Regulating Intimacy: Towards a New Legal Paradigm. By Jean L. Cohen
BOOK REVIEW, Rosa Brooks
A decade ago, as a law student fresh from a master’s degree in anthropology, I had the disorienting experience of moving between my law school classes and the graduate seminars in anthropology for which I had cross-registered. I was too new to the academic game to realize that legal scholarship and the social sciences exist in parallel universes, ostensibly dedicated to the exploring similar questions, but virtually never intersecting in practice. In the world of the social sciences, discussion was frequently premised on the conviction that all concepts and categories are contingent, unstable, and socially constructed; meanwhile, in the law school building around the corner, students asked earnestly whether Justice and Beauty can ever be truly compatible. It wasn’t merely that the lingo was different on each side of campus – even basic assumptions about the nature and limits of language and communication differed.
In Regulating Intimacy, Jean Cohen adds to the growing number of scholars both in law and in the social sciences who seek to build bridges between these parallel universes. She does not wholly succeed, in part, perhaps, because she is reluctant to credit the degree to which the world of legal interpretation can be a closed system that is bent on remaining that way. But her book is an import-ant one, and it offers a compelling and subtle challenge to some of the law’s least productive ways of conceptualizing choices about intimacy.
Cohen takes as her starting point the growing American jurisprudence on privacy and the debates that have emerged out of this jurisprudence: where should we locate and how should we define the scope of a “constitutional” right to privacy? Are privacy rights intrinsic to autonomous individuals, or derived from the nature of the polity the Constitution seeks to create? Does a right to privacy also involve a duty to keep certain forms of intimacy out of the public sphere? Can privacy rights be balanced against both liberty interests and equality?
Cohen ably traces our shifting cultural and legal understandings of the proper relationship between the state and the intimate sphere in three chapters devoted respectively to privacy issues in the reproductive context, to a case study of the debate around the Clinton-era “Don’t ask, don’t tell” policy on gays in the military, and to the murky terrain of workplace sexual harassment. Her mastery of the case law and scholarly legal discourse on these issues is impressive, and readers both with and without legal backgrounds will find in these sections of her book a thorough and insightful introduction to American debates about privacy law.
Cohen gives particular attention to the apparent paradoxes that continuously crop up in this area: on the one hand, for instance, feminists want the state to stay out of the bedroom when it comes to choices about contraception and abortion; on the other hand, as MacKinnon and others have argued, constructing the intimate sphere as a “private” zone free of state interference can be a way for the state to freeze into place existing power relations, with predictably appalling consequences for domestic violence and sexual abuse. Similarly, keeping the state out of the bedroom opens up an important space for non-heterosexual sexual activity, but by insisting on a negative conception of privacy (consenting adults should be left alone in the bedroom to do as they wish because however objectionable others may find non-heterosexual sex, what happens in the bedroom is no one else’s business), we risk defining gay and lesbian sexuality as acceptable only because (and if) it is kept “private.” And in the context of the workplace, permitting individuals to speak freely and not censor their sexual selves is often seen as inherently at odds with the goal of preventing discriminatory sex -based harassment.
Cohen argues persuasively that these apparent paradoxes are artifacts of the legal community’s tendency to fall back on two needlessly rigid paradigms for thinking about the role of the state. The formalistic liberal paradigm assumes that the state should ensure procedural fairness but otherwise leave us all alone to do as we will; the regulatory welfarist paradigm assumes that the state should intervene in the lives of individuals as needed to ensure that substantively desirable outcomes are achieved. Conceived in these terms, both paradigms create unavoidable paradoxes: the first over-looks the realities of unequal social power and creates the danger that concepts such as the right to privacy will shield or enable abuse of the less powerful; the second risks trampling on individual autonomy and creating unintended negative externalities as a result of paternalistic and bureaucratic methods.
Cohen’s critique of these competing paradigms is sympathetic but sharp: she painstakingly maps out the ways in which the dominance of these two paradigms distorts the national discourse on privacy and intimacy, and the ways in which they continue to inform the background assumptions even of feminist and critical scholars who imagine themselves to have cast off such sterile dichotomies.
Cohen is slightly less persuasive when she turns to her own “new paradigm” for thinking about the regulation of intimacy. The new paradigm (which Cohen suggests would help resolve legal and policy dilemmas in virtually all areas of law, not merely in the privacy context) is “the reflexive legal paradigm,” which “applies procedures to procedures, steering and fostering self-regulation within social institutions.... [The reflexive legal paradigm] creates and protects ‘regulated autonomy,’ insuring that the bargaining power, voice, and standing of the interacting individuals in the relevant domain are equalized and oriented by the appropriate principles. Provided certain procedural norms and principles of justice are respected, the relevant parties are free to strike whatever substantive agreements they wish” (4).
Cohen draws on the work of Gunther Teubner, Jurgen Habermas, Phillip Selznick, Ulrich Beck, and William Scheuerman in her elaboration of the reflexive legal paradigm, attempting to devise a conception of reflexive law robust enough to avoid charges of irresponsible privatization, arbitrariness, and unfounded evolutionary optimism (152). She suggests that proper application of the reflexive legal paradigm to the intimate domain would enable us to avoid or dissolve the apparent paradoxes described above, replacing blind oscillation between the old liberal and welfarist paradigms with nuanced, context-sensitive evaluations of how and when to regulate intimacy.
Here is where Regulating Intimacy may disappoint its more policy-oriented legal readers. It does not entirely live up to its most ambitious promises, and this is partly a problem of audience, partly a reflection of the book’s structure, and partly a reflection of the peculiarly closed nature of legal interpretation, which tends to resist external insights, and perhaps must inevitably do so if it is to remain uniquely “legal.”
The audience difficulty is most obvious. “Reflexive law” is a concept with resonance for those steeped in the European intellectual discourse Cohen ably represents, but its significance may elude most outside that tradition. Cohen intermittently suggests that her book is addressed not only to those in the social sciences but to the broader community of American legal scholars, judges and policymakers. “I am convinced that it is now urgent for political as well as theoretical reasons that the reflexive paradigm of law inform legal regulation of intimate relationships,” she insists in the closing paragraphs of the introduction (21), and at various moments she urges courts and legislators to take on new roles based on the reflexive paradigm. But she occasionally speaks in an idiom that will be unfamiliar to most legal academics, judges, and policy makers.
On some level, to note this is merely to restate the problem that Cohen lays bare: it is precisely because mainstream legal discourse has generally been unable (or unwilling) seriously to engage with theoretical insights from other disciplines that the law has gotten stuck in a sterile oscillation between paradigms of law that obscure as much as they reveal. Nonetheless, as Cohen observes, for the reflexive legal paradigm to succeed, “The presence and voice of non-experts as well as experts in institutionalized public spaces within each subsystem. . . requires the translation of codes into ordinary language so that there can be communication about concerns that transcend the system’s own exclusionary internal code and rationality” (167).
For similar reasons, readers in the law and policy worlds who are seeking to understand precisely what “the reflexive legal paradigm” might involve in the context of intimate associations may remain unsatisfied by Regulating Intimacy. Legal scholarship, however theoretical it gets, is inevit ably rooted in the concrete, and Cohen at times falls back on lengthy abstractions in lieu of specific examples. Cohen is, of course, not seeking to provide a full and detailed prescription for policy reform in the workplace harassment arena, only suggesting that a shift in theoretical paradigms might enable the policy-oriented to find their way out of some seemingly blind corners. Nonetheless, more concrete examples would have been useful.
Cohen’s “reflexive paradigm” itself is fleshed out only in chapter 4, after the three chapters focused on case studies, and even then it is fleshed out primarily negatively: Cohen discusses, at some length, the kinds of critiques that can be leveled at Teubner’s reflexive model, or that of Habermas, but devotes only a few pages to elaborating her own version of the paradigm, and she never subsequently returns to apply this clearly to her case studies. As a result, the connection between the book’s important theoretical chapter and the case studies remains slightly tenuous.
Regulating Intimacy also has an oddly blithe optimism at times, despite Cohen’s insistence that the reflexive legal paradigm can hold up against charges of evolutionism. Part of the reflexive paradigm’s task is to provide “a constructivist articulation of the grounds and acceptable modes of public regulation of intimacy that everyone could accept in a society committed to personal liberty, gender equality, and ethical pluralism. Moreover, on the reflexive paradigm, fundamental rights would not refer to natural but to constructed autonomy: to the legally recognized discretion and competence imputed to adults to devise and pursue their chosen types of intimate relationships provided certain principled of justice and certain procedures are respected” (13). There is a certain happy circularity to this, and it sits uneasily with the simultaneous observation that a “highly active, well-organized brand of conservatism aims to impose ethical uniformity and conventional gender distinctions” on Americans (21). Given the constructivist nature of rights and norms, the ethical pluralism that does indeed exist, and the lack of commitment many in our society feel towards such things as personal liberty and gender equality, it is not self-evident how we will reach “modes of public regulations that everyone could accept,” or come to a point where everyone accepts gender equality.
Cohen seeks to take insights external to law’s closed universe and apply them within the world of law. She notes that the jurisprudence on privacy continues at times to hearken back to “anachronistic theoretical presuppositions that have been abandoned by most serious philosophers,” such as the notion that there “are essentially private, purely individual matters that concern no one else and hence deserve to be shielded from public scrutiny” (7), the notion that there is “an ultimate ground for norms” or the notion that gender roles and identities are something other than “sociohistorical construction[s]” (9). Cohen is certainly correct both that such theoretical presuppositions continue to have strong effects on the legal discourse on privacy, and that most “serious philosophers” would question these presuppositions. But here I am tempted to say, “Go tell it to the judge.”
Judges, unlike philosophers, must make concrete rulings in specific cases affecting the lives of real, named individuals; as Robert Cover famously put it in his now classic 1986 Yale Law Journal article, “Legal interpretation takes place in a field of pain and death. A judge articulates her under-standing of a text, and as a result, somebody loses his freedom, his property, his children, even his life Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. This much is obvious, though the growing literature that argues for the centrality of interpretive practices in law blithely ignores it.”1 Since what is at stake in legal interpretation is the full coercive powers of the state, judges must make decisions in a way that satisfies our desire for processes that are (or anyway seem to be) principled and fair. To a typical judge, mired in the concrete and day to days, the constructivist nature of norms is likely to appear an inadequate foundation for principled legal decision-making. It may be a more accurate and more flexible description of reality than either natural law or some other set of assumptions, but perhaps there is a sense in which the law must inevitably resist constructivist insights, at risk of ceasing to be “law,” and becoming something else: mere “politics,” perhaps.
There is a paradox here: by refusing to accept constructivist insights, law risks seeming unprin cipled and arbitrary, and oscillating between the artificially opposed paradigms of formal liberalism and regulatory welfarism. But if it accepts these insights, law also risks at least the appearance of being unprincipled and arbitrary. We have a chicken and egg problem: if the reflexive legal paradigm informed the whole of political and social life, perhaps the law could accept constructivist insights and things would be different and better, but it is not clear how to get from here to there.
Cohen is by no means unaware of this problem, which she addresses, although incompletely, in chapter 4. Cohen’s book does not, ultimately, offer a wholly satisfying way to avoid the apparent
paradoxes that inhere in the legal regulation of intimacy. Its greatest strength is that it does try, which is a great deal more than can be said for most works on the subject. Cohen has written an erudite, challenging and provocative book; it will force its readers to reexamine many of their assumptions, and it will provoke important debates for years to come. In this most critical sense, Regulating Intimacy is a resounding success.
NOTES
1. Cover, “Violence and the Word,” 95 Yale Law Journal 95 (1986): 1601.