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Regulating Intimacy : A New Legal Paradigm - Jean L. Cohen

Regulating Intimacy

A New Legal Paradigm

Paperback

Published: 11th April 2004
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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. .

"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 Affairs

Acknowledgmentsp. ix
Introductionp. 1
Overviewp. 5
Constitutional Privacy in the Domain of Intimacy: The Battle over Reproductive Rightsp. 22
The Feminist Egalitarian Critique of Privacy Analysisp. 28
The Communitarian Critiquep. 42
Privacy as Decisional Autonomy: The Isolated, Disembedded Self?p. 44
Privacy and Identityp. 49
A Constructivist Justification of the New Privacy Rights 52
The Scope of Privacy: Bringing the Body Back Inp. 57
Excursus: On Property, Privacy, and Legal Paradigmsp. 64
Conclusionp. 74
Is There a Duty of Privacy? Law, Sexual Orientation, and the Dilemmas of Differencep. 77
The Neo-Republican Revival of Privacy Discoursep. 78
The "New Military Policy": Privacy Protection for Gays and Lesbians?p. 84
The Right to Privacy and the "Epistemology of the Closet"p. 86
The Construction of a Stigmatized Identity: Bowers v. Hardwickp. 94
The Personhood Justification: Normative Paradoxesp. 97
The Libertarian Solution: Morally Indifferent Sex and the Harm Principlep. 01
Conclusionp. 16
Sexual Harassment Law: Equality vs. Expressive Freedom and Personal Privacy?p. 25
The Development of Sexual Harassment Lawp. 27
The Hegemonic Feminist Sex-Desire/Subordination Modelp. 29
Liberal Objectionsp. 32
Liberal Feminist Alternatives: Redefining the Harmp. 34
Postmodern Feminist Reframings: Criticizing Legal Normalizationp. 36
Postmodern Feminist Reframings, Part 2: Redescribing the Role of Lawp. 39
Legal Paradigms: An Explanation and a Way Out?p. 42
Conclusionp. 49
The Debate over the Reflexive Paradigmp. 51
The Systems-Theoretical Model of Reflexive Lawp. 53
The Action-Theoretical Approach: A Procedural Paradigmp. 57
A Proposed Synthesis: The Sociological Reflexivity Modelp. 64
Responsive Lawp. 69
Dangers of Reflexive/Procedural/Responsive Law: Arbitrariness and/or Normalizationp. 72
Reconceptualizing the Reflexive Paradigm: A Synthetic, Pluralist Approachp. 75
Status or Contract? Beyond the Dichotomyp. 80
The Traditional Status Regime Regulating Intimacyp. 82
Privatization of Family Lawp. 84
The Communitarian Critique of Private Ordering: Toward a New Status Orderp. 87
The Limits of Statusp. 96
Conclusionp. 97
Notesp. 205
Cases Citedp. 261
Bibliographyp. 263
Indexp. 279
Table of Contents provided by Publisher. All Rights Reserved.

ISBN: 9780691117898
ISBN-10: 0691117896
Audience: Tertiary; University or College
Format: Paperback
Language: English
Number Of Pages: 304
Published: 11th April 2004
Publisher: Princeton University Press
Country of Publication: US
Dimensions (cm): 23.93 x 15.7  x 1.91
Weight (kg): 0.43