Book Reviews
| Published date | 01 September 2003 |
| Date | 01 September 2003 |
| DOI | http://doi.org/10.1111/1467-6478.00266 |
Book Reviews
REGULATING INTIMACY: A NEW LEGAL PARADIGM by JEAN L.
COHEN
(Princeton: Princeton University Press, 2002, 304 pp., £24.95)
Although the pleasures of the text often transport readers outside themselves,
into some other place, elsewhere, reading remains a bounded activity. For
example, one holds a book in one's hands as one sits at a desk, enjoys a cup
of coffee, or reclines on a couch. In our embodiment, moreover, we are
physically and temporally located, contextualized. I mention these mundane
determinations of acts of reading because of the contexts of my reading of
Jean L. Cohen's Regulating Intimacy ± the United States government's
preparation for and engagement in war with Iraq. Even as I read Cohen's
compelling analysis and defence of the new privacy rights, I remained
preoccupied by the Bush administration's disregard for international law, its
assault on civil liberties, its neglect of constitutional principles, and its
failure to respond to the millions upon millions urging peace. As law,
legality, and legal institutions seemed to crumble all around, Regulating
Intimacy provided a small glimmer of hope. The book reminded me of law's
aspirations, of the ways law remains a repository for aspirations to something
more, indeed, to something like justice. Cohen writes, `When law expresses
principles, it assumes an aspirational function regarding how we think
individuals ought to orient their behavior' (p. 196).
Regulating Intimacy is a powerful and original defence of privacy, a
defence informed by a deep sense of the aspirational function of law. Cohen
reads the new privacy rights emerging out of Griswald v. Connecticutt as
`indispensable to any modern conception of freedom' (p. 24). Privacy, she
argues, `is symbolic not only of personal autonomy and control over access/
information, but also of the uniquely personal imaginary domain that renders
us incommensurate with others and that deserves protection from public
scrutiny and normalizing judgments' (p. 199). Thus, Cohen emphasizes that
we ought to redefine and defend all the dimensions of privacy that have
come out of these decisions ± decisional, relational, bodily, and entity
privacy (p. 75). In addition to its central defence of privacy, Regulating
Intimacy includes a critical assessment of the duty of privacy in the context
of its biased and indefensible application to lesbians and gay men, `don't ask,
don't tell.' The arguments here usefully distinguish between a right to
privacy and a duty to privacy. That is, they disconnect a right to privacy from
privatization. In this vein, Regulating Intimacy also includes a discussion of
sexual harassment law and a careful consideration of the problem of the
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350 Main Street, Malden, MA 02148, USA
extension of market and contract relations into the intimate domain. Perhaps
even more significantly, the book includes an emphasis on the constructed
and pluralist character of law and laws, an emphasis that informs an original
argument in behalf of reflexive law. This aspect of Cohen's analysis draws in
part from the work of Ju
Èrgen Habermas, from his general theory of discourse
ethics as well as from his more recent constructivist legal theory.
In considering Regulating Intimacy, I emphasize two points. First, Cohen's
defence of privacy rights is persuasive and important. Rights are under attack
in the United States of America. They need to be defended. If we don't defend
rights, if we don't find ways to express them that are appropriate and
meaningful to contemporary society, then we will lose them. The American
Right is organized, powerful, and willing to trample women's privacy rights ±
and, as the so-called war on terrorism is making horrifyingly clear, those of
everyone else. The Right does not need more ammunition from those of us
affiliated with Left, critical, or post-structuralist positions, as Patricia Williams
reminded us years ago in her critique of CLS. At the same time, Cohen's
defence of privacy rights is so persuasive that it exceeds the boundaries she sets
for it. That is to say, her attunement to the nuances of the practices,
deployments, and levels of rights talk, to the politics of law, is tactically so
convincing that her appeal to universalist justifications and moral principles
seems less so. It also doesn't seem necessary ± her tactical point is valuable on
its own. My second point is less a point than a series of questions and
hesitations about reflexive law. Cohen's account of the reflexive law is clear
and learned. But, it may not be entirely convincing. Or, it may simply be the
case that I am not convinced because of my current lack of faith in anything
that could possibly be understood as public debate in the United States.
Cohen argues for personal privacy rights as an enabling condition for
intimacy. More specifically, she holds that underlying the new privacy
jurisprudence is the notion of privacy as decisional autonomy and control over
information and access in the domain of intimacy. Cohen defends this view, on
the one side, from feminist proponents of equality analysis who see privacy as
too tied to the patriarchal family. Feminist critics of privacy focus exclusively
on privacy's past functional role of masking and protecting patriarchal
authority. For these critics, this past role trumps any empowering dimensions
that might attach to a right to personal privacy. Cohen defends privacy, on the
other side, from communitarians worried about the atomizing effects of rights.
Communitarians think that rights rely on a disembodied and unencumbered
self; they worry that a right to privacy ends up as simply a right to be let alone.
For communitarians, in other words, the problem is that rights in general and
privacy in particular harm solidarity and moral responsibility.
Cohen's response to both sets of critics can be boiled down to the insight
that the feminists as well as the communitarians fail to recognize the ways that
rights change. These critics of privacy essentialize either the domain of privacy
or the notion of the person. In the course of her discussion of Bowers v.
Hardwick, Cohen develops her argument, noting that there is no reason to
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