Regulating Intimacy
A New Legal Paradigm
Published on 11. April 2004
Book
Paperback/Softback
304 pages
978-0-691-11789-8 (ISBN)
Description
The regulation of intimate relationships has been a key battleground in the culture wars of the past three decades. In this bold and innovative book, Jean Cohen presents a new approach to regulating intimacy that promises to defuse the tensions that have long sparked conflict among legislators, jurists, activists, and scholars. Disputes have typically arisen over questions that apparently set the demands of personal autonomy, justice, and responsibility against each other. Can law stay out of the bedroom without shielding oppression and abuse? Can we protect the pursuit of personal happiness while requiring people to behave responsibly toward others? Can regulation acknowledge a variety of intimate relationships without privileging any? Must regulating intimacy involve a clash between privacy and equality? Cohen argues that these questions have been impossible to resolve because most legislators, activists, and scholars have drawn on an anachronistic conception of privacy, one founded on the idea that privacy involves secrecy and entails a sphere free from legal regulation.
In response, Cohen draws on Habermas and other European thinkers to present a robust "constructivist" defense of privacy, one based on the idea that norms and rights are legally constructed. Cohen roots her arguments in debates over three particularly contentious issues: reproductive rights, sexual orientation, and sexual harassment. She shows how a new legal framework, "reflexive law," allows us to build on constructivist insights to approach these debates free from the liberal and welfarist paradigms that usually structure our legal thought. This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us. A synthesis of feminist theory, political theory, constitutional jurisprudence, and cutting-edge research in the sociology of law, this powerful work will reshape not only legal and political debates, but how we think about the intimate relationships at the core of our own lives. .
In response, Cohen draws on Habermas and other European thinkers to present a robust "constructivist" defense of privacy, one based on the idea that norms and rights are legally constructed. Cohen roots her arguments in debates over three particularly contentious issues: reproductive rights, sexual orientation, and sexual harassment. She shows how a new legal framework, "reflexive law," allows us to build on constructivist insights to approach these debates free from the liberal and welfarist paradigms that usually structure our legal thought. This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us. A synthesis of feminist theory, political theory, constitutional jurisprudence, and cutting-edge research in the sociology of law, this powerful work will reshape not only legal and political debates, but how we think about the intimate relationships at the core of our own lives. .
Reviews / Votes
"Cohen challenges each reader to defend his or her own normative account of liberty and equality... By proposing a role for reflexive law outside the realm of technocracy, Cohen offers the possibility that our collective efforts to solve our practical problems can aid in articulating the rights that define the kinds of persons we are."--Michael C. Dorf, Columbia Law Review "Although Jean L. Cohen focuses on sexual relations, reproductive rights, and sexual discrimination, her reflexive paradigm of law applies to any sort of legal regulations... [F]or those scholars interested in a theoretically grounded approach to understanding the Court's decision in Lawrence v. Texas, as well as any type of legal regulation ... Cohen's book is worth the effort."--Daniel Mangis, Rhetoric and Public AffairsMore details
Language
English
Place of publication
New Jersey
United States
Target group
Professional and scholarly
College/higher education
Product notice
Paperback (trade)
Dimensions
Height: 234 mm
Width: 156 mm
Thickness: 18 mm
Weight
524 gr
ISBN-13
978-0-691-11789-8 (9780691117898)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Additional editions
E-Book
01/2009
1st Edition
Princeton University Press
€161.95
Available for download
Person
Jean L. Cohenis Professor of Political Science at Columbia University. She is a specialist in contemporary political and legal theory with special interests in democratic theory, critical theory, civil society, sovereignty, gender, and law. She is author of "Class and Civil Society: The Limits of Marxian Critical Theory" and coauthor of "Civil Society and Political Theory".
Content
Acknowledgments ix Introduction 1 Overview 5 CHAPTER ONE: Constitutional Privacy in the Domain of Intimacy: The Battle over Reproductive Rights 22 The Feminist Egalitarian Critique of Privacy Analysis 28 The Communitarian Critique 42 Privacy as Decisional Autonomy: The Isolated, Disembedded Self? 44 Privacy and Identity 49 A Constructivist Justification of the New Privacy Rights 52 The Scope of Privacy: Bringing the Body Back In 57 Excursus: On Property, Privacy, and Legal Paradigms 64 Conclusion 74 CHAPTER TWO: Is There a Duty of Privacy? Law, Sexual Orientation, and the Dilemmas of Difference 77 The Neo-Republican Revival of Privacy Discourse 78 The "New Military Policy": Privacy Protection for Gays and Lesbians? 84 The Right to Privacy and the "Epistemology of the Closet" 86 The Construction of a Stigmatized Identity: Bowers v. Hardwick 94 The Personhood Justification: Normative Paradoxes 97 The Libertarian Solution: Morally Indifferent Sex and the Harm Principle 101 Conclusion 116 CHAPTER THREE: Sexual Harassment Law: Equality vs. Expressive Freedom and Personal Privacy? 125 The Development of Sexual Harassment Law 127 The Hegemonic Feminist Sex-Desire/Subordination Model 129 Liberal Objections 132 Liberal Feminist Alternatives: Redefining the Harm 134 Postmodern Feminist Reframings: Criticizing Legal Normalization 136 Postmodern Feminist Reframings, Part 2: Redescribing the Role of Law 139 Legal Paradigms: An Explanation and a Way Out? 142 Conclusion 149 CHAPTER FOUR: The Debate over the Reflexive Paradigm 151 The Systems-Theoretical Model of Reflexive Law 153 The Action-Theoretical Approach: A Procedural Paradigm 157 A Proposed Synthesis: The Sociological Reflexivity Model 164 Responsive Law 169 Dangers of Reflexive/Procedural/Responsive Law: Arbitrariness and/or Normalization 172 Reconceptualizing the Reflexive Paradigm: A Synthetic, Pluralist Approach 175 CHAPTER FIVE: Status or Contract? Beyond the Dichotomy 180 The Traditional Status Regime Regulating Intimacy 182 Privatization of Family Law 184 The Communitarian Critique of Private Ordering: Toward a New Status Order 187 The Limits of Status 196 Conclusion 197 Notes 205 Cases Cited 261 Bibliography 263 Index 279