I. Introduction: classic patriarchy

In Book V of Plato’s Republic, Socrates maintains that women should be allowed to partake in the government. Those who deny it rely on ‘antilogical’ arguments and ‘pursue purely verbal oppositions’ (Rep: 454a) by generalizing random differences without considering the matter with which they are dealing.Footnote ¹ When asking whether women can have political offices, we must ascertain whether sexual difference is meaningful to the subject, because, although in the kallipolis everyone must look after a single occupation, ‘we did not then posit likeness and difference of nature in any and every sense, but were paying heed solely to the kind of diversity and homogeneity that was pertinent to the pursuits themselves’ (Rep: 454c–d). However, not every woman shall rule, but only the best-suited among them, as demanded by the best constitution evoked at the end of Book IV (Rep: 445d). In this context, therefore, the discussion about sexual difference is a distinctively constitutional one, for it concerns the criteria that are pertinent to the community’s political organization: sex is no such criterion for Plato.

Aristotle, on the contrary, implicitly counts sex as a factor in the distribution of honours: in Book III of the Politics he regards freedom as the minimum—though insufficient—title to have access to political offices (Pol: 1283a). But in fact, at a closer look, the minimum requirement is being a male. At the same time, it is striking that Aristotle employs the same argument exposed in Republic V when he criticizes oligarchic constitutions, whose supporters ‘think that if they are unequal in some respects, for instance in wealth, they are entirely unequal’ (Rep: 1280a). As in the case of sex analysed by Socrates, a determinate difference is improperly interpreted by oligarchs as an absolute one, thus leading to an unjust partition of responsibilities and goods. Moreover, the Stagirite would agree with Plato that sex is not, as such, politically relevant because it does not contribute in the least to the purposes of government. In Book III, for instance, he mentions height and skin colour as insignificant traits as far as political rule is concerned, and there seems to be no reason to treat sex otherwise. Why then should the ruling body of the city (politeuma) be only composed of male members?

It would be too simplistic to treat this as just a socio-cultural trait, as though Aristotle merely embraced the patriarchal prejudices of his time. The problem with Plato’s argument, he says in Book II of the Politics, is that it reduces the unity of the city to the unity of the family (Pol: 1261a). It is indeed noteworthy that allowing women to participate in the government obliges Plato to suppress the family in the class of rulers. This amounts precisely to the fact that everyone is called upon to carry out a single task and, accordingly, women could not rule wisely if they also had to work in the household and raise children. Eliminating family life, therefore, is the only option. However, as Aristotle underscores, this entails that the politeuma will be in turn like one big family where children and properties are in common. This, for the Stagirite, means dissolving the differences of species (eidos) that are required for the polis to be self-sufficient and consequently brings to a loss of constitutional organization. A family, in other words, cannot be a politically organized community—it can have no politeia, i.e. no regulation of offices and no legal order—because its relationships are not sufficiently articulated, meaning that there is no actual plurality of interests and ways of life.

This is why Aristotle keeps women confined in the oikos under the rule of their husbands. The point is that the inner differentiation of the city demands preserving the family as a community where particular forms of life find their own place: this implies educating someone, namely women, to attend to family affairs, thus making such an occupation their own nature. Even in Aristotle, then, sexual difference plays a constitutional role, though contrary to the Platonic one, because it is part of the criteria based on which a society organizes itself viz-à-viz a precise interpretation of its diverse functions. We can assuredly call this kind of arrangement ‘patriarchy’, in the literal sense that housefathers—though not all of them—rule society at all levels, including the family. Put differently, patriarchy here is explicitly inherent in the constitutional order.

II. The argument

The above-mentioned problems will later turn out to be useful for the topic examined in this paper, namely patriarchal rule in Hegel’s philosophy of right. The philosophy of right is certainly not the only part of the system that can be considered when it comes to patriarchy—feminist scholars have also made reference to the Phenomenology (Mills Reference Mills1996; Hutchings Reference Hutchings2000) as well as to the Philosophy of Nature (Stone Reference Stone2018)—but it remains the most relevant as long as we address it from a strictly political standpoint. This requires in the first place, quite evidently, engaging with Hegel’s conceptualization of the family.

Before proceeding with my analysis, however, I must put my argument forward: the society Hegel has in mind is patriarchal beyond any doubt. Suffice it to take a look at the ‘Family’ section: women are relegated to the household as their natural place and have no role in public life broadly conceived (from labour to corporations and political tasks). While a man ‘has his actual substantial life in the state, in science and the like, and otherwise in work and struggle with the external world’, woman ‘has her substantial vocation in the family, and her ethical disposition consists in this piety’ (PR: §166). This is so clear-cut that it would not be inappropriate to say that the very concept of ‘human being’, alongside the universality it implies, is masculine for Hegel: in the sphere of right, indeed, such a concept is not a natural determination but results from the modern development of the system of needs—‘this is the first, and in fact the only occasion on which we shall refer to the human being in this sense’ (PR: §190R)—and, since women have no access to it, they remain limited to particularity and cannot really be said to partake in humanity either.

At the same time, however, when we speak of patriarchy in Hegel we must do so with reference to the classic meaning of this notion, which I have briefly outlined in the introduction. This does not mean claiming that Hegel’s ethical life is non-modern or anti-modern, which would be an indefensible statement. It means, more simply, that patriarchy continues to be an aspect of the Verfassung understood as the order of society, including the general organization of its governance. There is indeed another possible—and exclusively modern—way of speaking about patriarchy, for which there is no room in the Hegelian philosophy of right. In fact, Hegel even provides us with key insights to problematize patriarchy in its modern form. Such a form, which I believe is an integral part of the impact of social contract theories on modern societies, relies upon the negation of any properly constitutional framework and emerges only as a contradiction with respect to it. In this sense, as Carol Pateman has lucidly observed, modern patriarchy is not just different from but opposite to its classic version (see Pateman Reference Pateman1988).

Acknowledging this point, of course, does not minimize or excuse the patriarchal nature of Hegel’s political thought, which is not only morally intolerable but even socially unviable for us. It entails rather that grasping the specificity of the Hegelian patriarchy may help us better understand what patriarchy has later come to be in the modern world. That said, as I will stress in the conclusion, the inherent limits of Hegel’s philosophy of right remain patent: his contribution can help us frame and challenge our own experience of patriarchy but offers us no solutions to rethink society beyond it.

III. A critique of the social contract

To clarify my hypothesis, we ought to start from Hegel’s considerations on the impossibility of understanding marriage as a contract. This point speaks indeed directly to the way he conceives of family life. In his 1817–18 Lectures on Natural Right, he states:

Three things should be emphasized to correctly interpret this passage. 1) Hegel does not limit himself to speaking of the contractual formalization of marriage but jointly criticizes the foundation of the state upon a contract (and, quite significantly, he does the same in the Remark to §75 of the Philosophy of Right). The two problems must be considered in parallel, for reasons that will become clearer hereafter. 2) Hegel’s words must be contextualized in his systematic engagement with social contract theories since the 1802 essay on The Scientific Ways of Treating Natural Law. The whole section on ‘Contract’ of the philosophy of right could be read in fact as a rigorous critique of the contradictions produced by these theories, with special reference to Hobbes, Locke and Rousseau (see Kervégan Reference Kervégan2018). Later, I will also briefly refer to the implications of contractualism in the ‘Morality’ section. 3) The kind of ‘coercion’ Hegel speaks about, resulting from the arbitrariness on which this kind of relationship is based, is the same that characterizes the form of domination which I think is implied in modern patriarchy. Studying the social contract is therefore essential to understanding how modern patriarchal rule works and in what sense it is related to arbitrium.

That said, let us briefly consider the logic as well as the conceptual shortcomings of social contract theories as Hegel frames them. Their foundation, he underscores, lies in individual freedom, which is the key to the contractualist concept of legitimate authority. This is plainly visible in Hobbes, who gets rid of the idea that politics entails a specific difference—precisely the basis of Aristotle’s politeia—between rulers and ruled (Duso Reference Duso2005). As he states in Leviathan, ‘I know that Aristotle in the first book of his Politics, for a foundation of his doctrine, maketh men by nature, some more worthy to command, meaning the wiser sort’, but this is ‘not only against reason; but also against experience. For there are very few so foolish, that had not rather govern themselves, than be governed by others’ (Hobbes Reference Hobbes and Gaskin1998: 102). The very notion of governance is thus rejected as irrational and replaced with a different kind of bond, which is best described by the term ‘power’: obligation demands that the difference between obedience and command be purely formal, because, when submitting to political authority, subjects should not in fact be conditioned but by their own will. The political will, in other words, must be the will of the totality of those who obey it, i.e. their common will. As Rousseau would have it, then, the point is ‘“To find a form of association that will defend and protect the person and goods of each associate with the full common force, and by means of which each, uniting with all, nevertheless obey only himself and remain as free as before”. This is the fundamental problem to which the social contract provides the solution’ (Rousseau Reference Rousseau, Rousseau and Gourevitch.1997: 49–50). It is in this sense that freedom must be regarded as the pivot of legitimate rule.

Now, focusing on the contractual moment is crucial to have a clear understanding of this rationale, which is why Hegel is primarily interested in examining the concept of contract as such. Contract, i.e. a category of private law related to ownership, is indeed the only possible way to establish the identity between subjects and rulers as an identity between the individual will and the common will. As a matter of fact, the contractual relationship posits an ‘identical will’ between the partners, because it requires the content of their wills to be the same as far as the transaction is concerned (see PR: §§72–73). In this manner, in contract each of the two parties is not only identical with the other but also with the ‘identical will’ thus produced, which consequently becomes a third will that mediates between them and with which they are obligated to identify themselves: ‘The context of this mediation is one of identity, in that the one volition comes to a decision only in so far as the other volition is present’ (PR: §74). Accordingly, the principle of the social contract is that everyone separately agrees with everyone else to transfer a specific right (in this case, the right to self-rule) to a further individual or group of individuals, namely that or those whom the majority will vote for in any future election. This means that the entity they transfer their right to is in fact the majority itself (see Rustighi Reference Rustighi2022), that is, an indeterminate set of individuals whose will is as much indeterminate: the majority is the true titleholder of the common or identical will of each and every one, because, in Hobbes’s terms, it has been authorized by every single individual to express the content of their own will. The original moment of authorization is therefore a moment of immediate identity—which we may call ‘constituent’, in the sense that it constitutes the power of the whole association—precisely because there is no difference between the will of the single individuals and the will of their totality: in the foundational act, the common will is nothing but the will they all have in common, because it is still identical with the content of the will of each of them.

However, such a pure identity cannot be found beyond the constituent act. The coincidence between the totality and the single individual is inevitably lost as soon as the problem of providing a different content of the common will arises for those who have been authorized to do so. In fact, ‘Contract is in principle a finite agreement and leaves the remaining, wholly universal particularity of individuals still in mutual opposition, including all of their contingency and arbitrariness’ (VNS: §38). The difficulty, therefore, does not lie for Hegel in the contractual bond as such, but in the idea of basing the whole society upon a contract, that is, upon an arbitrary choice on the part of the individuals. Once the common will has been established through authorization, indeed, it is accidental whether in any other moment the single individuals identify themselves with its finite determinations: ‘In any relationship of immediate persons to one another, their wills are not only identical in themselves and, in a contract, posited by them as common, but also particular. Since they are immediate persons, it is purely contingent whether their particular wills are in conformity with the will which has being in itself, and which has its existence solely through the former’ (PR: §81). This is why Hobbes must posit the concept of representation besides that of authorization, meaning that ‘individuals take upon themselves the obligation to let representatives decide upon the content of their political obligation’ (Pateman Reference Pateman1985: 49). If the immediate identity of the authorizing moment does not explain how subjects can be indefinitely identical with rulers, then the content of the social contract must be that someone is authorized to represent them, that is, to determine from now on the content of the will of every single one of them. Representing thus literally means to bring the will of their totality to presence: commonality can no longer consist in the identical content of the single wills—what Rousseau would call ‘the will of all’ (Rousseau Reference Rousseau, Rousseau and Gourevitch.1997: 60)—but in the possibility to generalize a particular content to everyone in virtue of the fact that power legitimately contains their wills—it is now a ‘general will’. In this manner, the social contract is supposed to have established the original identity for good. Furthermore, since all subjects have authorized it to represent them for the future, it does not matter what the determination of the common will is—i.e. power is now legitimate regardless of its contents.

As a consequence, the inevitable difference between the subjects’ particular wills and the universal will ends up being nothing but ‘wrong’: every single subject shall be legitimately forced to comply with a will that has been formalistically declared in advance to be their own, or, to quote Rousseau again, they ‘shall be forced to be free’ (Reference Rousseau, Rousseau and Gourevitch.1997: 53). Freedom, as an absolute foundation, thus turns into absolute coercion, in the sense that the ‘identical will’ postulated by the universal contract is in fact necessarily produced a posteriori by the command with which every other will has an obligation to become identical. But, since the legitimation of this power is intended to be ‘proceeding from the arbitrary will of those who have combined to form a state’ (PR: §75R), its exercise shall be as much arbitrary, given that authorization has rendered it not only indifferent as to the particularity of the many wills, which must be replaced with a purely undifferentiated identity, but also unconditional, because there is nothing outside the absolute whole that can condition it. Accordingly, ‘(α) the contract is the product of the arbitrary will; (β) the identical will which comes into existence through the contract is only a will posited by the contracting parties, hence only a common will, not a will which is universal in and for itself’ (PR: §75).

This implies that the universal will, understood as the generalization of particular contents, is actually in turn just a particular will standing before other particular wills, as it ‘remains something formal, merely hovering over the multiplicity, not penetrating it (Hegel Reference Hegel and Knox1975: 66). Nonetheless, it has also been legitimated to freely posit their immediate identity and is thus always legitimately coercive. But, if coercion is the only possible nature of this relationship, the social contract runs into a contradiction: it should have guaranteed one’s obedience only to oneself, but engenders in fact the individuals’ dependence on an alien force, thus absolutizing the ruler-ruled difference that was supposed to be eliminated. The attempt to formalistically erase the relationship of governance, in other words, contradictorily reproduces it in a sclerotised form: ‘the divinity of the association is an external quality for the associated many, whose relationship with it can only be a relationship of command […] within which only domination and obedience are possible’ (Hegel Reference Hegel and Knox1975: 66).

Domination should not necessarily be interpreted as violence, which is possible in all kinds of obligation. Rather, we ought to focus on its political implications. As a matter of fact, here the political will does not result from any mediation between rulers and ruled, i.e. between the function of government and a society’s differentiated spheres, interests and communities. Such an engagement shall always take place somehow, for sure, but only accidentally, that is, arbitrarily, and what is worse is that, in principle, it is unessential as to decision-making, which remains perfectly legitimate no matter what rulers do. What we observe is, constitutionally speaking, an opposition between unrelated subjects, on one side, and an independent power that brings them together by unconditionally establishing the content of their unity, on the other. Hegel calls this ‘police’, a force regulating individual drives by extrinsically producing the conditions of their being together as a merely formal limitation—which is why the outcome of the social contract is Notstaat, i.e. the state of necessity or ‘external state’ (PR: §183). Once individual freedom becomes the foundation, ‘the rational can of course appear only as a limitation on the freedom in question, and not as an immanent rationality, but only as an external and formal universal’ (PR: §29R).

In such a scenario, there can be no politically qualified institutions besides the power expressing the immediate totality, which is the same as saying that there is no political relationship whatsoever: citizens cannot politically address the government as organized groups because they are already indifferently contained in it as separate individuals and, apart from this, they appear as just a disunited multitude. Obligation is thus depoliticized to such an extent that, as I have previously mentioned, we cannot really speak of a constitutional order any longer. Such a society is not politically constituted but, quite to the contrary, is reduced to an undifferentiated whole whose unity amounts to the abstract identity of what is common or general among unqualified persons: the logic of the social contract is therefore not a logic of unity, but a logic of disunity, because what is posited as universality is in fact what produces the very same individuals who should have created it, and it can only do so by dissolving their ethical bonds and institutions.

This, of course, does not mean that particularity—as particular interests, scopes, corporate endeavours—has been truly removed. Quite to the contrary, as I have already pointed out, the very same universal will established by the constituent contract is actually just a particular will. The problem lies however in the fact that such a particularity can no longer be seen, precisely because it can only present itself on the political stage in the shape of pure universality. Since for social contract theories the political question consists in legitimizing a power capable of unilaterally determining the will of the whole society without encountering any sort of politically relevant (i.e. constitutionally regulated) obstacle, particularity can have no recognized role in political processes. At the same time, however, its untamed re-emergence ends up conditioning these processes from top to bottom. Here, I suggest, lies the true speculative significance of the arbitrariness that Hegel spots at the heart of the social contract.

Let us therefore consider how Hegel defines arbitrium. This concept designates the contradiction implied in an abstract understanding of the will as ‘infinity’, which ‘stands above its content, i.e. its various drives’, but ‘[a]t the same time, since it is only formally infinite, it is tied to this content as to the determinations of its nature and of its external actuality’ (PR: §14). This is exactly the political fallout of the social contract: the formally infinite will of the whole (be it representative or supposedly immanent in a sovereign people—or both), regarded as the totality’s absolute power to determine itself independently from any alien reference, ends up depending on the absoluteness of particular determinations that are merely found in social experience. As a result: ‘The freedom of the will […] is arbitrariness in which the following two factors are contained: free reflection, which abstracts from everything, and dependence on an inwardly or externally given content and material’, meaning that ‘arbitrariness is contingency in the shape of will’ (PR: §15). The real substance of a political form based on the social contract, which we could summarize in the principle of authorized power, lies therefore in the absolutization of what should have been neutralized by the generality of the common will, namely particularity and partiality. This means, quite simply, that the contents that fill the otherwise empty place of legitimate rule—what Hobbes called ‘the seat of power’ (Hobbes Reference Hobbes and Gaskin1998: 3)—will be ultimately provided by particular relations, interests and views that are already dominant in a specific social organization. To put it differently, the empirical organization of society, which the contractualist paradigm has rendered politically invisible by reducing it to the formal indifference of a common will, has not disappeared but, on the contrary, has been definitively enthroned as the real force that controls the social order. Since such an order is no longer constitutionally expressed, however, it now appears as an unqualified yet politically irresistible dominion, given that it benefits from the same formal unconditionality that characterizes the universal will.

I contend that a new, peculiar form of patriarchy emerges in modernity by virtue of this very same logic. Once the social contract has become the rationale of democratic societies, indeed, their patriarchal dimension can no longer be understood as Aristotle understood it, namely, as a constitutional trait. This kind of patriarchy rather involves a masculine social order that was already there since the beginning, for sure, but has now become, for the first time, a formalistic relationship of domination over society’s overall arrangement: its power depends on the fact that, from a constitutional standpoint, it does not exist (Rustighi Reference Rustighi2021).

IV. The marriage contract

We can now return to the question of marriage in Hegel. As we saw earlier, he seems to suggest that the reduction of marriage to a civil contract is as much problematic as the idea of a social contract, and for the same reasons. Since he does not provide any thorough explanation thereof, however, it is useful to dig deeper into the marriage contract. This will enable us to better frame the genesis of the modern patriarchal relationship.

In principle, the deadlock we encounter is the same we have already examined: positing the identity between the two contracting parties—groom and bride—ought to establish a will that is common to both and with which they are identical; however, we have seen how such an identity is bound to be reversed into the opposition between the common will and the particular wills of the associates, such that the former gets to be particularized before the latter. The will of the whole family, then, ends up existing as something alien to the spouses. But what does this mean, exactly? To get a better sense of this process, let us go back to the conceptual root of the contractualist perspective. As we saw earlier, the basic idea is that, since the partners are reciprocally indifferent, they cannot submit to any other will than the one they have agreed to posit, which is therefore assumed to be general, not particular. This makes it impossible to assume that either one of them is better than the other, that is, more capable of achieving the common good: virtue, understood as excellence in knowledge and wisdom, is no longer a factor, as Hobbes makes clear, and cannot justify any relation between a superior and an inferior. Now, for social contract theorists, marriage should meet the same requirement, because the family, like any other community, is a free association of equal individuals. Even sexual difference is consequently removed and should play no role in the contract, whose authors ought to be indiscernible under all respects: they are not a man and a woman, but two interchangeable legal persons.

The clearest example can be found in Kant, whom Hegel mentions whenever he criticizes the marriage contract. Kant’s effort, indeed, is precisely to treat marriage as the mutual alienation of the spouses’ persons based on the rationale of property rights:

Interestingly, Kant describes the marriage contract in the exact same terms Rousseau had used to justify the social contract. In both cases, the purpose is to avoid subjecting one partner to the other, thus leaving them free even though they obey a particular empirical will: ‘The two persons […] constitute a unity of will’ (Kant Reference Kant, Heath and Schneewind1997: 159). Such a view, once again, entails rendering sexual difference null as to the relationship we are considering.

Interestingly, then, while the misogyny of social contract theorists is patent (Okin Reference Okin1979; Hirschmann Reference Hirschmann2008)—and all the more so in Kant (Kofman Reference Kofman1982)—it is at the same time irrelevant as to the contractual logic. Hobbes, who never questions the subordination of women in the civil state (see Slomp Reference Slomp2000; Hirschmann Reference Hirschmann and Hirschmann2012), insists that there is no significant difference between the sexes from the standpoint of power, to such an extent that the sovereign can be a woman: not because women are deemed as capable of ruling as men, but because capability is not an issue, only formal legitimation is. The patriarchal dimension of contractualism, therefore, cannot be spotted at the socio-cultural level of sexist dogmas but must be sought elsewhere. More precisely, we must show that patriarchy, understood as the supremacy of men over women, necessarily emerges in marriage as something unexpected and contradictory with respect to the contract that is supposed to determine their union: in the first place, we have to examine how sexual difference resurfaces, in a problematic and indeed uncontrolled manner, beyond its negation.

To understand this point, let us clarify how the contradiction undermining the contract impacts on the family. We know indeed that the identity between the common will and the particular wills is accidental and actually needs to be established representatively, that is, through a further will that provides a posteriori the contents with which each partner is obliged to identify themselves: representation, I suggest, is precisely what the husband performs in such a patriarchal framework. It could be objected that there is no truly representative function in the family and, consequently, that the husband cannot represent it in the same way as a democratic Parliament represents the people. But such a function does not require to be formally instituted in order to be in place. Rousseau, for instance, refuses to represent the general will, but its representation tacitly resurfaces in the majority of the assembly, which everyone has authorized beforehand to express the common will. Representing, then, does not necessarily mean appointing deputies, it has to do primarily with the fact that the common will is bound to be produced as something other than the wills contained in the contractual moment: it is this difference, manifesting itself despite and against pure identity, that gets to be arbitrarily gendered in the marriage contract.

As soon as the non-identity between the single partners and the will of the whole family emerges, indeed, the latter must be determined by one of them: in principle, given their absolute indifference, nothing prevents the woman from doing it, but, since the ‘identical will’ they have posited is structurally void and has no objective relationship whatsoever with the substance of their union, it will ultimately subsume the hierarchies that are operative in the given (patriarchal) social order in which males are already in charge. The normative meaning attributed to sexual difference, in other words, is not a presupposition but results from the a posteriori gendering of the difference that haunts the logic of the contract as its inherent contradiction, thus presenting itself as the unproblematized subsumption of an empirical relationship of force. We may therefore say that, properly speaking, patriarchy does not come from ideology but results in ideology, if by this notion we mean, as does Marx, an effect of the social discourse that cannot however be justified through it: put differently, sexism is not something hidden behind the narrative of pure equality, as though it were the unspoken reality underlying the social contract, but is rather the contradictory outcome of its conceptual configuration.

Why then can we speak of patriarchy as ideological only within these coordinates? Because the element of arbitrium that we have previously analysed makes the foreclosed problem of virtue resurface in the random and even anarchic form of male supremacy. The contract is indeed unable to answer the question ‘who is better suited to rule?’, which in fact it wanted to abolish. But, when the dilemma arises concerning the concrete exercise of the common will as something that transcends the wills of the partners, this question returns: any possible answer, however, is now entirely arbitrary, because the assumption that men are better than women can only be extrinsically juxtaposed to a relationship that has already been grounded upon their formal indifference. It might be socially true that a husband is better educated than his wife, but his superiority has become at the same time inessential, because there is no actual need for males to be better any longer: masculine rule is now legitimate regardless of its quality, which cannot be ethically questioned any more, thus basing patriarchal power on an abstract standard of male virtue deriving from the ideological generalization of something that is merely found in the social Realität. Conversely, then, we no longer have one sex ruling over the other but only the characterization of a specific formal function—i.e. the determination of the legitimate will—as masculine. This means that male rule exceeds the logic presiding to the partners’ unity and cannot be explained through it, for it is posited only as the arbitrary naturalization of an empirical situation. Turning male virtue into a formalistic fact, in other words, entails not only transforming patriarchy into an ideological relationship but also making sexual difference a naturalistic norm. Virtue thus resurges beyond its contradictory contractualist elimination only in the abstract form of the moral conscience Hegel analyses in the section on ‘Morality’: the ‘empty formalism’ of moral virtue claims to refer to an absolute standard of objectivity, but ‘there is no criterion within that principle for deciding whether or not this content is a duty. On the contrary, it is possible to justify any wrong or immoral mode of action by this means’ (PR: §135R).

If we take a look at how social contract theorists deal with this dilemma, the point will be much clearer. Kant provides a good example in the Metaphysics of Morals:

This passage shows how masculine rule in marriage is at odds with the contractual unity that is supposed to be its foundation. But the difficulty is in fact even deeper, as we saw earlier: the very moment of rule, which implies the re-emergence of difference from within immediate identity, is as such a contradiction the contract does not account for. Its gendering thus occurs only as a secondary process, for the husband’s ‘natural superiority’ is just a void statement resulting from the arbitrary elevation of a contingent social given to the true essence of a relationship in which there is in fact no longer room for any question concerning its quality. As a matter of fact, the husband’s ethical quality is tied to the ‘common interest’ of the spouses, but such an interest has been rendered formally indifferent.

Locke’s Second Treatise of Government is as much illuminating. In §82, after underscoring that ‘Conjugal society is made by a voluntary compact between man and woman’ (Locke Reference Locke, Locke and Shapiro2003: §78), he states:

These words efficaciously elucidate the impasse spotted by Hegel: the ‘identical will’ is destined to be at variance with the wills of the partners as soon as determining its particular contents becomes necessary. However, since their absolute identity has been posited from the beginning, such an act of determination is now independent from them. The ruler-ruled relationship thus unexpectedly resurfaces within a logical ground that makes no room for it and turns into a unilateral exercise of power. At this point, indeed, assuming that the man is ‘abler’ than the woman, means nothing but hypostatizing a social custom whose rationality is no longer justifiable nor in fact requested: this man could be the worst possible head of the house—the opposite of the gentleman of Locke’s educational project—without it being possible to even question his quality. Patriarchy, in this context, is at once invisible and absolute, precisely because sexual difference paradoxically returns as an uncontrolled normative datum despite its original removal (see MacKinnon Reference MacKinnon1987).

To conclude these remarks, it is essential to briefly engage with Carole Pateman’s pioneering analysis of the ‘sexual contract’ in social contract theories. Pateman has clearly seen how these theories oblige us to speak of modern patriarchy as opposed to what she rightfully calls ‘classic patriarchy’, whose latest example can be found in Robert Filmer’s patriarchalism. As a matter of fact, the social contract presents itself as the destruction of the old social order, including its patriarchal features (it is not by chance that Locke’s Two Treatises were explicitly written against Filmer). But, far from wiping it out, it actually reproduces patriarchy in a treacherous form: ‘The origin of political right must either be repressed or reinterpreted if the creation of civil society is to be represented as a victory over patriarchy, and the sexual contract is to remain hidden’ (Pateman Reference Pateman1988: 108). It is clear then that a ‘sexual contract’, understood as a pact made only by men to subjugate women, never really took place (and neither did the social contract, which supposedly includes all individuals as equal), but serves the theoretical purpose of exposing the tacit foundations of the modern narrative of civil obligation.

This analysis remains inestimable, but I believe it can be further refined with the help of Hegel, although Pateman ascribes him to the paradigm of modern patriarchy. More precisely, I contend, speaking of a ‘sexual contract’ is not only unnecessary to explain the patriarchal implications of the social contract but also risks making them not entirely intelligible. As a matter of fact, recurring to this notion implies that patriarchal domination should not be sought for within the social contract itself, because it postulates that patriarchy, in so far as it contradicts the contractual logic of equality by surreptitiously reintroducing sexual subordination, must be coming from the outside. What Hegel allows us to see, instead, is that such a contradiction is immanent in the very same concept of a social contract, which ends up arbitrarily fixing given relationships of dominion against its own premises. While the outcome is the same as that illustrated by Pateman, then, the Hegelian critique is more radical in spotting its conceptual genesis. Moreover, Hegel helps us to realize how the extrinsic opposition between freedom and subjection underlined by Pateman is fallacious: it is misleading to say that ‘The social contract is a story of freedom; the sexual contract is a story of subjection’ (Reference Pateman1988: 2), because, as we saw, subjection is in fact the product of the very same freedom that constitutes the basis of the social contract. This means that a unilateral form of dominion results from the contractualist interpretation of society at all levels: patriarchy is a quite specific manifestation of it.

V. The Hegelian family

We can finally go back to Hegel’s family. As I have previously observed, it would be naïve to deny its patriarchal nature. At this point of the analysis, however, it is possible to show that the Hegelian form of patriarchy is irreducible to the male supremacy that I have presented as an ideological consequence of the contractualist model.

Firstly, we must insist that neither the state nor the family can be considered to result from a contract between private persons for Hegel.Footnote ² This point alone would suffice to acknowledge that in Hegel’s ethical life there can be no abstract command-obedience relationship such as that which we have observed so far. Regarding the family, in particular, he makes clear that

Precisely because the family is one legal person, it cannot be the arbitrary union of two persons based on the alienation of particular rights (e.g. the use of genitalia, in Kant’s terms). Rather, the independent personality of the single individuals is an effect of the dissolution of the family, not its basis (PR: §§177–80): it is only in such a dissolution, i.e. in ‘civil society’, that contracts can take place.

This further clarifies why no ethical relationship can be contractual in nature. As a matter of fact, ‘the object of the contract is an individual external thing, for only things of this kind are subject to the purely arbitrary will of the contracting parties to alienate them’ (PR: §75), but, as Kant himself acknowledges, ‘to acquire a limb or member of a human being is to acquire the whole person’ (VNS: §79R). To put it differently, in contract ‘what I surrender is only […] the subsumption of a particular thing under my will. But what enters into the marriage relationship is the whole personality’ (VNS: §79R). This means that, if we turned marriage into a contract, the entire life of the partners would be at the mercy of formal coercion and their unity—i.e. the standpoint of universality—would be extrinsic, not substantial. Accordingly, ‘It is a barbaric view on the part of Kant to want them to surrender their sexual organs for reciprocal use, with the rest of the body included in the bargain;—Soldiers could also force the spouses together in this fashion’ (Hegel Reference Hegel and Rauch1983: 134). Once again, then, we can see why the coercive side of the contract ultimately manifests itself as arbitrariness or, which is the same, in ideology: it becomes a dominion that remains out of the picture, for it cannot be accounted for by the concepts in which the relationship is rooted.

A few decades after Hegel’s death, John Stuart Mill supported women’s liberation from the old patriarchal chains precisely by advocating the transformation of marriage into an actual contract between free and equal individuals. The following passage from The Subjection of Women, that somehow echoes Locke’s and Kant’s concerns about where the ultimate decision should be placed in marriage, is extremely telling:

Mill’s parallel between marriage and the labour contract sounds disconcerting after Marx’s critique of political economy. Though Hegel could not yet fully grasp the capitalistic rationale, indeed, he saw how the contractual interpretation of social bonds was destined to both enforce and conceal despotic rule, which is exactly what Marx underscores when he points out that the representation of labourers as free sellers of commodities—the standpoint of circulation—is in fact grounded upon social coercion—the standpoint of production.Footnote ³ Likewise, I contend, patriarchy returns from within Mill’s anti-patriarchal (contractualist) theory of marriage through the very same process that characterizes the rise of Capital, namely, by subjugating women to a masculine social hegemony that is no longer expressed in the institutions that organize social life.

This is why Hegel, quite significantly, equates the family to the corporation viz-à-viz the disorganizing and disuniting forces of contractual relations: ‘The family is the first ethical root of the state; the corporation is the second’ (PR: §255), and ‘The sanctity of marriage and the honour attaching to the corporation are the two moments round which the disorganization of civil society revolves’ (PR: §255R). In the perspective proposed by Mill, indeed, women must be freed from the constraints of the family in the same way as political economy wants to free labourers from the constraints of corporations, but in both cases, what this rationality in fact does is break concrete ethical bonds and produce isolated individuals who can only experience obligation as unilateral subjection to someone else. Going beyond the letter of Hegel’s philosophy of right, we might say that what he calls the ‘rabble’—namely those who have no corporation, including wage labourers—epitomizes this kind of relationship (see Ruda Reference Ruda2011): these individuals can only relate to authority in the purely administrative terms of an ‘external state’.

That said, however, family and corporation are very different institutions. I noted earlier how for Aristotle the family is too uniform to be constitutionally organized in the same manner as a city’s plurality can be. Hegel, I suggest, shares this view: whereas the unity of a corporation results from the ‘internally reflected particularity of need and satisfaction’ (PR: §255) of civil society and consequently contains the moment of mediation, the family is ‘the immediate substantiality of spirit’ (PR: §158) and exists as an immediate person. This means that the problem of decision-making in the family cannot be addressed politically, that is, through a specific regulation of offices (which in Aristotle’s polis can also imply rule by turns), but relies only on ethical disposition (Novakovic Reference Novakovic2017): the Hegelian patriarchy consists in the fact that the husband is considered to have been socially raised in conformity with a Bildung that involves taking care of the family by providing for the welfare of its members. Only disposition can thus account for the differentiation of roles in a community of this kind, based on the transformation of an empirical difference such as sex into a spiritual determination—a habit (PR: §165). Therefore, whereas in the contractual interpretation of the family sexual difference is originally erased but ideologically returns as the patriarchal gendering of the contradictory opposition between the common will and the particular wills of the partners, in the Hegelian family it explicitly reflects a specific social organization.

Quite significantly, this entails thematizing something that cannot be asked for in contractualism, namely the responsibility of those who are in charge. As a matter of fact, as I have stressed, virtue randomly resurfaces from within the contract as mere arbitrium: wisdom and capability have become as much meaningless for a husband as for the Hobbesian sovereign, but are at the same time hypostatized thanks to the absoluteness of their function. Such a function, in other words, is irresponsible and unaccountable, because there is nobody to respond to once authority is legitimated as the immediate manifestation of a universal will. Hegel’s husband, on the contrary, cannot avoid the contingency of responsible decision, precisely because virtue and disposition remain key to his role: ‘In the field of right the disposition is superfluous; it makes no difference what my disposition is when I act, whereas in marriage the disposition itself is an absolute moment’ (VNS: §79R). This is so true that male rule in the family is liable to engendering a conflict that would be impossible in a marriage contract, namely the discrepancy between the immediate unity of family life and the fact that one single member is its head (Hutchings Reference Hutchings and James2017; Novakovic Reference Novakovic, Moyar, Padgett Walsh and Rand2022).

This conflict especially arises in the administration of family property: ‘no member of the family has particular property, although each has a right to what is held in common. This right and the control of the resources by the head of the family may, however, come into collision, because the ethical disposition of the family is still immediate and exposed to particularization and contingency’ (PR: §171). Put differently, the husband is entitled to use family property as he sees fit, but, while pursuing the common interest of the family, he does not formally stand for it as a whole, i.e. he does not exercise any sort of ‘general will’, and must rely on his own personal judgment: ‘the conflict lies in the fact that he has the ethical duty to preserve and increase the family property, but also has the right of control over it, whereas all other members of the family should not have any rights over against him, who is its head’ (VNS: §83R). Accordingly, the head of the house can act in an unwise and unfair manner towards his family and there is nothing that can formally eliminate such a responsibility.

It should be remarked that the collision Hegel speaks about here is the same as that he spots in the problematic persistence of virtue in ethical life. In modern ethical institutions, indeed, there is not much room for virtue if we mean by that the individual’s exceptional disposition towards universal ends: ‘virtue represents nothing more than the simple adequacy of the individual to the duties of the circumstances to which he belongs, it is rectitude’ (PR: §150), whereas ‘talk of virtue in general can easily verge on empty declamation’ (PR: §150R), i.e. on the abstractions of morality. As a result:

The more a society is ethically organized through its institutions, then, the less individual virtue is required:

In ancient societies, on the other hand, the lack of a complex constitutional articulation required exceptional men to provide for the good of the community, thus leaving more room for contingency than modern ethical life allows. The conflict between Antigone and Creon analysed in the Phenomenology of Spirit is a good example of such a lack of organization. It does not matter here whether Hegel is right or wrong about antiquity; what is relevant is that, unlike the corporation and the state, the immediate unity of an ethical community such as the family prevents any possible constitutional ordering and makes individual disposition essential as to its preservation. It is not surprising, then, that in modern societies the dangers of family administration should be mitigated precisely by the corporation and the state, which can counterweigh a housefather’s choices.

VI. Conclusion

The Hegelian housefather is not only the head of his family but also has the duty of mediating between the particular interests of family life and the universal interests of the state by participating in corporate associations. It is in this sense, and in this sense only, that Hegel qualifies him as a representative of the family: ‘The family as a legal person in relation to others must be represented by the husband as its head’ (PR: §171). This function cannot be mistaken for what I have qualified as the representative role of the husband in the marriage contract. In that case, indeed, representation has to do with a process that requires an instance other than the contracting wills to posit their own identity as external, which means that what is represented can only be the whole family—universality—before its single members—particularity—including the housefather himself. In Hegel, on the contrary, the housefather represents something particular before other particular interests (other families) and ultimately, through corporations, before the universal standpoint of the state (the government). He does not bring to presence an undifferentiated will by freely determining its contents but is entrusted with determinate matters to be defended in both the civil and the political arena. In this manner, women are also supposed to find their representation within corporate bodies even though they do not partake in public life: their interests as members of a family are delegated to their fathers and husbands, who, as we have observed, can even fail to do their job.

What emerges from this analysis, therefore, is that the patriarchal nature of Hegel’s family depends on a broader male-centred social order and overtly mirrors a specific, constitutionally regulated division of institutions. Understanding Hegel’s perspective is thus particularly relevant in so far as our democratic concepts, which come directly from the logic of social contract theories, no longer make it possible to speak of patriarchy in these terms but oblige us to take a more complex detour through their theoretical impasses. However, it is as much important to point out that the Hegelian philosophy of right can give us no direct solution to the dilemmas of contemporary societies.

In the first place, a social organization in which women have no chance to find their own realization as individuals—through education, labour, public engagement, etc.—is pure nonsense today and it was somehow already in the 1820s. In fact, it is quite surprising that Hegel, who had a clear understanding of the deep social and economic transformations occurring in modern Europe, did not see how unreasonable it was to prevent women from participating in all social and political spheres. This means also that the spirit of an argument such as Mill’s, as untenable as its letter may be, cannot be underestimated and remains a milestone in the development of the modern ethical world: for at least the last century, indeed, Western family life has been undergoing a metamorphosis that impacts directly not only on the single individuals but also on patriarchal patterns, and this calls for a further work of conceptualization that Hegel does not help us to do.

The Hegelian philosophy of right, then, cannot be taken as a reference for this or that model of society and should have in general no paradigmatic use. It can, however, give us precious insights into the conceptual structure of patriarchal domination as it has arisen in modernity. It is quite noteworthy that a radical feminist such as Carla Lonzi, who literally spits on Hegel because of the role he played in shaping the modern idea of female subordination, acknowledges that modern feminism has to struggle against a quite peculiar form of patriarchy, which is not based upon women’s exclusion but upon their inclusion in a civil society allegedly made of indifferent, neutral persons:

It goes without saying that feminism cannot accommodate in the least to a Hegelian conception of gender roles in society. Yet Hegel could provide feminist theorists with unexpected tools to diagnose the specificity of patriarchal structures as well as their genealogy. And even though the shift from the diagnostic to the practical level cannot be resolved in Hegelian terms, I believe that what Hegel’s philosophy of right can still teach us is that feminism, in so far as it tackles patriarchy as a logic of social domination, urges us to think of new concrete forms of political organization beyond the neutralizing effects of the long-standing rationality of the social contract.