helped me complete research important to several parts of the book. Cornell University and The Bunting Institute of Radcliffe College provided support during the final stages of preparing the manuscript for publication. Portions of this book appeared earlier in article form in the American Political Science Review: “Freedom, Recognition, and Obligation: A Feminist Approach to Political Theory” in vol. 83 (December 1989), and “Feminism and Liberal Theory” in vol. 85 (March 1991). I appreciate the journal's permission to use this material here.

Finally, I thank my family, who have always offered unfailing support for me and my work even when they weren't sure they understood either. Most of all, I thank my husband, Chris Stoeckert, not only for sticking by me during the worst—as well as putting up with me at my worst—but for having faith in me when I did not have it in myself. We have been traveling together since this project was very young indeed, and he has seen it and me through many transformations, good and bad, with constancy and good-natured tolerance.

Nancy J. HIRSCHMANN Cambridge, Massachusetts

Introduction

POLITICAL OBLIGATION concerns the basis on which states can legitimately exact obedience from citizens, Or more precisely the conditions under which citizens are morally required to obey the authority of the state. This statement immediately raises further questions: What do we mean by legitimacy? Authority? The state?

In modern western democracies these questions are generally answered by reference to voluntarist ideology. That is, an obligation is a limitation on behavior, a requirement for action or nonaction, which the (non)actor has chosen or agreed to, as opposed to duty, which may be a requirement that exists “naturally,” or “positionally,”' but at any rate is not explicitly chosen by the person who has the duty. It is central to our (western) understanding of obligations that they arise from voluntary and free actions. The paradigm for obligations on the liberal model is the promise and contract, and its political counterpart is the social contract.*

Voluntarist obligation theory, loosely dubbed “consent theory,” holds that political obligations exist only by virtue of the fact that citizens of a state consent to the authority of the government. Beginning in the seventeenth century, divine right and patriarchal theories of obedience and legitimacy were rejected in favor of new theories that premised legitimacy on individual choice, to greater and lesser degrees. Working from a new conception of human beings which em-

*See Hume, “Of the Original Contract,” in Hume's Moral and Political Philosophy (1948), and Pateman (1979), for particularly strong statements of the links between the consent theory of obligation, or the social contract, and promising.

phasized the independent will and the capacity to make choices, and rejecting the tradition of bonds imposed from (and by virtue of) birth, consent theorists created a new concept of political legitimacy which depended on the will of the governed, not the governors.

This voluntarist notion of obligation has spurred heated and even violent criticism over the past three centuries. Hume, Burke, Godwin, Hegel, and Bentham all rejected consent theory because it went too far, or not far enough. Hume, for instance, rejected it on both descriptive and prescriptive grounds; not only was it a fantastical description of actual political societies in which obligations existed, he argued, but it was also hopelessly mired in illogic and inconsistencies. Obligation, or allegiance, was loosely based on the natural sympathy humans feel for one another, and thus people should support whatever government happens to be in power in order to preserve peace and security.’ Burke, emphasizing the need for tradition, decried obligation by consent because it took individuals out of their social context—a context defined by hierarchy and inequality, but a context nonetheless.‘ Hegel similarly took consent theory to task and refuted it exhaustively, if not bitterly: the state is the locus of humanity, he said, and therefore we must partake of and support it. The abstract choice provided by consent threatens not only the state but our own humanity as well.* The utilitarians rejected the concept of natural rights in particular, Bentham calling it “nonsense on stilts.”* More recently, critics such as C. B: Macpherson and Carole Pateman’ have seriously criticized the Lockean and Hobbesian views of consent and obligation; Richard Flathman, Hanna Pitkin, Michael Walzer, and John Rawls’ have further argued for rejecting consent theory as a legitimate and cogent ground for political obligation, arguing for different conceptualizations of obligation. And theorists such as A. John Simmons and John Dunn’ have concluded that political obligations do

‘See particularly Hume, “Of the Original Contract,” “Of the First Principles of Government,” and “Of the Origin of Government,” in Hume's Moral and Political Philosophy. See Hirschmann (1989b) for a more detailed account of my reading of Hume's criticisms of consent theory and theory of obligation.

‘Burke, Reflections on the Revolution in France.

‘See in particular Hegel, The Philosophy of Right.

‘Smith (1985), p. 39. See Bentham, A Fragment on Government and An Introduction to the Principles of Morals and Legislation.

"Macpherson (1962), Pateman (1979).

Simmons (1979), Dunn (1980), esp. “Consent in the Political Theory of John Locke,” pp- 29-52, and also (1969), and (1985). Wolff (1970) should also fall into this category, but I agree with Pateman that it does not. Wolff, in basing his solution on Kant and

Hegel, displays an acceptance of the state that puts him at odds with the philosophy of anarchism. Pateman (1979), p. 140.

not exist, perhaps cannot exist, and even that the concept of political obligation is hopelessly confused and should be rejected entirely.

This body of literature would seem to bode ill for yet another analysis of political obligation, and especially for one taking consent as its primary focus. Admittedly there are serious problems with making consent the focus of political obligation. As numerous critics might argue, by now everyone knows that consent theory is implausible. Hume, in effect, said it all. And if he did not, his many successors did. By this time consent theory may be something of a dead horse, or at least a straw man, a point that theorists have been making for decades.

In a sense that is precisely the issue. Why is it that consent theory in particular has been hammered at so long and so hard, with such inconclusive results, if it is so self-evidently implausible? If “self-assumed” political obligation” is in fact hopeless, how do we account for its continued prominence as an object of philosophical scrutiny? And why, after all the rejection, particularly of the principles of consent theory, do theorists go to such lengths to salvage the concept of obligation, and even of consent? For in spite of all the literature on the subject, only Simmons, some philosophical anarchists, and possibly Dunn have held that obligations do not exist. Most other critics seek to find an alternative ground for obligation. These alternatives, interestingly enough, generally seek to embody effectively the same fundamental assumptions of “natural” freedom and equality that ground consent theory, indeed that make consent the only possible basis for obligation.

It is my contention that political theory has not been able to advance on the problem of political obligation because consent theory is designed to mask certain assumptions that are nevertheless central to it. As a result, the problems it presents are self-perpetuating and circular. A number of critics have identified the most central of these problems as abstract individualism. The assumptions I mention begin with that but go well beyond it, for while I agree with a great deal of the literature critical of abstract individualism, none of the criticism goes deep enough to articulate the reasons for the problems obligation theory displays. It merely addresses the symptoms rather than the catises, with the predictable result that the identical problems recur, albeit in altered form, in the “new” theories developed to replace the social contract. These theories leave unasked the question why abstract individualism is so important to these theories. Amid all the

“This phrase is used particularly by Pateman (1979).

debate, therefore, “the problem of political obligation” is not resolved; indeed, the problems are merely repeated, recycled, and rehashed.

What is it about consent theory that has tied political theorists in such knots for all these years? What is it about the theory and its contradictions that both attracts and repels? What is it about the critiques that contributes to, rather than resolves, the problem? And how, if these approaches are so problematic, should we approach the question of political obligation? This book is one attempt to explore these questions from a different perspective than has heretofore been adopted.

A Modernist Concept of Obligation

The early social contract theorists—most popularly Hobbes and Locke, later Rousseau, but also such lesser-known figures as Paine and Godwin—varied considerably in their specific conceptions of human beings and of the political society they should inhabit, and hence developed somewhat different notions of consent. Yet these different conceptions share basic characteristics such as an emphasis on individual action, rejection of patriarchy and divine right as formal models of political society, and the attempt to define and execute a particular concept of freedom. So perhaps a silhouette sketch of consent theory can be developed for purposes of definition.

The generic form of consent theory, generally characterized as coming from Hobbes and Locke, begins with their premises that all “men’" are naturally free and equal. Equality existed at least in the power people had to pursue their desires; and for Locke, people further had an equal right to appropriate property. They were “free” in that they did not depend on the will of others. This nondependence was essential to a full humanity. As I shall argue more fully later on, freedom was defined in terms of what Isaiah Berlin was to call “negative liberty”; that is, we are free to the extent that external barriers— barriers that exist outside the self—do not inhibit us from pursuing our desires.

This concept of freedom was radical not only in that it was a tremendous departure from the hierarchical conceptions of social life of the previous century, but also in that it was extreme. Autonomy and

"In general, I will use she as the generic pronoun. In several places, however, particularly in my discussion of social contract and consent theory in Chapters 1 and 2, | appear to use he generically and man to mean “people.” Part of my argument is that the individual in consent theory is a specifically masculinist construction of a masculine self; so when 1 use he in these instances, | am not simplistically referring to males but rather alluding to a masculinized conception of the individual.

freedom required a concept of man as an isolated entity. The only legitimate connections to others are those initiated by the individual or agreed to by him of his own free choice. This abstract individualism involves the notion that the individual can be abstracted from relationships, from social context, and even from qualities of humanness which others—particularly, as we shall see, women, at least historically—have deemed vital, namely the capacity and need for connectedness and for human relationships.

In light of this extreme individualism, the reason for consent lies in the theorists’ recognition that some relationships are desirable in the daily course of our pursuing individual needs and interests. That connection is a necessary aspect of human life, even if an inconvenient or possibly dangerous one. But since any relationship is highly likely to involve a curtailment of individual freedom by creating an obligation, such relationships can be tolerated only if they are entered into voluntarily. According to consent theory, no one can determine what relationships are good for someone else and bind that person thereby. Everyone must choose her own relationships. But furthermore, any relationship entered into voluntarily has to be of some value to the partners in the relationship; as Hobbes says, “Of the voluntary acts of every man, the object is some Good to himselfe.” Locke echoes this sentiment in observing that “no rational Creature can be supposed to change his condition with an intention to be worse.”” If, in entering a relationship and binding oneself thereby, one gives up some freedom, and if freedom constitutes humanness, then one loses part of one’s humanity through that relationship. This humanity must be regained in another way, through that very same act of alienation. This can be accomplished only if an individual's interests are promoted through this curtailment.

Yet such relationships of mutual agreement and gain are often not successfully achieved; that is, although they may be formed for mutual gain, they turn out to be antagonistic and hostile. For various reasons suggested by a number of theorists—greed, an inability to know the laws of nature or to reason, the introduction of money, the lack of a common judge and known law—the state of nature always degenerates into a state of war, that state which Hobbes so famously characterized as “poore, nasty, brutish and short.”

“Hobbes, Leviathan, p. 192; Locke, Two Treatises of Government, p. 398.

Leviathan, p. 186. Because of the complexity involved in citing the various dates of different editions of the works of Hobbes, Locke, Rousseau, and others, these historical sources will be referred to by author and abbreviated title. The bibliography lists the edition from which I quote. Also, all emphasis in quoted material reflects. original emphasis unless otherwise noted.

The only way to achieve the peace and order necessary for continued acquisition is to submit to an arbitrative authority, the Sovereign. The Sovereign—whether an absolute monarch or a representative parliament—creates an element of predictability by creating rules that make certain kinds of behavior punishable. It enforces the laws of nature, particularly by enforcing agreements between men and establishing rules of property (what belongs to whom, why, and how). Even though average citizens are generally not involved in governing (with the exception of Rousseau, social contract and consent theorists from Hobbes onward have rejected direct or participatory democracy), they are seen as the source of government, as the foundation for legitimacy. This new emphasis on the self-creative capacities of human beings leads to the notion that they are capable of creating all of their social relationships. Indeed, they must create all of their relationships if they are to preserve their human essence, their freedom, Men’s relation to government is merely one of these relationships; hence no government is owed obedience unless citizens consent to its authority. Because of the radical and equal freedom of all men, consent is seen to be the only way to create political obligations: it is a necessary condition. Furthermore, on this view, consent is also a sufficient condition for obligation: if people are to respect individuals’ capacities for rational decision making, then individuals must be taken at their word when they consent.

This admittedly brief rendering of original social contract theory diverges in several ways from contemporary consent theory, but it provides the latter with its foundation. Although consent theory appears to have lost popularity in theoretical circles in the nineteenth century, it resurfaced as a central issue in political theory in the 1960s and 1970s." Furthermore, contemporary theorists took up consent theory in particular as apparently the central—or at least a central—conception of obligation to disarm. This conception of consent was explicitly identified as Lockean. Ironically, perhaps, these theorists often followed Hume’s lead, attacking consent on logical, descriptive, and prescriptive grounds.

Even more ironically, however, contemporary critiques can be seen as stressing “even more emphatically than Locke that consent is the sole basis of legitimacy and obligation.” That is, while they appeared

“See introduction, chap. 1, and chap. 2 of Hirschmann (1987). This submersion continues to the latter half of the twentieth century: “Obligation - . . [is] a concept which not so long ago was on one side of the Atlantic virtually discarded as a linguistic anachronism, and on the other treated simply as a behavioralist phenomenon.” MacFarlane (1974), pp- 1305-6.

‘Smith (1985), p- 45, makes this comment about modern consent theory, not about to criticize and reject consent theory, many contemporary theorists in fact adopted consent as the basis of obligation but transformed the way that consent is expressed, or even the very meaning of consent. For instance, Joseph Tussman, attempting to reconcile the centrality of consent to obligation in the face of the fact that many people do not even think about their consent, suggests that we “assume” that the majority of citizens give their consent and are like “political child-brides” who let others protect and define their best interests.“ Pitkin, through a creative reading of Locke, develops the notion of “hypothetical” consent: what perfectly free, rational beings would consent to determines what the average unfree, unequal person is obligated to. Flathman argues for a “good reasons” approach, holding that critical reasoning will reveal to us that we have (or do not have) good reasons for respecting the authority of a government. Whereas obligation is a “practice” and must operate within the confines of language— facts that automatically limit what can count as a reason—the final repository is individuals’ ability to judge and decide for themselves. He thus gives individuals the same “veto power” over their obligations for which he faults consent theory.” Simmons, while maintaining that no existing consent theory accounts for obligations, nevertheless holds that consent is the only possible ground for obligation because it is the only way to preserve individual choice. Similarly, Pateman, who is highly critical of liberal obligation theory, argues for a fully consistent consent theory, which can be realized only in a Rousseauist participatory democracy."

Even within the context of other concepts, obligation still follows the assumptions of consent theory. Rawls’s “fair play” principle depends on the active acceptance of benefits within a cooperative scheme. Although a context of justice is important, passive acceptance or nonavoidance of benefits does not generate obligations. This principle is juxtaposed to his concept of duty, which is “natural” and not the product of choice. Both duty and obligation involve “schemes” or ends which are just; but obligation, to be such, must be at base voluntary. Within Rawls’s structure, however, if one does not accept the benefits of a just scheme, and hence has no obligation to it, one may still have a natural duty to it anyhow by virtue of its justness; if it is just, then one would have agreed to it in the original modern critiques of consent theory. [t is my own contention that his statement holds equally true when applied to these critiques.

position. This fact calls into question the usefulness of Rawls’s distinction between obligation and duty, for at least in the case of political obligation, my duties require me to do the exact same thing that I supposedly have no obligation to do, namely obey the law.”

This highlights a blind acceptance of voluntarism as a prerequisite for obligation even when it does not make theoretical sense. Even theories that challenge the idea of consent as the basis for obligation tenaciously hold on to the guiding assumptions of consent, for most of these theories bend over backwards to bind citizens to their state, and indeed to reassert the centrality and importance of obedience to the state on a voluntarist basis even as they reject consent theory. As a result, consent theory was not rejected but rather rewritten: it became implied consent, hypothetical consent, the assumed consent of the “political child-bride,” the recognition of good reasons, or the acceptance of benefits. Certainly the differences among these theories are significant; but what is more so is that they all failed to recognize that it was not consent per se that needed to be questioned but the assumptions underlying consent. It is for this reason that none of these theories has satisfactorily resolved the problem of political obligation.

What are those assumptions? As | said earlier, abstract individualism is a basic starting point. What the liberal construction does is reify human will, action, and existence. In asserting that the individual can and does create all of her relationships and all of her obligations, consent theory abstracts people from their social circumstances and ignores the reality that social relationships do in fact influence, shape, and make possible the human capacity for autonomy. Choices exist in social contexts. The fragmentation and alienation of self inherent in the concept of labor and the body as separate from the self, for instance,” ignores the fact that self-creative capacities develop within the context of nonconsensual relations, namely a society and family, which an infant does not choose. The social contract theorists wanted, and still want, to deny this and to deny the complex dynamics of human development and social relations in their eagerness to assert man’s independence from monarchical rule.

Yet at the same time, and on another level, these theorists also recognized that such denial was impossible. This is an idea that is not often recognized because it is not overt in consent theory; yet it is readily apparent. After all, if they truly believed in individualism, as Godwin did, and perhaps as Simmons does, then why has not anarchism become a more popular doctrine, and why did consent theory

"Rawls (1964, 1971).

VSee Macpherson's (1962) interpretation of Locke on this themeneed to be developed at all? Why not simply declare the freedom and equality of all and conclude that governments are themselves illegitimate? The ostensible answer is the desirability of certain relationships to the end of each individual's pursuit of her own individual interests. This desirability is what gives rise to the idea of consent, to a convention that allows discrete beings to form relationships of agreement and contract.

The deeper answer begins with recognizing that this desirability is in fact considered a necessity. I maintain that the social contract theorists implicitly accepted governmental authority as a fact of human existence, even as they explicitly argued that governmental authority threatened the “fact” of human freedom and individualism. Although government ostensibly is created by, depends on, and derives legitimacy from human choice, in fact humans have no choice: government must exist. This tension manifests itself throughout voluntarist theories of obligation as one between individuality and community, between the “fact” that humans are naturally free, and the “fact” that these free individuals need a common authority if they are to preserve that freedom. Rousseau declared that “man is born free, yet everywhere he is in chains.” Consent theorists try not to resolve this paradox but to take it as a given and build their theories on the premise of its irresolvability. In the process, ironically, they end up trying to disguise it, to pretend that it does not really exist.

Of course, a tension between freedom and authority is not necessarily a bad thing; indeed, many see it as the hallmark of democracy. And certainly tensions are a positive strength of political theory. The problem with liberal obligation theory, however, is that the tension is conceived not as a tension per se but as a contradiction. Freedom and authority, individual and community are defined in opposition to each other from the very start. This is where the concept of abstract individualism comes into play: because individuals are seen as so radically separated from one another, the relation between individual and community seems inherently irreconcilable. Abstract individualism requires a conception of freedom as the absence of external restraints, and of authority as one of those restraints. It intimately depends on a concept of the individual that is at odds with community. The problems are thus not the passive product of “human nature” or “divine order” but are the outcome of a particular epistemological framework, a particular way of conceiving, defining, and representing the individual, and indeed the world.

In this portrayal the recognition of the need for authority is masked in favor of the recognition of the “fact” of individual freedom; and the contradiction between freedom and authority is reconciled ostensibly by an ultimate appeal to freedom. Individualism is theoretically more important than authority and order. Hence authority must, at least ostensibly, be based on voluntarism, on the choices of the people who will be subject to the authority. In this way individuals’ limitations on choice via the establishment of government and law is really an expression of choice via consent. But this voluntarism is in reality camouflage for coercion; it is not genuine. The theories overtly operate from the claim that authority should not win out because of the priority of individual freedom. Indeed, that was the whole justification for this genre of theory. But in reality the need for authority takes precedence over freedom. As a result, almost all of the voluntarist theories of obligation accomplish what Rousseau is singled out and excoriated for, namely forcing citizens to be free. Thus Locke offers “tacit consent,” and Hobbes links force and consent. Tussman portrays the majority of citizens as “minors” who need “tutelage.” In potentially less coercive terms, H. L. A. Hart talks of a “blind habit of obedience,” and Flathman also legitimizes habit as a way of enforcing behavior without making people “feel imposed upon.” Rawls tries to get around the problem of people who do not accept benefits by declaring them to have a natural duty to those things to which they supposedly do not have an obligation.”