Choices: Feminism, Freedom, and the Limits of the Law
Beth Kiyoko Jamieson
University Park: Pennsylvania State University Press, 2001.
$35.00, 259 pages, ISBN 0271021365.
Texas Tech University
Beth Kiyoko Jamieson, a lecturer in the Department of Politics at
Princeton University, sets herself the monumental task of justifying
"the need for and construct[ing] a feminist theory of liberty."
While this may seem like something of an arrogant boast, Jamieson
does just that in a cogently explained and eminently readable book.
One of her primary goals is to emphasize that a feminist theory of
liberty cannot and should not be comprised of a closed set of principles
that does not allow for alternate ways of thinking or theorizing about
liberty or freedom, a problem that she claims (and shows) has plagued
jurisprudential scholars and theorists in the past. As she puts it:
"Feminism, to me, is about choices, not restrictions it
is enmeshed in liberty interests." In this respect, Jamieson
succeeds admirably in presenting a theory of liberty that encompasses
both old and new ways of thinking about the concepts, contexts, and
limits of liberty, equality, personal dignity, personal responsibility,
and diversity, that is useful for the application of justice and jurisprudence
relevant to feminists and feminist ideals.
Jamieson divides her book up into three distinct sections. The first
(the first chapter) is a thorough, but not overwhelming, literature
review of feminist jurisprudential scholarship. She explains what
she calls feminist jurisprudential theory's "fatal flaw:"
a liberty-equality dilemma which assumes that "liberty and equality
are dichotomous concepts," that they cannot exist simultaneously,
and that an increase in one automatically means a reduction in the
other. The predominant focus for feminists has been on equality, and
while Jamieson does not deny that equality is an important goal, she
argues that a truly feminist theory of liberty should constitute an
understanding that liberty and equality are not at opposite ends of
the spectrum. In her second section (the second chapter), Jamieson
presents a brief overview of historical traditions of liberty. She
examines elements of the principles and theories of liberty of Thomas
Hobbes, John Locke, Jean-Jacques Rousseau, Karl Marx, and John Stuart
Mill. She uses specific aspects of their notions of liberty to support
her own definition of liberty: one that does not rely on painting
liberty as a caricature of liberalism, and one that means more than
the mere absence of restraint. In this section, she also examines
the concepts of negative liberty (absence of restraint, freedom from
outside coercion) and positive liberty (individual agency, freedom
to act), and argues that aspects of both need to be included in a
new feminist theory of liberty.
Her third section is the main argument of her book, and comprises
four chapters; in chapter three, she presents her feminist theory
of liberty, and follows this definition with three separate case studies.
Her definition can be concisely stated thus: "A more useful conception
would be based on an open set of principles and questions, which are
simultaneously reflective of past political theory and grounded in
lived experience." She also states: "A feminist theory of
liberty must be contextual, principled, and contingent." She
proposes three principles based on the three case studies she presents:
a) The Identity Principle individuals should be able to define
themselves in their own manner, and that these definitions should
be flexible as necessary; b) The Privacy Principle individuals
have the right to control their own bodies, free of state coercion
that compromises standards of human dignity; and c) The Agency Principle
individuals have the right to make their own decisions about
how to live their lives, and these individuals must be assumed to
be capable of making their own decisions. She emphasizes repeatedly
that, while she is proposing these three principles based on her readings
of the three case studies, she does not preclude other principles
arising out of others' interpretations of the same cases. As she states
emphatically: "I am happy to grant that other interpretations
may also be plausible. The conclusions reached are not the final words
on the subject but are my attempt to reframe and redirect the debate.
If they are contested, I have succeeded."
The three case studies are the most fascinating part of the book.
She uses a method of reading and interpreting the legal cases that
is untraditional in jurisprudential research close reading
analysis as informed by the methods of James Boyd White and Clifford
Geertz. She uses this methodology, she says, because close readings
of transcripts, analysis of judicial reasoning, and private narratives
of lives intersecting with law can reveal much more meaning in a feminist
vein than traditional jurisprudential analysis methods. The methodology
she uses allows for both political/theoretical principles and lived
experience that she proposes are important to a relevant and useful
feminist theory of liberty. She states that her aim is to show how
"the real force of the law" works in "everyday lives."
She addresses concerns others may have with her methodology by admitting
that the narrative method she uses has a flaw in that it can result
in particularly shoddy and irrelevant scholarship if done poorly,
and she explains how she has crafted her case studies to avoid the
pitfalls this kind of methodological research often falls into. One
of the ways she avoids this flaw is to make sure her conclusions are
not applied in a universal fashion, and to reiterate that the principles
she proposes are examples of one way to think about liberty.
She invites others to explore the issues raised, for truly relevant
conclusions and theories must be contestable to further useful
debates and explorations.
Jamieson's Identity Principle is explored in the U.S. Supreme Court
case Romer v. Evans, which invalidated Colorado's antigay amendment.
She argues that the traditional view of identity politics minimizes
the importance of an individual's self-definition of identity and
veils the differences between groups, and often imposes fixed identities
based on institutional and universal definitions. On the contrary,
in her definition, identity is not fixed, permanent, or mutually exclusive,
and must arise from individual definition. Her Privacy Principle is
explored in the complications arising out of state regulation of surrogate
parenthood as illustrated by several legal cases. She uses the 1905
case Lochner v. New York to show how surrogacy and sperm donation
have fallen under the legal, moral, and political issues inherent
in freedom of contract discussions. She subsequently argues that giving
women a "biological justification" to rescind a surrogacy
contract (and keep the child she gives birth to) but not giving men
an equal right to claim custody of a child produced from their donated
sperm is not unjust, for the "human dignity" issues are
different. As she states: "Surrogacy contracts are not the purest
expression of women's freedom to be 'just like men,' because. . .sperm
can be separated from the man's body; the uterus is part of a woman's
body." The third principle, the Agency Principle, is derived
from a case of intimate violence that was not a court case. Jamieson
explores this case through narratives of the parties involved, the
woman victim (who did not leave the abusive situation), her abuser,
the police who investigated the incident, civil lawyers, and others
associated with the incident. This case, in which the woman chose
not to leave her abuser, clearly demonstrates, Jamieson argues, the
principle of allowing individuals to live their lives according to
their own decisions, even if those decisions seem to go against others'
ideas of what is sensible, ethical, moral, or socially appropriate.
She is quick to point out that she does not propose that intimate
violence and a consistently abusive relationship is simply a "private
family matter" that should not be interfered with by the proper
authorities, for that would mean a return to a time when family abuse
was never acted upon legally. However, although her principle may
seem to point to an unthinkable situation to many feminists
abused women who decide to stay with their abusive partners
she argues that there needs to be room for individual choices for
true liberty to be present, no matter how repugnant those choices
may seem to be.
Aside from the six chapters discussed above, Jamieson provides an
excellent introduction that reads more like a concise overview, or
condensed version of what she discusses. The seventh and last chapter
provides a concise summary of the previous six chapters that helps
make the links between her ideas more explicit and immediate. Reading
these two sections the introduction and her seventh chapter
can provide the reader with an immediate sense of Jamieson's
overall argument, and then move into the six chapters for the more
fascinating details that help to illustrate that argument.
Her writing style is a definite strength, as it makes the book's ideas
accessible to the general reader. She avoids complicated legal vocabulary
and jargon, explaining the processes of legal cases and theoretical
ideas of liberty and jurisprudence in language that is easily understood.
This could be seen as the book's weakness or drawback, however. I
found myself, at times, a little frustrated with how elementary some
of the explanations seemed, and Jamieson does have a tendency to repeat
certain concepts and ideas a little too often. For readers with even
a passing knowledge of more dense scholarly writing/research, or a
passing knowledge of jurisprudential issues (like me), the book could
seem a little condescending, or, perhaps, sound too much like Jamieson
underestimates the ability of her audience to grasp her concepts
as if Jamieson were too used to lecturing to under-prepared and too
easily confused students in an introductory jurisprudence class? However,
having said that, I found that her attention to avoiding the often
perplexing vocabulary and language of complex legal scholarship made
for a quicker and more fascinating read than I was expecting. It was
refreshing to see a subject that is too often so abstract it loses
any personal significance explained in an accessible and more personally
relevant fashion. It made me aware of just how important and individually
significant the issue of liberty is, and, because of its clarity,
it should do the same for other readers.