Hard Bargains: The Politics ofHeterosexuality

I'm working on a couple of things at the moment - a book about sex, a woman's guide to law schools, and a book based on my dissertation, which is a revision of Thomas Hobbes's social contract theory. And since I know you're not interested in sex, I thought I'd talk about the social contract -just kidding! As you know, Jane Larson, a legal historian from the University of Wisconsin, and I have written a book, to be published by the Oxford University Press this year, which we call Hard . . . Bargains: Sex and Politics. And since in a very important sense Washington and Lee School of Law enabled me to get started on the book when I was the Lewis Scholar here two years ago, it seems very fitting to present the grand conclusions in the same place.1 You may think it is a little weird to talk about sex and politics in the same sentence (other than perhaps about some female's knowledge of the President's anatomy), so the first subject in a grand theory of the politics of sex is "why bother?" Let's start to answer that question with a definition of politics, or at least political theory. Since no one has elected me queen of the world yet that I've noticed, I'm more doing political theory than politics. Political theory, according to the Encyclopedia of Philosophy, is the study of the real or ideal organization of people into societies.2 Now you notice there's nothing in that definition which limits what can constitute a human society, and it is in fact the case that political theory for centuries addressed itself to relationships of all sorts: ruler/ruled, to be sure, but also master/servant, husband/wife, father (no one was very interested in mothers until recently)/son, deity/worshipper, and so forth.3 It is only in the aftermath of the wars of religion in the sixteenth and seventeenth centuries that people began to worry about the murderous possibilities of the state and to theorize that politics should be limited to only certain aspects of life, like keeping us from killing one another, rather than telling us how to treat our spouses.4 Thus the state/society or public/private divide was born. Now the alert among you may be thinking that nothing in this process of reining in a murderous state necessarily requires us to withdraw political analysis from the relationships we have assigned to the "private" sphere - and there have always been philosophers who understood that. The great analyst of American Democracy, Alexis de Tocqueville, about whom I will have more to say later, was one of them. But for reasons both honorable and dishonorable, after the Catholics and Protestants agreed to disagree in England in the seventeenth century, and in most of the rest of Europe thereafter, the state was limited and the society of the family and of the heterosexual pairing (among many other things) was largely relegated to the private sphere.5 But just because it's been going on for three hundred years doesn't mean it's right to cast the sexual relationship into the unexamined private sphere. Think about it: politics is about the terms in which people "live" together. Controlling violence or defining the legitimate limits of coercion within that living together is the core subject matter of even the most limited, post-sixteenth century political theory. Like the problem of violence, the problem of sex involves human beings seeking physical access to each other. Like the problem of force, sex raises the question of the just terms of such access; when, if ever, is it just to force, extort, pressure, or persuade others to submit to one's will? Like the problem of force, sex raises the question of controlling the exposure to harm from necessary contact, as well as the danger of overreaching and the possibility of life-altering consequences. Seen this way, the historical decision of some great enlightenment philosophers to assign sex out of the public sphere should not compel us to make the same mistake. …