The Common Law As a Terrain of Feminist Struggle
114 Northwestern University Law Review Online 160-168 (2019)
10 Pages Posted: 27 Nov 2019
Date Written: November 26, 2019
Many feminists have written off the common law because it is slow moving and tends to be conservative.It does not yield the kind of dramatic outcomes and reversals of precedent that federal or state constitutional cases do. Nevertheless, at the heart of it, the common law protects vital negative liberties which prevent the state from intruding into the lives of women. In engaging with the work of Professor Anita Bernstein's The Common Law Inside the Female Body, I focus on three specific points. First, I examine the scope of the common law’s protection to underscore the point that this protection is not uniformly available. It is predicated on legal personhood and by bracketing that threshold requirement, many people, mostly minorities, are left without recourse to the law. Second, I take up the uses and limits of property as an analogy to women’s bodies. I argue that property law is far less helpful when the violator is the state as opposed to a private actor. Finally, I suggest that there are important linkages that require further inquiry. Economic changes and imperialism had indelible effects on the common law. Thus, a purely legal examination of the United States’ experience with the common law misses how capitalism and imperialism shaped its ideas about property, family, and personhood.
Keywords: feminists, property law, Common Law, Anita Bernstein, women’s bodies
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