ISSN 1062-7421
Vol. 12 No. 4 (April 2002) pp. 194-196.
REAL CHOICES: FEMINISM, FREEDOM, AND THE LIMITS OF THE LAW by Beth Kiyoko Jamieson. University Park: Penn
State Press, 2001. 259 pp. Cloth $35.00. ISBN: 0-271-02136-5.
Reviewed by Gayle Binion, Department of Political Science, University of California, Santa Barbara.
Beth Kiyoko Jamieson has written a valuable book. Dedicated to addressing, conceptualizing and critiquing liberty
as a feminist value and from a feminist perspective, she focuses seriatim on three major components of a feminist
theory of liberty: IDENTITY, PRIVACY and AGENCY. For the exploration of each she utilizes a kind of "case
study" approach, selecting an area of public controversy ripe for resolution by reliance on and application
of a proper understanding of positive (freedom to) and negative (freedom from) liberty. With respect to IDENTITY,
Jamieson selects sexual orientation, and discrimination on the basis thereof, as an excellent context within which
to argue for the right to "individual self definition" (at 115) as "basic to a feminist concept
of liberty" (p. 115). She critiques some of
the major case law on the subject, and while supportive of the outcome of ROMER v. EVANS (1996), decries what she
sees as its conclusion that "identity doesn't matter" (p. 108). This is where the basic thesis and underlying
premise of the book is most apparent, that theories of equality do not provide the most satisfying approaches to
social disputes more properly understood as debates about liberty. It is also in this section of her work that
a significant similarity with the contemporaneous work of Drucilla Cornell (1998) is apparent. Both see sexual
identity as the core of one's being and both believe that feminist theorists lack a concern about or interest in
liberty. The latter point has become a virtual, and often undocumented, mantra in recent scholarship of the "new"
feminist era, but not
a particularly persuasive claim about a broad-based movement for WOMEN"S LIBERATION. It is difficult to think
of a word more closely synonymous with liberty than liberation. Although it is true that the modal feminist argument
in academic scholarship has been that women's route to liberty is through a thorough dismantling of the ingrained
institutions of social, political and legal inequality, nothing in Jamieson's work disputes this basic proposition.
What Jamieson does do is place the enterprise of defining the nature and contours of freedom front and center.
The means necessary for its realization are not addressed as especially germane to her analysis.
Jamieson also comments critically on the tendency of feminist scholarship to address liberty within only the context
of reproductive freedom, while herself selecting highly gendered subjects for her case studies: sexual identity
for the IDENTITY principle, reproduction for the PRIVACY principle and domestic violence for the AGENCY principle.
Although feminist theorizing has much to say concerning wider ranging questions about liberty, such as penology
and campaign finance, perhaps it is the nature of feminist scholarship to produce its richest theory
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when addressing the real life experiences of women. Certainly Jamieson's own choices support this hypothesis and
reinforce the basic axiom that feminist thought begins with "women's experience."
Women's experience is central to Jamieson's analysis of reproduction although PRIVACY is but one of the many values
she explores in analyzing surrogacy and egg and sperm "donation." In this chapter on reproductive matters
she offers her most direct criticism of "equality" as a mode of gender analysis. Herein she states,
"I shall demonstrate that differential treatment of men and women can be not only just but also necessary
for and consistent with a commitment to liberty" (p. 121). This comment is unexceptional but it is premised
on a view of "equality" as "gender blindness" which, as I argued more than a decade ago, (Binion
1991) was but
the most early stage of feminist jurisprudence, a necessary first step in the deconstruction of patriarchal institutions.
Condemnation of "differential treatment" of men and women in matters of reproduction, where the experience
and interests are asymmetrical, has not been a common theme in feminist literature on the subject. Her assessment
of the issues addressed in this chapter is nevertheless entirely sound and intelligent, concluding for example,
that sperm donation is not equivalent to gestation and that genetic connection is not the only, nor necessarily
the best, definition of "parenthood." Indeed my only suggestion to Jamieson, with respect to future
work that may build on the observations and arguments in this well reasoned chapter, is that she explore some missed
opportunities. I might note three
in particular. First, with respect to JOHNSON v. CALVERT (1993), it is disappointing that Jamieson's analysis
of the California Supreme Court's decision in a non-genetic gestational surrogacy case missed that the only dissenter
was the (then) lone woman on the Court. Jamieson, referring to Justice (Joyce) Kennard as "he" (p. 145),
was thus unable to note that it was the sole woman, a conservative Republican, who concluded that gestation is
itself an act of "parenting." Only she did not devalue Johnson's role as merely a provider of a contracted
service. Also missed was that the Court's distortion of the Uniform Parenting Act of 1975 was for the purpose
of allowing room for new definitions of "mother," an identity which historically and (likely) world wide
was defined by giving birth. Alternatively, had the Court relied exclusively on "genetics" as the source
of parentage, which would have similarly resolved JOHNSON v. CALVERT in favor the Calverts, it
would have implicitly empowered egg donors to challenge the parentage rights of gestational mothers who are beneficiaries
of these donations. (Because the
law clearly addresses the sperm donor, who has no parenting rights, if a licensed physician does the insemination,
the opinion had consequences for only women's rights.) The application of the thoroughly novel and non-scientific
theory of "intentions" determining parentage allowed the Court to reduce the determination of parenting
to a very familiar question in contract disputes, what did the parties intend. Finally, Jamieson's analysis also
missed the opportunity to analyze the very concept of "contract" from a feminist perspective. Given
the long common law history of married women's inability to make contracts, some have argued that prohibiting women
from contracting to be a surrogate smacks of the traditional disempowerment of women. Her solution to the conundrum
is to conclude that to respect women's rights, surrogacy "contracts" should be legal but not enforceable.
It is a good way to resolve the situation, but it
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ignores that a contract is only a legal document because it is enforceable.
The third principle of liberty explored by Jamieson is that of AGENCY, and domestic violence is the case study.
It is clearly Jamieson's most creative analysis and the most methodologically challenging. She makes the basic
argument that women in domestic abuse situations should not be subjected to judgmental treatment because of the
choices they make. She suggests, through reliance on the narrative of an abused woman, that these are often, if
not generally, complex situations that defy simplistic solutions and one should not ask, "why didn't she just
leave him?" The analysis is interesting, the use of a lengthy narrative intriguing, but the
solution troubling. Not only has Jamieson addressed the weakest intellectual proposition, that of "blaming
the victim," which is not a common theme in feminist literature, but she has as well offered a very problematic
conclusion . to wit, that women must be free to make these apparently destructive choices. It is troubling because
overlooked in the analysis is the implication for the criminal law of assault, battery, extortion, etc. of her
position. Should a woman's decision to stay in an abusive situation, more often than not because she has no effective
choices, override the responsibility of law enforcement to arrest and prosecute the abuser? Also
overlooked is the flip side of his concern, that the inability of law enforcement to protect such victims may explain
the apparent "choice" of victims to continue to live under these circumstances. The fact that the great
majority of women killed by their domestic abusers suffer this fate only after they have left him suggests that
AGENCY may be an overrated value for women in that situation and fear of the consequences more proximate. These
two interrelated concerns should, inter alia, temper any confidence with which the argument is maintained that
this is a good arena within which, under current social conditions in the U. S., to thrown down the gauntlet for
AGENCY.
Although the foregoing suggests that I have some disagreement with Jamieson's overall thesis and the manner in
which she operationalizes feminist principles of liberty, her work is stimulating and worthy of wide attention
and dialogue.
REFERENCES:
Binion, Gayle. 1991. "Toward a Feminist Regrounding of Constitutional Law," SOCIAL SCIENCE QUARTERLY
72: 207-220.
Cornell, Drucilla. 1998. AT THE HEART OF FREEDOM: FEMINISM, SEX, AND EQUALITY. Princeton: Princeton University
Press.
CASE REFERENCES:
JOHNSON v. CALVERT, 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P.2d 776 (1993).
ROMER v. EVANS, 517 U.S. 620 (1996).
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Copyright 2002 by the author, Gayle Binion.