Regulating Intimacy

Regulating Intimacy: A New Legal Paradigm

Jean L. Cohen
Copyright Date: 2002
Pages: 304
https://www.jstor.org/stable/j.ctt7s504
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  • Book Info
    Regulating Intimacy
    Book 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. .

    eISBN: 978-1-4008-2503-5
    Subjects: Political Science, Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xiii)
  4. Introduction
    (pp. 1-21)

    There have been remarkable changes in the “domain of intimacy” over the past four decades.¹ The massive entry of women (married, single, with and without young children) into the labor force and into public life, the declining importance of marriage with regard to the onset and pursuit of intimate relationships, and the shift in society’s view of reproductive sex from a moral imperative to an ethical choice are some of the relevant processes at work here.² For the first time in history, women are coming to be recognized as full legal persons and as equal citizens—a change in status...

  5. CHAPTER ONE Constitutional Privacy in the Domain of Intimacy: The Battle over Reproductive Rights
    (pp. 22-76)

    Reproductive sexuality within monogamous heterosexual marriage is no longer a legally sanctioned moral imperative. The link between sex, marriage, and childbearing has at last been loosened for women, as has the once compulsory symbolic link between being a woman and being a mother.¹ Women’s presumptive equality has replaced their once self-evident inferior and subordinate social status in law and public political discourse in the United States. Accordingly, choices must be made regarding the form, onset, goal, and content of intimate sexual relationships, including whether or not to reproduce; these choices are increasingly being construed as personal matters.

    Indeed, the right...

  6. CHAPTER TWO Is There a Duty of Privacy? Law, Sexual Orientation, and the Dilemmas of Difference
    (pp. 77-124)

    The limits of constitutional privacy analysis and of the liberal legal paradigm seem incontrovertible when it comes to the issues of group difference that emerge with regard to minority sexual orientations and identities. How can personal privacy and negative liberty protect gays and lesbians from discrimination and oppression based on their intimate choices or sexual identities? How can privacy rights secure respect for disdained forms of intimate association?

    Indeed, many fear that the strategy of privatization as a mode of juridifying tolerance for homosexual intimacy is both ineffective and dangerous. It risks reinforcing the stigma attached to minority sexual identities...

  7. CHAPTER THREE Sexual Harassment Law: Equality vs. Expressive Freedom and Personal Privacy?
    (pp. 125-150)

    The clash between values of liberty, privacy, and equality appears especially intense in the relatively new continent in the legal regulation of intimacy: sexual harassment law. The same cultural transformations of sexual and gender relations that triggered the new privacy jurisprudence are at issue here. Unlike the concept of a privacy right, however, the principles of equality and anti-discrimination that inform laws regulating sexual harassment are clearly present in the Constitution and in federal statute law.¹ Indeed, it seems that in this area the courts can avoid the worst difficulties of privacy analysis, for instead of having to discover unenumerated,...

  8. CHAPTER FOUR The Debate over the Reflexive Paradigm
    (pp. 151-179)

    As indicated in the preceding chapters, I am convinced that the paradigm framework can shed a great deal of light on the dilemmas of regulating intimacy in the contemporary epoch. Many of the negative consequences and regulatory paradoxes in this domain stem from use of the wrong paradigmatic approach by courts and lawmakers. Moreover, the pluralization of the contexts and forms of intimate association and the explosion of issues requiring legal attention (ranging from contraception, abortion, surrogacy, genetic engineering, homosexuality, and nonmarital intimacy of all sorts to divorce, marital rape, and sexual harassment) have created the need for a differentiated...

  9. CHAPTER FIVE Status or Contract? Beyond the Dichotomy
    (pp. 180-204)

    This book began by taking note of an important new trend in the legal regulation of intimacy: the constitutionalization and individualization of matters formerly dealt with by state legislators and local courts under the rubric of family law. The Supreme Court’s discovery in the 1960s of fundamental privacy and equality rights in the domain of intimacy indicated a profound shift in the cultural meaning of gender and sexual relations. It registered the changing status of women and their claims to equal liberty and personal happiness. The transformation of intimacy and the new constitutional analysis also heralded important changes in the...

  10. Notes
    (pp. 205-260)
  11. Cases Cited
    (pp. 261-262)
  12. Bibliography
    (pp. 263-278)
  13. Index
    (pp. 279-290)