Regulating Intimacy

by Cohen, Jean L.

• ISBN13: 9780691057408
• ISBN10: 0691057400
• Format: Hardcover
• Copyright: 2002-04-01
• Publisher: Princeton Univ Pr

Summary

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. .

Author Biography

Jean L. Cohen is Professor of Political Science at Columbia University.

Table of Contents

Acknowledgments	ix
Introduction	1	(4)
Overview	5	(17)
Constitutional Privacy in the Domain of Intimacy: The Battle over Reproductive Rights	22	(55)
The Feminist Egalitarian Critique of Privacy Analysis	28	(14)
The Communitarian Critique	42	(2)
Privacy as Decisional Autonomy: The Isolated, Disembedded Self?	44	(5)
Privacy and Identity	49	(3)
A Constructivist Justification of the New Privacy Rights	52	(5)
The Scope of Privacy: Bringing the Body Back In	57	(7)
Excursus: On Property, Privacy, and Legal Paradigms	64	(10)
Conclusion	74	(3)
Is There a Duty of Privacy? Law, Sexual Orientation, and the Dilemmas of Difference	77	(48)
The Neo-Republican Revival of Privacy Discourse	78	(6)
The ``New Military Policy'': Privacy Protection for Gays and Lesbians?	84	(2)
The Right to Privacy and the ``Epistemology of the Closet''	86	(8)
The Construction of a Stigmatized Identity: Bowers v. Hardwick	94	(3)
The Personhood Justification: Normative Paradoxes	97	(4)
The Libertarian Solution: Morally Indifferent Sex and the Harm Principle	101	(15)
Conclusion	116	(9)
Sexual Harassment Law: Equality vs. Expressive Freedom and Personal Privacy?	125	(26)
The Development of Sexual Harassment Law	127	(2)
The Hegemonic Feminist Sex-Desire/Subordination Model	129	(3)
Liberal Objections	132	(2)
Liberal Feminist Alternatives: Redefining the Harm	134	(2)
Postmodern Feminist Reframings: Criticizing Legal Normalization	136	(3)
Postmodern Feminist Reframings, Part2: Redescribing the Role of Law	139	(3)
Legal Paradigms: An Explanation and a Way Out?	142	(7)
Conclusion	149	(2)
The Debate over the Reflexive Paradigm	151	(29)
The Systems-Theoretical Model of Reflexive Law	153	(4)
The Action-Theoretical Approach: A Procedural Paradigm	157	(7)
A Proposed Synthesis: The Sociological Reflexivity Model	164	(5)
Responsive Law	169	(3)
Dangers of Reflexive/Procedural/Responsive Law: Arbitrariness and/or Normalization	172	(3)
Reconceptualizing the Reflexive Paradigm: A Synthetic, Pluralist Approach	175	(5)
Status or Contract? Beyond the Dichotomy	180	(25)
The Traditional Status Regime Regulating Intimacy	182	(2)
Privatization of Family Law	184	(3)
The Communitarian Critique of Private Ordering: Toward a New Status Order	187	(9)
The Limits of Status	196	(1)
Conclusion	197	(8)
Notes	205	(56)
Cases Cited	261	(2)
Bibliography	263	(16)
Index	279