A great deal hinges on the mode of legal regulation of a particular intimate matter. Library of Congress Cataloging-in-Publication Data Cohen, Jean L. ³² Rather, I maintain that the concept of a right to privacy in relation to intimacy is felicitous and hermeneutically cogent precisely because of its diffuseness and breadth: it does indeed ascribe decisional autonomy and control over access and information to the individual regarding certain intimate matters, but it also speaks to our contemporary cultural imaginary about personal identity and the importance of being able to creatively shape and reshape oneself through intimate relations shielded from the conformist pressures and intrusions of public judgment. Cohen focuses on sexual relations, reproductive rights, and sexual discrimination, her reflexive paradigm of law applies to any sort of legal regulations. Provided certain procedural norms and principles of justice are respected, the relevant parties are free to strike whatever substantive agreements they wish. I thank James Turner as well, for his diligence in the preparation of the bibliography.
Instead, it creates and protects regulated autonomy, ensuring that the bargaining power, voice, and standing of the interacting individuals in the relevant domain are equalized and oriented by the appropriate principles. Connecticut that there is a constitutional right to privacy here, regarding contraception was the right decision, but that arguments about privacy law are often deeply flawed 9. Many feminist egalitarians thus argue that direct, substantive legal regulation in a domain once considered off-limits to state intrusion—the private family—is indispensable to justice between genders. Her current projects concern rethinking state and popular sovereignty in the epoch of globalization, as well as defending the law-making capacities of secular polities from religiously motivated legal pluralism. Cohen's learned approach to arguing that privacy is neither arbitrary nor archaic engages a surprisingly wide range of important contemporary thinkers. Can we protect the pursuit of personal happiness while requiring people to behave responsibly toward others? Chapter 2 synthesizes the ideas presented and discussed in these conferences.
This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us. Pluralization of the forms of legitimate intimate association is one of its effects. So does contestation over the forms and ethics of intimate relationships and over the gendered division of labor. Cohen focuses on sexual relations, reproductive rights, and sexual discrimination, her reflexive paradigm of law applies to any sort of legal regulations. Creatively borrowing from recent debates within European legal theory about the prospects of a 'reflexive paradigm' of regulation, she demonstrates persuasively why traditional views of the proper legal treatment of the domain of intimacy need to be reformulated.
Both are guided by the principle of equal liberty, although they construe it differently. I would like to thank Ute Gerhard and Cristel Eckart for inviting me to the conference Public and Private, sponsored by the Graduiertenkol-lege at the Johann Wolfgang Goethe—Universität, Frankfurt-am-Main, in the spring of 2001. The regulation of intimate relationships has been a key battleground in the culture wars of the past three decades. In short, the criticisms succeed only against anachronistic justifications for such a right, but not against my constructivist approach. Without his support this book would not have been written. Indeed, it seems paradoxical that privacy and autonomy rights are being asserted as fundamental in American jurisprudence just when their supporting philosophical arguments seem no longer convincing. Disputes have typically arisen over questions that apparently set the demands of personal autonomy, justice, and responsibility against each other.
Cohen's book is worth the effort. This is a welcome contribution to the integration of moral and social theory. Cohen's learned approach to arguing that privacy is neither arbitrary nor archaic engages a surprisingly wide range of important contemporary thinkers. The autonomy or privacy that the law claims to recognize is its own creation. 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. How can the charge of archaism or arbitrariness be avoided when there are no agreed upon criteria to determine just what is fundamental to personhood or just which intimate choices, relationships, and modes of expression are to be covered? Law, Sexual Orientation, and the Dilemmas of Difference The Neo-Republican Revival of Privacy Discourse The New Military Policy: Privacy Protection for Gays and Lesbians? Her selection of case studies is timely and of great interest—giving the book immediate practical value. 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.
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. A first-rate discussion occurred at the Centre, for which I am very grateful. My argument is for legal pluralism and cogent choice among legal forms within a coherent paradigmatic framework. Connecticut, in which the Supreme Court explicitly recognized a constitutional right to privacy for the first time covering the use of contraception , what is commonly referred to as the new privacy jurisprudence has developed around matters of reproductive rights, sexuality, and intimate personal relationships. Can law stay out of the bedroom without shielding oppression and abuse? There I explored the relation between law and the construction of gendered identity as well as the neocommunitarian approach to the regulation of minority sexual orientations.
My defense of the privacy justification for abortion rights was first developed in the paper prepared for that conference, which subsequently appeared in the Columbia Journal of Gender and Law 1992. I have in mind the tendency to approach the issue of regulation from within either of two competing paradigms of law—the liberal model and the welfare model—that structure the possible responses in ways that are one-sided and reciprocally blind. The regulation of intimate relationships has been a key battleground in the culture wars of the past three decades. Rather, substantive materialized law, especially when it intends to equalize, does so by dictating outcomes. Cohen's book is worth the effort. Can regulation acknowledge a variety of intimate relationships without privileging any? I attempt to show that it is possible to avoid some of the most intractable paradoxes involved in the legal regulation of intimacy by shifting to a new theoretical framework. Can regulation acknowledge a variety of intimate relationships without privileging any? Cohen has authored a genuinely pathbreaking work which should influence policy and judicial decisionmaking.
Her comments and the discussions with Anita Allen and, again, Maeve Cooke were very helpful. Casey finally decided in 1992. In addition to those already mentioned, I would like to thank the following friends and colleagues for their help and support: Alan Ryan, SeylaBenhabib, Martha Fineman, Rainer Forst, Morris Kaplan, Kendall Thomas, Bob Shapiro in his capacity as chair of the political science de-partment , and, last in the sense of most recent, Susan Sturm. Must regulating intimacy involve a clash between privacy and equality? The whole discourse of fundamental privacy rights protecting the individual and her negative liberty against state intervention seems anachronistic. In short, one goal of Chapters 1 and 2 is to redeem the insights of republican and liberal theorists regarding the intrinsic and instrumental importance of privacy on a different theoretical terrain than what such arguments have in the past presupposed. The book thus operates on two levels simultaneously.
Unlike formal law, however, it does not simply adapt to natural private orderings or prior distributions, or posit natural liberty. Law based on the welfare paradigm is materialized—substantive, particularized, and goal-directed. The constitutionalization of individualized privacy rights that are construed as fundamental in the domain of intimacy ascribes to the intimate associates themselves the competence to choose both how to pursue happiness and how to realize their conceptions of the good life. Expressive Freedom and Personal Privacy? Indeed, the idea of a right to the privacy of intimate relationships and all that this entails is replacing private property as the cardinal symbol of personal freedom, symbolizing the boundary of the legitimate scope of governmental authority and of appropriate concern by third parties. 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. Creatively borrowing from recent debates within European legal theory about the prospects of a 'reflexive paradigm' of regulation, she demonstrates persuasively why traditional views of the proper legal treatment of the domain of intimacy need to be reformulated. 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.