Regulating Intimacy: A New Legal Paradigm (review)

For Jean Cohen, the U.S. Supreme Court's decision Lawrence v. Texas will decide more than whether the U.S. Constitution prohibits states from criminalizing homosexual sodomy. In addition to resolving the underlying constitutional issues, the Court's decision may well be another exhibit in her case for a new legal paradigm. Even for scholars not well versed in jurisprudence, the purpose of Cohen's latest book is breathtaking. Frustrated with the calcified ideologies of the dominant liberal and social welfare models of law, Cohen argues for a third paradigm of law based on procedural reflexivity. This emergent reflexive paradigm of law creates and protects "regulated autonomy," thus providing a more satisfactory accounting for privacy rights in sexual reproduction and sexual relations.

Although Cohen focuses on sexual relations, reproductive rights, and sexual discrimination, her reflexive paradigm of law applies to any sort of legal regulation. In Cohen's view, a reflexive paradigm of law is a new form of law and a meta-paradigm calling for a new conceptual framework of a decentered societal model (176). As a form of law, reflexivity requires that any regulation be itself governed by an accounting for the effects of the regulation on people's autonomy. Provided that these basic principles of fairness and procedural justice are respected, parties can agree to any set of agreements. Second, as a conceptual framework, reflexivity allows the use of a variety of regulations to protect procedural interests. In that sense, reflexivity allows the use of private contracting, governmental legislation, and administrative regulations to protect individual autonomy on a larger scale.

Cohen builds her case for a new legal paradigm by examining court cases and legislation that address problems in sexual harassment, sexual orientation, and reproductive rights. As one example, Cohen argues that the tensions between the traditional paradigms force a "duty of privacy" on gays and lesbians in exchange for tolerance (84). The U.S. military's "don't ask, don't tell" policy is the most literal example of the burden placed on gay and lesbian soldiers to hide their sexuality in exchange for tolerance. Cohen uses the policy to illustrate the difference between legal protections afforded by constitutional privacy rights and being forced into privacy. Cohen suggests that a reflexive paradigm of law can avoid that trap. First, the reflexive nature of regulation would prevent a heterosexual majority, lacking a convincing moral argument for discriminating against homosexual relationships, from privileging its form of life by criminalizing or unfairly regulating the intimate relationships of a minority (115–16). Second, the reflexive legal paradigm would closely examine not only the military's "don't ask, don't tell" policy, but also how other military regulations and customs intersect with that policy to impact the gay soldier's autonomy.

For rhetoric scholars, Cohen's book is useful in two ways. First, Cohen's discussion of legal texts, whether Supreme Court opinions, legal scholarship, or legislation—provides a model of how to perform interesting and engaging legal rhetorical criticism without assembling an armada of persnickety reference notes. For example, Cohen's brilliant dissection of the Court's prior homosexual sodomy decision in Bowers v. Hardwick illustrates how the majority was able to blur the lines between homosexuality and so-called homosexual conduct in affirming homosexual sodomy laws (94–96). Cohen's discussion of that case is especially admirable for her ability to address the specific arguments advanced in the case without losing sight of the larger question of the appropriate framing of privacy rights. Any scholar who spends time with legal texts would benefit from emulating her careful approach.

A second contribution Cohen can make is in the reflexive legal paradigm's capacity to address various forms of legal regulation. Law comes in so many varieties of form that it often feels impossible to comprehend the notion of a unifying legal rhetorical structure. For example, a state governor's clemency order is sometimes just the voice of one author, whereas a U...