Regulating Intimacy
A New Legal Paradigm
1st Edition
Published on 10. January 2009
304 pages
978-1-4008-2503-5 (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.
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.
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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
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
