HARD BARGAINS: THE POLITICS OF SEX by Linda R. Hirshman and Jane E. Larson. Oxford: Oxford University Press, 1998. 312 pages. Cloth $30.00. ISBN: 0-19-509664-9.
Reviewed by Leslie F. Goldstein, Department of Political Science and International Relations, University of Delaware. E-mail: lesl@udel.edu.
I found this book mostly disappointing. My expectations were high. It is hard to think of a more fascinating
subject--blurbs on the book cover promise a history of philosophical viewpoints on heterosexual relations from
Plato to MacKinnon that is "remarkably thorough," as well as a history of the public regulation of sexual
behavior, that the publisher promises will be "eye-opening." Moreover, the contents go beyond legal history
and history of philosophy to include social history and history of popular ideology as it bears on sexual relations.
And the press is a distinguished one and the authors are feminists of impressive accomplishments--one a professor
of law at Wisconsin and the other a Distinguished Visiting Professor of philosophy at Brandeis.
Unfortunately, the social history, history of ideology, history of philosophy and legal history parts of the book, which are all intertwined by period, tend on the whole to be fairly shallow rehashes of work that is available elsewhere in more thorough and more thoughtful versions. In a 312 page book of fairly small print the authors devote 28 pages to the history of philosophy, ideology, and social practice concerning sex in the western world of, as they put it, "Jerusalem, Athens, and Rome" (p.33) and their medieval and early modern sequelae. Then there is a chapter on colonial America, comparing Massachusetts with Virginia; another chapter on America of, say, 1770-1840 (the authors are not terribly precise on dates, which is perhaps appropriate in an ideological history because ideas catch on gradually); one on the sexual ideas of the women's rights phase of feminism in the mid-nineteenth century, including John Stuart Mill but with surprisingly little discussion of Mary Wollstonecraft; and one on various aspects of the "social purity" movements of late nineteenth century "Victorian" America, accompanied by a description of the emerging counter-voices on behalf of free love that come into prominence also in mid-nineteenth century America. Then follow four chapters (in pages, about a third of the book) on libertinism, which the authors view as the dominant sexual paradigm of our time, and a problematic one. They cite the work of various historians as to forces that contributed to its rise: the industrialized urban economy with its "commercialization of working class leisure" in such forms as dance halls, the invention of the automobile (offering a private place for romantic encounters of the unmarried), and the writings of Darwin, Havelock Ellis, Kraft-Ebbing, and [of course] Freud and Kinsey. They describe the legal changes that followed in its wake, and that prevail to the present. Then they offer a philosophic analysis of it, utilizing what they view as the three respected secular philosophies of the Western tradition: virtue ethics (their own version of neo-Aristotelianism), liberalism--which they take [correctly, in my view] to be a respect for both liberty and equality--and utilitarianism (a desire to maximize pleasure and minimize pain for the greatest possible number of people). In effect they attempt to blend these three, using the goals of each to temper the other two strands; for instance, they temper Aristotle's virtue ethics with the belief in human equality of liberalism. Finally in this section, they describe a variety of complaints that have emerged about the libertine regime, from voices as diverse as feminist theorist Catherine MacKinnon, conservative media pundit Bill Kristol, liberal feminist legal scholars or economists intent on reforming divorce laws such as Lenore Weitzman and Saul Hoffman, and journalists concerned about the negative effects of divorce and single parenthood on children, such as Barbara Dafoe Whitehead (pp.231 and 244).
From these well-warranted complaints, the authors conclude that sexual libertinism is "a decaying paradigm" (p.251) and needs to be replaced with a new, philosophically justifiable approach. The rest of the book (about a fifth of it) is devoted to explaining and justifying their own approach, an approach that attempts to blend the amalgam of the three aforementioned philosophies with rational choice analysis (or what the authors term "bargaining" analysis--hence the book title). Their "bargaining" approach is basically the assumption that when two people join in a sexual encounter each is trying to maximize certain of his/her goals and in offering sexual pleasure to the partner is trying to get the best price for the offer that s/he can get. It is possible that each party simply wants from the other a few moments of sexual pleasure, but more typically people have a mix of goals. These might include physical pleasure, emotional intimacy, companionship, pleasures connected to dominance or submission (authors seem to disapprove of these, and I do not blame them, but these too would seem to be part of the real-life picture). Moreover, and central to their argument, authors seem to suggest (although without the clarity I would have liked) that because women are vulnerable to childbirth and pregnancy they typically wind up less well-off than men in economic resources and (for reasons that authors do not attempt to explain) in societal resources of institutionalized power, and therefore women use sexual access to their bodies as a way to bargain for economic resources that typically wealthier and more socially powerful men can provide. The authors do not assert that only women do this, but they note it as a common pattern. Thus they see the nineteenth century campaign by middle-class married women to eliminate prostitution "as predictable cartel behavior" because, "Where prostitution is curtailed, wives are better situated to force their husbands to bargain with them for sexual access" (pp. 293, 287). Using their philosophic amalgam and this bargaining perspective, the authors then propose various reforms of laws concerning rape, fornication, adultery, and prostitution.
Of course rape from this perspective is not free, calculated exchange; it is robbery. Thus the authors endorse Steven Schulhofer's suggestion that all taking of sex (in the authors words "intimate access to the body--the genitals and other sexualized parts of the body such as breasts, buttocks and crotch") which is not prefaced by EXPRESS consent should be criminalized, just as our society criminalizes the taking of money without express permission. They argue that it should be a crime (although a lesser crime than sex accompanied by actual force or its threat), for example, for a male to touch a female's breast, or a female to touch a male's buttocks, without express permission in advance. "She didn't say yes, but she didn't say no either," would not suffice as a defense against criminal prosecution under this proposal (p.271).
Before detailing the rest of the reforms endorsed by the authors, I will turn to what was disappointing and what is particularly worth recommending in this book. Disappointing was the once-over-lightly approach to cultural and philosophical history prior to the libertinism period on which the authors really focus. Sometimes the summaries are so shallow as to be outright misleading; I found the discussions of Aristotle (see Nichols 1992 or Saxonhouse 1982) and of Marx (see Goldstein 1980) to be particularly weak. Also, the authors have an unfortunate taste for the rhetorical flourish at the expense of intellectual precision, which carries them on too many occasions into outright misstatements. Here are a few egregious examples:
This would come as quite a surprise to the thousands of American women who struggled for years, some even enduring painful forced feedings in prisons as part of publicity demonstrations, to obtain the constitutional amendment securing them the vote nationwide in 1920.
Again, this remark would be puzzling at best to Queen Elizabeth of England, Queen Isabella of Spain, Catherine the First and the Second of Russia, and Queen Christina of Sweden. All not only "governed" in this period but ruled countries that were major players on the world stage at the time of their rule.
Subhuman is my own insert, but I add it only to underline the obvious sense of the sentence; since free Greeks are also animals in the biological sense, what other possible meaning could the authors' sentence intend?
Apart from misstatement for the sake of rhetorical flourish, the book also suffers from occasional errors that a careful editing should have caught--e.g. the reference to Buck v. Bell as "the 1930s eugenics case" (p.191) even though elsewhere the book correctly dates the Supreme Court's final resolution of the case at 1927. In sum, this degree of carelessness toward certain facts should cause one to exercise extreme caution before assigning this book to students.
A final disappointment is the inordinate emphasis on law-on-the-books as distinguished from law-in-action. Of course it is much easier to research what statutory codes or reported judicial appellate cases say the official law is than it is to figure out just which laws are being enforced and when enforcement patterns shift and why. Still, in a book that purports to be a social and cultural as well as a legal history, one would expect a little more information on, say, the extent to which adultery or fornication laws were enforced beyond the colonial American era. The authors tell us that in 1830 Massachusetts a couple who committed adultery together would not be allowed later to marry ("it was considered polygamy" p.87). They never come back and tell us when this changed, or even how commonly the rule was applied when it was the law.
There are, nonetheless, some valuable and some new or original contributions in this book that I do recommend. In the valuable category are the bibliographic references at the end of each chapter. These are all worthy of attention. The analysis offered of Tocqueville's views on American women, while not utterly new (for a similar treatment, see Goldstein 1987) is both thoughtful and insightful. Another notable aspect of the book is its detailed and thoughtful summary of Bill Kristol's essay on Tocqueville from the edited collection by Ken Masugi. (Kristol 1991) Although neither the authors nor I agree with Kristol's conclusion that wives must submit to husbands, each of us finds certain elements of it insightful. I, for one, was particularly taken by the passages where the authors quote Kristol defending the need for men to be sturdy and intractable, for (he asserts) male "intractability" is what keeps society resistant to despotism. This thing he calls "male intractability," and which many women call "male ego" is in my view what Aristotle was referring to in the notorious passage where he says that as between most married couples it is the male who is by nature [literally] "more hegemonical." This Greek word meaning more hegemonical is generally translated "more fit for leadership," but the Greek "-ical" ending can also bear the sense "more inclined toward," or "more interested in." Whether for reasons of nature or social construction (and the authors wisely refrain from trying to unravel how much is each), it does seem that males tend to find more psychic payoff in being "boss." Aristotle's way of coping with this is to avoid challenging it directly but to tell men that they should rule their wives in the "political" mode of rule, which he defines as the way that people rule others who are free and equal to themselves and with whom they will be taking turns ruling and being ruled, or with whom they share rule. Although Aristotle says that male rule over wives is permanent rather than temporary, he provides a normative check on husbandly despotism by this guideline. The authors ignore these "political rule" passages in Aristotle. In any case, the authors' thoughtful summary of Kristol's essay prompted me to see links between Tocqueville and Aristotle that I had not seen before.
In the social/legal history sections of the book there are two sections that seem to make original research contributions that are highly informative and thought-provoking. The first is the authors detailed account of the 1885-1900 WCTU campaign to get states to raise the age of consent (pp.124-133). Until then, in most of the American states, following common law, it had been ten. In Delaware, it was seven! This campaign put the WCTU on the map as a successful, nation-wide mass-membership, lobbying organization in the 1880s. By 1900 thirty-two states had raised the age of consent to sixteen or eighteen. The authors offer an intriguing account of the campaign, including descriptions and analyses of the kinds of counter-arguments the WCTU encountered.
The second really insightful section in the book, and here I would say "eye-opening" fits, is the authors' devastating exposé of the role of one Morris Ploscowe in shaping sexual regulation/deregulation sections of the Model Penal Code of the American Law Institute. This code was eleven years in the making (involving proposals, drafts, debates, re-proposals, etc. from certain prominent attorneys) and was finally issued in 1962. Both the writings of Ploscowe himself, as quoted at some length by the authors, and the Model Penal Code, can fairly be said to reek with misogyny. Ploscowe, who published "columns in a New York legal newspaper recounting anecdotes of bloodthirsty wives leading lives of idle luxury on unearned alimony" through the mid-1960s (pp.204-5), urged the code drafters to lower the age of consent for statutory rape back down to ten or twelve, insisted that it is unjust to prosecute a man for raping a drunk woman, because she has knowingly "taken a chance that she will be tampered with sexually" and argued it was unjust to prosecute the date-rapist who just happened to "attempt[] to impose his will a little too forcibly" (pp. 187-191). On the other hand, he encouraged prosecution of prostitutes, whom he called "broken bits of humanity" and discouraged prosecution of their [male] patrons. The Model Penal Code did not follow all of his recommendations, but that he influenced it as much as he did is indeed frightening. His main influence appears to have been (although the authors are not clear on this point; see pp.187-8), in shaping the corroboration requirements that prevailed in rape law until feminist-inspired reforms of the seventies and eighties. Under these legal rules, a female victim's claim that she had been raped would not suffice for a conviction; it would have to be independently corroborated as to (1) the fact of penetration, (2) the fact the she had not consented, and (3) the fact that force or the threat thereof had been employed.
Apart from these sections, the main original contribution of the book is its last fifty pages, where the authors set forth their bargaining-strategy-inspired proposals for legal reform. They propose to equalize woman's societal weaker bargaining position by laws that make both fornication and adultery legally actionable activities. Fornication (sex between not-married people) that just involved a few dates would not trigger any legal consequences (this is currently the rule for all fornication and has been so at least since Eisenstadt v. Baird, 1972, although the authors do not make that clear) but if it went on for some time (the authors do not say how long) the partner who had more resources would become legally liable for support of the other or the partner for whose benefit the other had sacrificed some work or job opportunity would become so liable. As far as I could figure out the main difference between this proposal, which the authors call "legal concubine" and current regimes of common-law marriage is that they would be triggered by the amount of time the couple was together rather than whether they "held themselves out as a married couple." A spouse who catches his or her partner in adultery would be able to sue for a property settlement in an ongoing marriage or get a better property arrangement if s/he sued for divorce. This seems fine for the 20% or so of Americans who actually have positive rather than negative assets. Unfortunately, it leaves most working class spouses right where they are right now, because there is not much property to go around.
For statutory rape, the authors propose something much like what many states already have. I have already detailed above their endorsement of Schulhofer's proposal for forcible rape. The authors do not say how they feel about rape within marriage, although Schulhofer's scheme, requiring explicit permission to touch any private body part each time would seem utterly impracticable for a couple who routinely sleep together.
Finally, the authors have a terrific proposal for coping with prostitution. They propose that it be treated as an unfair labor contract, unduly exploitative, and be dealt with by the state as such. This mean the employer (AKA the patron) is the guilty party, not the prostitute, who is seen as the necessitous victim. Making it an "administrative or civil law" violation rather than criminal appears to offer the promise of getting more convictions and having it truly enforced. The penalty would be a fine.
I would have liked to see a much fuller discussion of the authors' own proposals than this book actually devoted to them. In any case, I recommend that in addition to using the various bibliographic sections, professors interested in "women and law" or "law and contemporary moral problems" could beneficially assign to students pages 267-294, which present the authors' suggestions for legal reforms to create a more just set of sexual arrangements in America.
References
Goldstein, Leslie F. 1980. "Mill, Marx, and Women's Liberation," JOURNAL OF THE HISTORY OF PHILOSOPHY 18:319-334.
Goldstein, Leslie F. 1987, "Europe Looks at American Women 1820-1840," SOCIAL RESEARCH 54:519-542.
Kristol, William. 1991. "Women's Liberation: The Relevance of Tocqueville," in INTERPRETING TOCQUEVILLE'S DEMOCRACY IN AMERICA, ed. Ken Masugi (Savage, Md.: Rowman and Littlefield) 480-493.
Nichols, Mary. 1992. CITIZENS AND STATESMEN: A STUDY OF ARISTOTLE'S POLITICS (Savage, Md.: Rowman and Littlefield).
Saxonhouse, Arlene. 1982. "Family, Polity and Unity: Aristotle on Socrates' Community of Wives," POLITY 15:202-219.
Copyright 1999 by the author.