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On Law and Chastity by Robert E. Rodes, Jr. (Carolina Academic Press)

Reviewed by Isaac West, Department of Communication and Culture, Indiana University.  Email: inwest [at] indiana.edu in LPBR Review Essays .  All previously published reviews may be obtained at the Law & Politics Book Review web site: http://www.bsos.umd.edu/gvpt/lpbr

Robert E. Rodes’ On Law and Chastity advances a programmatic agenda for recuperating the legal regulation of sex outside of marriage as one way to restore moral clarity and order to our contemporary culture. Rodes’ work, an updated version of a law review article originally printed in 2001, thoroughly traces the steady erosion of the promotion and/or consideration of chastity in a variety of legal arenas including obscenity regulations, sexual harassment protections, divorce and parental custody cases, employment discrimination lawsuits, and rape prosecutions and shield laws. The extensive documentation of cases, statutes, and regulations across states and nations is impressive, and the chronological recounting of the legal lineage of these issues succinctly reviews the genealogy and stakes of our current cultural-sexual milieu. Organized around four strands of legal theory that have undermined the legitimacy of state-enforced chastity (instrumentalism, libertarianism, free speech, and feminist), Rodes’ responses to these theories present an extensive argument for the return of chastity as a social norm.

With that said, I have struggled with this review for a number of reasons. First, I am wary of romanticizing the past. The good old days were not all that good for a number of people, especially those who were not privileged, upper- to middle-class, white, straight, married men. Moreover, Rodes’ resurrection of the cultural mythology associated with chastity necessarily relies on a number of gendered, racialized, and heterosexist notions that cannot be justified except through a self-righteous claim to a monopoly on morality. Second, I cannot align myself with Rodes’ perspective or proscriptions given his hostility to any sexual activity outside of legally-sanctioned heterosexual civil marriages. Here I do not mean to suggest that any of us can ever really act as objective readers, but I take particular offense to his suggestion that “all homosexual encounters are wrong,” basing his opinion in “academic arguments” that “oppose homosexual practices by relating the goodness of the sex act to its effect of establishing and supporting a personal bond that instantiates the metaphysical complementarity of male and female*a complementarity more profound and pervasive than the obvious one between alternative forms of plumbing” (pp.96-97). So while I admit my lack of objectivity from the start, I do want to provide a fair reading of Rodes’ argument. Thus, in fairness to Rodes, I want to outline first his investment in chastity as a normative project, then I will address his responses to the critiques of chastity, and finally I end with a critique of the sexual normativities underwriting his project and question the efficacy of his suggestions. [*520]

Strictly defining chastity as penile-vaginal penetrative intercourse between a legally married couple consisting of one man and one woman, Rodes suggests that a return to the sexual and legal past would decrease sexual violence and prevent moral decay. Rodes asserts that in the United States of America in the 1950s: “it was well understood that chastity was the prevailing social norm. Whatever their practices, everyone knew what the standard was: married people were to have sex only with their spouses; the unmarried were to abstain” (p.3). Quickly conceding the fact that men and women violated these norms with some frequency, Rodes argues that the cultural mythology of chastity “afforded a certain amount of protection against both sexual harassment and date rape . . . In or out of the workplace, a sexual overture that bypassed the dating conventions was commonly regarded as an insult not only by the person addressed but also by everyone who learned of it. And within the conventions, it was not too difficult to avoid the crossed signals that often presage date rape” (p.6). Setting aside the troublesome implication that date rape victims invite sexual violence because of “mixed signals,” a move that blames the victim rather than the perpetrator, Rodes fails to provide any evidence for this empirical and causal claim, settling instead for personal observations, such as “I suspect that sexual irregularities were somewhat less common than they are today” (p.16).  Rodes questions Alfred Kinsey’s findings, but this alone does not validate Rodes’ personal observations and memories. Thus, through a romanticization of 1950s morality, Rodes asks us to accept the proposition that legally-sanctioned chastity would lessen the occurrence of sexual violence and immoral behaviors such as divorce and the birth of children out of wedlock. Rodes’ personal nostalgia for the family values of the 1950s may have a particularly strong suasory appeal to cultural (and legal) conservatives threatened by the diminution of their cultural hegemony. However, as an academic argument, Rodes’ causal claims between the value of chastity and social order and health are difficult to accept given the numerous historically-based studies that dispute the empirical truth of this cultural mythology (for two of the best examples of this work, see Coontz, 1992; Meyerowitz, 1994).     

To create a case for the return to chastity, Rodes answers four lines of legal critique that he credits with lessening the law’s ability to regulate chastity. I will present them in the order they are presented. According to Rodes, the first line of legal thought that devalues chastity is instrumentalism, or the cost-benefit analysis of enforcing chastity. Rodes quickly dispenses with this critique as he is less interested in measuring the efficacy of the law by the number of prosecutions, opting instead to understand the law as a moral code that guides and constrains behavior. As he states, “even if we cannot abolish a given immoral practice, we can hinder it in a number of different ways, and often do so” (p.107). The issue of state-sanctioned morality surfaces again in the second line of critique, libertarianism. Rejecting the idea that the state must remain neutral with regard to issues of [*521] morality, Rodes underscores the fact that both John Stuart Mill and Herbert Lionel Adolphus Hart, important touchstone for libertarian thought, can be generously read to support the kind of coercion envisioned by a return to chastity. Free speech, a cousin of libertarianism and the third line of critique, suggests that people ought to be able to express themselves as they see fit especially with regards to mass-mediated depictions of sex. Rodes dispatches this claim with the argument that sexual expression is different because “sex is unique among the human experiences, and the response to material with sexual content is unique among human response.” Thus, unlike other forms of expression, sexually-suggestive material should be more closely regulated to prevent social depravity. Finally, Rodes addresses the feminist critique of chastity which he characterizes as “bitter” (p.29). Reducing legal feminisms to a unified and singular community that ignores the diversity of feminisms, Rodes claims that the critique of double-standards means that “we can set lower standards for women or we can set higher standards for men.

” He continues on, “A good many feminists,” an assertion for which he provides no citation, “seem to have chosen the former alternative. I follow a good moral tradition in choosing the latter” (p.111).

In the final section, Rodes suggests a number of reforms that would rejuvenate the legal investment in chastity. These include limiting privacy rights to those things performed in private (meaning the home); criminalizing “fornication, adultery, and sodomy in every case,” which Rodes assures us are meant more as moral deterrents rather than prosecutable crimes because “as long as prosecutors are accountable to the electorate, they are unlikely to engage in a wholesale attack on illicit sex” (p.120); narrowing the grounds for no-fault divorces; prohibiting same-sex marriages along with civil unions and domestic partnership; and limiting obscenity. As for the last suggestions, Rodes argues that the “unchaste have no right to equal access to the social ambiance, no right to compete on equal terms in the marketplace of ideas” because they “like racists” and “Communists,” among others, “are entitled to free speech, but they have no right to insist that the society into which they introduce their speech must be one whose official organs are neutral as between them and their opponents” (p.133). According to Rodes, the totality of these reforms would strengthen the moral bonds of our culture and thus reduce the chances for sexual violence, harassment, and prevent the collapse of heterosexual civil marriage as a foundation of our culture.

In the end, Rodes’ reliance on sexual shame as a deterrent to sexual activity is wholly unpersuasive*and, to be honest, I am not sure that his goal is to persuade as much as it is to strengthen the beliefs of those predisposed to agree with him from outset. The book adopts a harsh tone toward anyone who does not already agree with him, the evidence in favor of the cultural effectivities of chastity is anecdotal, and Rodes’ research is in many cases outdated and thus fails to engage current debates about issues such as feminism, sexual assault, and harassment. Even more [*522] problematic, in the first few pages, Rodes admits that the cultural ideal of chastity did not prevent sex or sexual aggression. Thus, it is not altogether clear why sexual shaming would be any more effective today than it was in the 1950s. Finally, Rodes fails to engage any scholars writing in sexuality studies; whether it is an accidental oversight or a dismissal of this branch of scholarly inquiry, this omission is a notable one. While many of these scholars are not writing in legal journals, the regulation of sexuality and the cultural effectivities of sexual shame are interdisciplinary discussions that complicate and trouble Rodes’ conclusions*namely that sexual shaming will positively benefit everyone. They remind us that already vulnerable populations (teenagers and gays/lesbians/bisexuals/transpeople) are most likely to be the ones who are scapegoated and threatened, often physically, by those who see themselves as the enforcers of sexual morality (Sedgwick, 1993; Warner, 1999). Insulation from these critiques of shame allows Rodes to assert that sexual shame benefits all of us. However, shame is never spread evenly among a citizenry, and we need to ask whether the legal cure is worse than the cultural illness. It may be even more wise to ask a more fundamental question such as “Is there really a sexual crisis that must be legally managed by a return to chastity and sexual shaming?”  Upon reading this book, one that trades more in cu ltural nostalgia than in empirical data, I find it difficult to accept either the premise that we need to desexualize the public sphere or that a legal agenda tied to chastity’s return (or, at least its mythical return) would necessarily create a world with less rape, sexual harassment, or unwanted pregnancies.

Finally, if one is interested in mining this book for its history of chastity, there are many useful connections drawn between a number of disparate and seemingly independent cultural formations. For those interested in this line of Rodes’ argument, I would suggest reading the law review version listed below*the book version has only minor changes consisting primarily of updated footnotes to reflect changes in case law.

REFERENCES:

Coontz, Stephanie. 1992. The Way We Never Were: American Families and the Nostalgia Trap. New York: Basic Books. 

Meyerowitz, Joanne (ed.). 1994. Not June Cleaver: Women and Gender in Postwar America, 1945-1960 (Critical Perspectives on the Past). Philadelphia: Temple University Press.

Rodes, Jr. Robert. 2001. “On Law and Chastity.” 76 NOTRE DAME LAW REVIEW 643-739.

Sedgwick, Eve Kosofsky. 1993. “Queer Performativity: Henry James’s the Art of the Novel.” 1 GLQ 1-16.

Warner, Michael. 2000. The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life. Cambridge, Mass.: Harvard University Press.

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© Copyright 2007 by the author, Isaac West.

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Law And Public Policy: A Socioeconomic Approach by Lynne L. Dallas (Carolina Academic Press) provides rich course materials that permit students to explore, in a variety of contexts, the relationship between law and economic/social processes. It comments on neoclassical economics and draws on diverse economic approaches and other social sciences, such as psychology, sociology, anthropology, and political science, for the tools of public policy analysis. It offers students a values-conscious approach to public policy that is designed to take into account the power implications and distributional effects of laws and stresses the importance to effective regulation of attention to historical context, philosophical beliefs, culture, existing institutions, working rules and sources of power.

Each chapter of the book contains social science and legal materials that provide the basis for vigorous student inquiry and discussion. Law and Public Policy begins with background chapters on law and cognitive psychology, economic fairness and human well-being, fairness and legal socialization, culture and norms, and cooperation and trust. It then addresses important public policy areas in which markets are viewed as the nexus of law and economic/social processes. The book provides extensive notes to the cited literature with author and subject indices, but no bibliography as such. Intended to be the primary text for law school courses and seminars on law and socio-economics and existing courses on law and economics, Law and Public Policy is also designed for courses and seminars on law and the social sciences and for pre-law programs.

Excerpt: Students are not being exposed in a systematic way to alternative analyses of laws. From a positive perspective, they are aware of efficiency and rent-seeking explanations for the law, but are unaware of explanations that rely on norms, notions of fairness or the limitations of human cognition. Some students still confront professors who ridicule them for being concerned about fairness, with the dogmatic statement that law is not about fairness.

In addition, students are not aware of developments in behavioral psychology. This shortcoming is particularly troubling for the prescriptive analysis of laws. For example, in the criminal area, increasing the penalties and the probabilities of detection suggested by the rational actor deterrence model to discourage crime is not necessarily the most effective means for decreasing crimes flowing from drug addiction. In securities law, regulators need to be aware in mandating disclosures that the consequences of disclosures depend not only on the content of disclosures, but also on the form in which disclosures are made. The same is true for required workplace safety warnings.

In addition, from a normative perspective, students are not taught to identify the normative premises and distributional consequences of the laws they study. In fact, I believe that students are encouraged to leave their ethical and moral beliefs at the door of the law school. They are not encouraged to ask the following questions: What are the "shoulds" or entitlements underlying the rules and legal systems under study? Who benefits? Who loses?

Although students are well versed in free market thinking, this perspective is tempered only by vague moral concerns that students are embarrassed to articulate for fear of sounding nonintellectual. They are not aware of the systematic critique of efficiency concepts as used by neoclassical economists or of the limitations of markets. In fact, they are not aware of the important argument that "free" markets do not and cannot exist because markets require a normative foundation of laws, institutions and norms, which restrict the choices of some as they expand the choices of others. An education should expose students to alternative concepts and modes of analysis, which have the potential for raising the level of discourse and of coming to terms with important public policy issues.

For example, a law and socioeconomic (LSOC) inquiry would prompt students to ask a number of questions in evaluating laws and legal regulations. Consider health care. A LSOC analysis would raise distributional questions: Who is unable to afford health care and why? Norms would suggest important areas of inquiry: How do social norms influence health care choices? Moreover, the empirical findings of behavioral psychologists would take on importance: Do patients truly make informed choices? What forms of disclosures to patients are most effective? From a behavioral perspective, are resources best allocated to the prevention or the treatment of illnesses? How might

the preferences of persons change to alleviate health care problems? The LSOC approach would also be sensitive to the roles of social institutions in influencing individual and group behavior and would explore the roles of institutions, such as hospitals, insurance companies and government, in how health care resources are allocated. In addition, normative issues and the role of government in finding solutions would be explicitly addressed: What kind of health care system do we want? And how might the government assist in providing such a system?

This textbook provides rich course materials that permit students to explore in a variety of contexts the interrelationships between law and economic/social processes. It critiques neoclassical economics and draws on diverse economic approaches and other social sciences, such as psychology, sociology, anthropology and political science, for the tools of public policy analysis. It offers students a values-based approach to public policy that is designed to take into account the power implications and distributional effects of laws, and stresses the importance to effective regulation of attention to historical context, philosophical beliefs, culture, existing institutions, working rules and sources of power. Each chapter of the book contains social science and legal materials that provide the basis for vigorous student inquiry and discussion.

This textbook contains an introductory chapter that compares LSOC and law and neoclassical economics. It then follows with background chapters on law and cognitive psychology, economic fairness and well-being, fairness and legal socialization, culture and norms, and cooperation and trust. The textbook then addresses important public policy areas in which markets are viewed as the nexus of law and economic/social processes. These chapters include chapters on ethics and markets that consider discrimination and the issues surrounding markets for babies and surrogate mothers; a chapter on families and markets that explores the interrelationships between laws and changing norms in the workplace and within families; a chapter on corporations and markets that considers corporate governance and corporate social responsibility issues; a chapter on global markets that suggests a revisionist approach to globalization in its discussion of relevant legal and economic issues; and a chapter on emerging market economies. I have written extensive notes in each chapter that provide information and questions that can serve as the basis for class discussions.

Religion, Law, and Freedom: A Global Perspective edited by Joel Thierstein, Yahya R. Kamalipour, Cees J. Hameling (Praeger) introduces readers to diverse perspectives on the interplay of religion, law, and communications freedom in different cultures around the world. Through discussion and analysis of the religious mores and cultural values that a nation adheres to, a greater understanding of that nation, its laws, and its freedoms can be cultivated. Rather than suggesting that harmony can be achieved without conflict, the essays in this volume seek to present the reader with a variety of perspectives from which to view and understand the relationships among religion, law and freedom in various cultures. This multifaceted analysis, therefore, helps readers draw their own conclusions as to the best way to resolve cultural conflict brought about by the growing global community.

Legal Memories and Amnesias in America's Rhetorical Culture by Marouf Hasian Jr. (Polemics Series: Westview) critically examines the rhetoric of law--specifically, the shifting lines between the notions of liberty and license. Hasian, Jr. explores how such issues as immigration, labor, national identity, race, and genetics have caused society to change how it thinks about, and uses, laws.

 Legal Memories and Amnesias in America's Rhetorical Culture critically examines the rhetoric of lawspecifically, the shifting lines between the notions of liberty and license. Hasian explores how issues such as immigration, labor, national identity, race, and genetics have caused society to change how it thinks about, and uses, laws.

The author builds on critical race theory, feminist studies of the law, and critical legal studies, and he uses a case study framework that covers topics such as Sarah Roberts and the separate but equal doctrine, John Brown's enactment of natural law at Harper's Ferry, Typhoid Mary Mallon, the Nuremberg Trials, Susan Smith, and Rosewood. All of the aforementioned are tied together by an introduction that clearly delineates the basic theoretical stance of the book. Without a doubt, the subject of this book is provocative, timely, and timeless.

Excerpt:

Throughout this book, I have consistently defended the position that legal studies needs to broaden its horizons to provide theories and practices that simultaneously deconstruct the rhetoric of the empowered while helping to find a space for the marginalized to speak. In each of the previous chapters, I have grappled with the difficulties that come from defending what is considered to be "extrajudicial" material, the vernacular rhetoric that is usually not thought of as part of the substance of the law. Although each chapter highlights different units of analysis (John Brown on "character," Rosewood on memory, and so on), they share a common perspective that refuses to privilege the propositional logic that exists in orthodox studies of "rule of law." Each chapter has helped me defend the following contentious claims about a "critical legal rhetoric":

1. An exclusive focus on legal formalism presents a picture of logical coherence that hides the selectivity, ambiguity, and partiality of any apparently settled "rule of law." The chapter on Sarah Roberts shows some of the genealogical origins of the mystical "separate but equal" doctrine.
2. Empowered communities have much to gain from denying the rhetorical dimensions of law because by doing so they maintain the hegemony of lawyers and judges. Valorizing the "precedents" of the past means preserving the power and memories of those who have the authority to interpret those decisions. This was especially clear in the cases surrounding the Nuremberg trials and the Rosewood hearings.
3. Legal terms and theories are polysemic and polyvalent‑they have many plausible interpretations and values attached to them. The chapters on John Brown and Leo Frank showed how many audiences are involved in the cocreation of ideographic notions of "natural law," "justice," and "fairness." These are not just abstract terms but evocative words reflecting the feelings of communities that infuse those words with meaning.
4. Critical legal studies should involve more than the study of "precedents." The chapters on John Brown, Nuremberg, and Rosewood showed how supposedly "extrajudicial" factors influenced the trajectory of certain legal theories and principles.
5. Critical legal rhetorics have both deconstructive and reconstructive moments.

We need research that skeptically critiques elite texts while simultaneously pointing out the constructive arguments advanced by those who speak in a "vernacular" voice.

In this final chapter, I will extend these arguments by providing a few heuristic suggestions of where scholars might want to go in future investigations of legal rhetoric. Again, I am not arguing for an abandonment of orthodox studies of judicial opinions or legislative actions--I am arguing that these artifacts are just some of the items that are involved in the formation of "rules of law." I will concentrate on three exciting new directions that critical studies could take--visual rhetoric, postcolonial studies, and the politics of geographic space.

The Cultural Study of Law: Reconstructing Legal Scholarship by Paul W. Kahn (University of Chicago Press) Belief in the rule of law characterizes our society, our political order, and even our identity as citizens. Yet despite the importance of this phenomenon, those who study culture have failed to focus on the law. In this highly original work, Paul Kahn provides the first full examination of what it means to conduct a modern intellectual inquiry into the culture of law. He explains the shortcomings of current legal scholarship and, more important, charts the way for the development of an entirely new intellectual discipline of law, one that approaches law as a way of life rather than a set of rules. The Cultural Study of Law is the first full examination of what it means to conduct a modern intellectual inquiry into the culture of law. Charting the way for the development of a new intellectual discipline, Paul Kahn advocates an approach that stands outside law's normative framework and looks at law as a way of life rather than a set of rules. To conduct a genuine study of our legal culture, we must step outside the boundaries of legal practice, forgo the ambition of reform, and instead interpret the founding myths and necessary beliefs that constitute the rule of law. Drawing on philosophers from Plato to Foucault and cultural anthropologists and historians such as Clifford Geertz and Perry Miller, Kahn outlines the conceptual tools necessary for such an inquiry. He analyzes the concepts of time, space, citizen, judge, sovereignty, and theory within the culture of law's rule and goes on to consider the methodological problems entailed in stripping the study of law of its reformist ambitions.

Kahn argues that legal scholars, despite the appearance of some sophisticated theory in modern legal scholarship, are bound to the idea of improving the law through reform. The state of current legal scholarship can be compared to the study of religion around the turn of the century, when it was a part of the practice of religion and not a distinct intellectual discipline as it is today. To conduct a genuine study of our legal culture, we must step outside the boundaries of our legal system, abandon the ambition of reform, and instead interpret the beliefs and practices that constitute the rule of law. Kahn outlines the conceptual tools and methodology necessary for such an inquiry. Drawing on modern cultural studies, he analyzes the concepts of time, space, citizen, judge, sovereignty, and theory within the culture of the rule of law.

Wide ranging and eloquently written, The Cultural Study of Law offers an unprecedented investigation of one of our deepest, yet least explored, cultural commitments.

The Government Vs. Erotica: The Siege of Adam & Eve by Philip D. Harvey (Prometheus) In 1986, a small mail‑order company was invaded by thirty‑seven armed law enforcement agents who instantly shut down all operations, herded the employees into a warehouse, and systematically interrogated everyone, allowing them to leave only after subpoenas were distributed. Although this episode may sound like a police action in the former East Germany, it was in fact implemented by the U.S. Department of Justice, then headed by Edwin Meese, against Adam & Eve, a North Carolina business that sells contraceptives, sex toys, and adult videos. Now, the company's owner, Phil Harvey, offers a firsthand account of this David‑and-Goliath battle. The Government vs. Erotica goes to the heart of our national debate over First Amendment freedom of expression versus government attempts to limit the availability of erotic materials.

Harvey's personal memoir of an eight-year struggle‑eventually victorious‑against the strong‑arm tactics of the Justice Department raises important questions about federal abuse of power, the slow erosion of First Amendment rights through government intimidation, the effects of pornography, the archaic laws that attempt to regulate sexuality between consenting adults, the class‑war implications of this battle, and the relationship between sex and religion.

The Government Vs. Erotica provides a detailed account of the inner workings of the legal process and of the feisty owners and managers of a small company determined to stand up for their rights. This controlled, yet suspenseful and humorous story is a wake‑up call for all who would be complacent about their First Amendment rights.

The Limits of the Rule of Law in China edited by Karen Turner-Gottschang, James V. Feinerman, and R. Kent Guy (Asian Law Series, 14: University Washington Press)

Contents:
Foreword by Wejen Chang
Acknowledgments
Introduction: The Problem of Paradigms by Karen G. Turner
1. Conceptions and Receptions of Legality: Understanding the Complexity of Law Reform in Modern China by Yuanyuan Shen
2. Law, Law, What Law? Why Western Scholars of China Have Not Had More to Say about Its Law by William P. Alford
3. Using the Past to Make a Case for the Rule of Law by Jonathan K. Ocko
4. Rule of Man and the Rule of Law in China: Punishing Provincial Governors during the Qing by R. Kent Guy
5. Collective Responsibility in Qing Criminal Law by Joanna Waley-Cohen
6. True Confessions? Chinese Confessions Then and Now by Alison W. Conner
7. Law and Discretion in Contemporary Chinese Courts by Margaret Y. K. Woo
8. Equality and Justice in Official and Popular Views about Civil Obligations: China and Taiwan by Pitman B. Potter
9. Language and Law: Sources of Systemic Vagueness and Ambiguous Authority in Chinese Statutory Language by Claudia Ross, Lester Ross
10. The Future of Federalism in China by Tahirih V. Lee
11. The Rule of Law Imposed from Outside: China's Foreign-Oriented Legal Regime since 1978 by James V. Feinerman
Epilogue: The Deep Roots of Resistance to Law Codes and Lawyers in China by Jack L. Dull
Contributors
Index

Death, Dissection and the Destitute by Ruth Richardson (University of Chicago Press) A penetrating book that reveals the intricacies and implications of the Anatomy Act of 1832, Death, Dissection and the Destitute opens rich prospects in history and the history of science. The new afterword deftly exposes the relation between 19th century practice and issues we confront today in organ transplants and the ownership and use of tissue removed during surgery or at autopsy.

"Richardson presents her evidence with vigor and acumen.... In resurrecting the Anatomy Act from historical obscurity, Ruth Richardson has cast unexpected light on the importance of the body, dead or alive, in the workings of society." -Elizabeth Hollander, Village Voice

"This is a bloodcurdling tale of mystery with grand guignol overtones and a plot as gripping as its solution is grim and unexpected."- Weekend Telegraph

"Carefully researched, and very readable.... [T]he issues Richardson raises are contemporary. The need for a health service which takes no account of the class of the patient is just as important today as it was then." - Jennie Karrach, New Scientist

"Ruth Richardson's study of the events leading up to the passing of the Anatomy Act of 1832 is a splendid exploration of an episode to which many historians might never have given a second thought.... Richardson weaves a convincing argument from an abundance of varied sources . . . and tells a fine tale worthy at times of a good thriller."- Christopher Lawrence, British Journal for the History of Science

REPRODUCTIVE FREEDOM: in the Context of International Human Rights and Humanitarian Law by Maja Kirilova Eriksson The present study clarifies that there can be little doubt that enjoyment of reproductive freedom is a sine qua non condition for the attainment of substantial equality between women and men. And yet very few human rights and humanitarian law issues have for such a long time received as little attention, at the global, regional and national level, as reproductive freedom has.

REPRODUCTIVE FREEDOM is the first book to provide a comprehensive investigation of reproductive freedom in the light of contemporary international law. The author discusses reproductive freedom in the context of feminist legal theory, international human rights and humanitarian law. This holistic approach makes the book unique and enhances its value as a comprehensive resource on the most challenging and contentious issues of our time, i.e., legal abortion, medically assisted reproduction, surrogate motherhood, forced pregnancy during armed conflicts, and many others. The author's aim is to advance current debates about gender equality and reproductive rights, and to deepen the analysis of the legal concepts involved. In surveying the international commitment to women's rights and examining critically the way in which international global and regional human rights bodies and ad hoc international tribunals deal with issues pertaining to reproductive freedom and sexual violence, this volume makes clear to what extent contemporary international law norms may be used as a tool for change, and how they need to be adapted to meet the special needs of girls and women worldwide. Finally, the book explores what improvements are necessary to prevent and protect adolescents, women and men, against violation of their reproductive freedom.

A general conclusion reached in REPRODUCTIVE FREEDOM is that the essence of the concept has not been grasped satisfactorily and in a broad manner by the international organs, which have the authority to interpret the contours of human rights and humanitarian law norms. On the contrary, the definition of several key terms, which form part of it, has remained rigid and narrow. There continues, in addition, to exist "a widespread failure to consider gender as a factor in defining the substantive content" of human rights such as, for example, the right to life, the right to health and the prohibition of torture. From the very recent case law of international organs as well as UN reports (produced, e.g., by the Special Rapporteur on Violence against Women, the Special Rapporteur on Systematic Rape during Periods of Armed Conflict and the Special Rapporteur on Traditional Practices affecting the Health of Women and Children), which I have discussed earlier, it would appear nevertheless that various human rights organs (mainly at the regional level) and special investigatory mechanisms have began to consider, e.g., rape within the legal construction of torture? Some of the UN Reporters on country situations have, moreover, paid attention, albeit limited, to different forms of reproductive crimes, as, for example, in the country reports on Rwanda, the former Yugoslavia, Myanmar and Sudan.

Violence against women is one of the major issues that women's human rights advocates have used to demonstrate how human rights law has excluded women. The present study has illustrated that women's experiences have increasingly begun to be included in the definitions of several international human rights and humanitarian law norms. The jurisprudence of the regional human rights courts as well as of the ad hoc Tribunals supports this proposition. Rape and other forms of sexual violence are being considered as crimes against humanity, grave breaches of the 1949 Geneva Conventions, genocide, war crimes and as violations of common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocols 3 The Akayesu judgment of the ad hoc Tribunal for Rwanda is groundbreaking in the context of international condemnation and persecution of gender crimes. The Prosecutor for the ad hoc Tribunals has, in addition, issued indictments, which regarded rape as both a war crime and crime against humanity. Another example of a recent date and which is crucial for the advancement of reproductive freedom, is the unprecedented inclusion of rape, forced pregnancy and enforced sterilization within the notion of war crimes as well as of crimes against humanity in the ICC Statute. In addition, violence against women (including sexual violence) has been recognized as a form of discrimination and as comprised within the ambit of the Women's Convention as well as of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.

Despite the above and other encouraging trends within international law identified in the present inquiry, this author feels that the purposeful work for a more open, flexible and creative interpretation and application of human rights and humanitarian law norms has to continue.

REPRODUCTIVE FREEDOM shows that the prevailing understanding of some of the core elements of reproductive freedom, i.e., the right to family planning and the right to found a family in international treaty law, does not correspond to, and does not reflect, the latest developments in science (especially in biomedicine') and in social realities. Profound social changes demand matching changes in law and practice in order to uphold its legitimacy and to keep it viable. The risk is otherwise overwhelming that a static and from social realities abstracted law becomes a dead letter. International monitoring bodies continue, however, to refrain from taking a clear standpoint on some aspects of the phenomenon under consideration such as the abortion issue, access to new techniques for assisted reproduction as well as certain issues of gender-based violence. One of the reasons probably is that these subject matters are ethically and morally difficult to decide upon, but also that human rights of special interest for women and substantial gender equality until recently have not been a high priority within the international community. Since infertility rates are increasing, especially in the industrialized world, access to alternative reproductive technologies has become more important and individuals increasingly consider it as legitimate legal claim. The intensified mobility of the modern citizen over nation borders makes domestic legal solutions to the above mentioned, and several other questions of relevance to our subject matter, insufficient. International human rights law has not yet met this new challenge in a satisfactory manner. REPRODUCTIVE FREEDOM argues that placing family planning in a broader reproductive health framework and in the context of gender equality, as well as the use of among others the teleological method of interpretation of the relevant treaty provisions, may forward its expansive reading. In Eriksson’s view a dynamic interpretation of the provisions in question might require, if that can improve the position of the individual concerned, (i.e., that the interpretation makes the provisions more effective and useful from the point of view of the individual), that other treaties and the most recent declaratory documents adopted by the international community be consulted and relied upon. In that way a greater coherence in the human rights system can be secured. In other words, the recent endorsement of the concept "reproductive health" in international law necessitates a holistic, comprehensive and visionary approach to existing law. One method in the determination of the content of a specific norm under scrutiny would be to take more frequently into account the interplay of several provisions within and among various human rights instruments. In addition to that, the result-oriented models of gender equality can be used as a justification and support for inventive interpretation of law, e.g., the recognition of an emerging right to legal and safe abortion in international law.

At the same time one is aware of the fact that the case law of the universal, as well as of regional supervisory human rights bodies, is based on individual complaints. Thus, these organs cannot tackle problems of their own motion, which they consider raise issues under the relevant conventions. Education has much to contribute in this regard. International procedures have remained beyond the reach of many women because of the deficient information about human rights obligations of the state as well as non-recognition of the jurisdiction of the treaty bodies mainly by states with poor human rights record. That girls and women should know about their human rights is, therefore, an essential prerequisite for them to be able to demand their recognition and respect. A further recommendation made by Andrew Byrnes is to build better linkages between national institutions (including NGOs) and organizations working at the international level in order to improve the dissemination of information about international procedures." The UN's Plan of Action for the UN Decade for Human Rights Education (1995-2004) supports these proposals.

Of critical importance for the reformation, reconceptualization and extension of international law norms so that they better respond to and incorporate the specific needs and concerns of women is having an equality of representation of women in all international law-making forums and implementing bodies. On the basis of the facts presented in this study, it can be safely established that women continue, largely to be underrepresented in the process of the formation of international law as well as in its application. Few women, with only one exception (CEDAW), have been appointed to strategically important positions which would allow them to influence the interpretation of, and the elaboration upon, the meaning of international law norms in a gender-sensitive manner. For obvious reasons this situation cannot be tolerated any longer and it is logical to recommend that the proportion of women sitting on treaty bodies, tribunals, investigating mechanisms and in official human rights and humanitarian agencies be increased whenever there are vacancies on them. The presence of a greater number of women on the international supervisory bodies can make an important difference and can have positive effects on the outcome of the efforts to advance women's issues globally, regionally and nationally and to contribute to the elimination of gender discrimination." Seen against this background the appointment of Mary Robinson in 1997 as the UN High Commissioner for Human Rights, and in 1998 of Louise Frechette as the very first vice Secretary-General of the UN, and of Gro Harlem as the Director of WHO, is an encouraging trend.

Several authors, among them Professor Charlesworth, have pointed to the variety of techniques that can be used for the purpose of enhancing de jure as well as de facto equality. Expert committees can, e.g., issue general comments "to broaden the traditionally androcentric scope of rights" and this is more likely to be done with a better gender balanced composition of the international bodies. More importantly, according to the same scholar "redefining the traditional scope of international human rights law so as to acknowledge the interests of women may lead international actors to pursue change that will allow for the reimagination of gender difference" and in my view hopefully to strengthening the conceptional as well as the institutional framework of international law so that substantial gender equality more easily can be achieved. We should also bear in mind that rigid and limited understanding of rights and freedoms leads to limited compliance and understanding of international obligations.

Finally, Eriksson recognizes the significance of the integrating of women's concerns in all human rights issues. Taking into account the reality we live in REPRODUCTIVE FREEDOM is supportive of the idea of building upon and using the existing human rights and humanitarian law framework while at the same time revising both branches of law from a woman's perspective and keeping in mind the limitations of the rights discourse." Other solutions should not be excluded of course, e.g., filling normative gaps with the elaboration of new substantive instruments such as, for example, the proposed additional protocol on equality between the sexes to the European Conventions as well as something I have already suggested, a universal convention on the prevention, punishment and eradication of violence against women including a comprehensive catalogue with definitions of among other things reproductive crimes.

THE MIRROR OF JUSTICE

Literary Reflections of Legal Crises

Theodore Ziolkowski

Princeton University Press

$47.50, cloth, 322 pages, notes, index

0-691-02683-1

This book revolves around seven major literary works that reflect epoch-making upheavals in the history of law. In each case the literary work is related to its contemporary legal crisis in a conjunction justified whenever possible by biographical evidence concerning its author. The move from a prelegal to a legal society in The Eumenides introduces themes in agrarian Greece. The Christianization of Germanic law in Njal’s Saga shows how vendetta was ameliorated. The disenchantment with medieval customary law in Reynard the Fox is well drawn from Goethe. The reception of Roman law in a variety of Renaissance texts offers a panorama of cultural adaptations to property. The conflict between law and equity in Antigone and The Merchant of Venice shows competing forms of natural right, The eighteenth-century codification controversy in the works of Kleist shows some of the extensions of Napoleonic codes. The modern debate between "pure" and "free" law in Kafka’s The Trial and other fin-de-siscle works, and the effects of totalitarianism, the theory of universal guilt, and anarchism in the twentieth century, round up this impressive survey.

Using principles from the anthropological theory of legal evolution, the book locates the works in their legal contexts and traces through them the gradual dissociation over the centuries of law and morality. It thereby associates and illuminates these literary works from an original point of view and contributes a new dimension to the study of literature and law.

In contrast to prevailing adherents of Law-and-Literature, this book professes Literature-and-Law, in which the emphasis is historical rather than theoretical, substantive

rather than rhetorical, and literary rather than legal. Instead of adducing the literary work to illustrate debates about modern law, this book consults the history of law as an essential aid to the understanding of the literary text and its conflicts.

Ziokowski entertains and informs with his rich harvest of erudition. We are given essentially a new way of coming to terms with the law as reflected in literature. Law as lived through literature is reclaimed as a universal concern of humans beings living in society. This is an impressive piece of interdisciplinary scholarship.

Theodore Ziolkowski is Class of 1900 Professor of German and Comparative Literature at Princeton University. He has published nine previous books with Princeton University Press, including Fictional Transfiguration of Jesus, German Romanticism and Its Institutions, and Disenchanted Images : A Literary Iconology.

 

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