Imagining New Legalities: Privacy and Its Possibilities in the 21st Century

Imagining New Legalities: Privacy and Its Possibilities in the 21st Century

by Austin Sarat

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Imagining New Legalities reminds us that examining the right to privacy and the public/private distinction is an important way of mapping the forms and limits of power that can legitimately be exercised by collective bodies over individuals and by governments over their citizens. This book does not seek to provide a comprehensive overview of threats to


Imagining New Legalities reminds us that examining the right to privacy and the public/private distinction is an important way of mapping the forms and limits of power that can legitimately be exercised by collective bodies over individuals and by governments over their citizens. This book does not seek to provide a comprehensive overview of threats to privacy and rejoinders to them. Instead it considers several different conceptions of privacy and provides examples of legal inventiveness in confronting some contemporary challenges to the public/private distinction.

It provides a context for that consideration by surveying the meanings of privacy in three domains—-the first, involving intimacy and intimate relations; the second, implicating criminal procedure, in particular, the 4th amendment; and the third, addressing control of information in the digital age. The first two provide examples of what are taken to be classic breaches of the public/private distinction, namely instances when government intrudes in an area claimed to be private. The third has to do with voluntary circulation of information and the question of who gets to control what happens to and with that information.

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From the Publisher
"Imagining New Legalities advances our thinking about powerful political and cultural challenges embedded in our efforts to improve our understanding of the law. This is a truly thoughtful, timely, and well-grounded collection of essays."—William Lyons, University of Akron

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Stanford University Press
Publication date:
Amherst Series in Law, Jurisprudence, and Social Thought Series
Edition description:
New Edition
Product dimensions:
6.00(w) x 9.20(h) x 0.70(d)

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Imagining New Legalities

Privacy and Its Possibilities in the 21st Century

Stanford University Press

Copyright © 2012 Board of Trustees of the Leland Stanford Junior University
All right reserved.

ISBN: 978-0-8047-7704-9

Chapter One

Disenchanting the Public/Private Distinction


For women the measure of the intimacy has been the measure of the oppression. This is why feminism has had to explode the private. Catharine MacKinnon

The legal couching ... of Bowers v. Hardwick as an issue ... a Constitutional right to privacy, and the liberal focus in the aftermath of that decision on the image of the bedroom invaded by policemen ... as though political empowerment were a matter of getting the cops back on the street where they belong and sexuality back into the impermeable space where it belongs are among other things extensions of, and testimony to the power of, the image of the closet. Eve Kosofsky Sedgwick

We affirm that the natural family is the ideal, optimal, true family system. ... We affirm the marital union to be the authentic sexual bond, the only one open to the natural and responsible creation of new life.... We believe wholeheartedly in women's rights. Above all, we believe in rights that recognize women's unique gifts of pregnancy, birthing, and breastfeeding. The goal of androgyny, the effort to eliminate real difference between women and men, does every bit as much violence to human nature and human rights as the old efforts by the communists to create "Soviet Man" and by the Nazis to create "Aryan Man." The Natural Family: A Manifesto

The "natural family" has enjoyed an unlikely resurgence in the early years of the twenty-first century. In contexts from abortion to same-sex marriage, proponents of the nuclear, marital, gender-bifurcated family have asserted the ontological and moral priority of a family configuration that has not been the sociological norm for decades, if indeed it ever was. These advocates, moreover, have taken the offensive, claiming to be embattled by forces or developments that may not appear, to many observers, to target them at all. The protesters who gather on street corners waving signs reading "SAVE OUR FAMILY" see the threat as emanating from same-sex marriage, or from the confluence of familial coercion, medical misinformation, and legal doctrine that lead otherwise nurturant women to take the lives of their unborn children.

In one sense, these activists are not wrong about the sources of threat. Traditional notions of the family, and the domestic private that has been its site and refuge, have come under fire from gay, lesbian, and queer activists and from feminist advocacy. But the specific rights claimed by gay couples or pregnant women have not, in and of themselves, created the vulnerability that proponents of the "natural family" perceive. Gender and sexuality activists have produced concrete social and legal changes, to be sure. But their more unsettling contribution is to have begun the process of disenchanting the public/private distinction—that is, to have disrupted or deconstructed its status as an intact, coherent "system of ethical meaning (one that includes supernatural powers) that we have 'merely' to discover."

In Part I, I explain how gender and sexuality advocacy has produced this effect. I focus primarily on the private, where this deconstruction has encompassed a denial of its natural or divine provenance, a pluralization of its ostensibly uniform configuration, and disruption of its sentimentalized characterization. But I note that this activism has also complicated the distinction and separation of the public from the private. The effects of this advocacy in disenchanting, though not fully transforming, the domestic private help to explain the urgency and the rhetoric of the recent response, which I explore in Part II. The efforts at "re-enchantment" reflected in the "natural family" movement are unlikely to succeed, except perhaps among a modest subgroup that never assimilated the changes described in Part I. But these efforts challenge us to think more clearly and explicitly about what it could mean to structure cultural life, and legal rules, around a more disenchanted notion of the public/private distinction. I frame this task in Part III.

Gender, Sexuality, and the Enchanted Private

Interrogating the Conventional Account

It is a commonplace that equality struggles over gender and sexuality have challenged the public/private distinction, both in law and in broader cultural understandings. Feminists, gay/lesbian, and queer theorists and activists have contested the permeability of the boundary, as well as long-standing assumptions about those who traverse it. Women—buttressed by Ruth Bader Ginsburg's challenges to the stereotypes of the "separate spheres"—have moved increasingly from the domestic private into the public sphere of market and political activity, resisting restriction to the roles of wife and mother. They have demanded that the state intervene in the domain of the family to address marital rape and spousal abuse. Gays and lesbians have moved into the public by a different trajectory: challenging their sequestration—by shame and by law-within the stigmatized private of the "closet," and confronting assumptions about the naturalness of heterosexuality. These conventional views, however, miss some of the most important effects that sexuality and gender advocacy have produced on the public/private distinction. They miss the challenge activists have posed to the enchantment of the distinction: to specific assumptions that have fueled the separation of the spheres, and the sentimentalization of gender bifurcation and heterosexual privilege.

The "private," as I explore it in this essay, has referenced a particular physical space: the home, specifically, of the heterosexual, reproductive family. The romance or "enchantment" of this site has revolved around several features that were understood to be central to its functioning. First, the private has been conceived as the site of certain predictable, salutary activities of intimacy: the care and rearing of children, (heterosexual) sexual intimacy, and the physical and emotional nurturance of all family members. The activities of the familial private were initially bound up with the "ideology of the separate spheres." According to this often-theologized account, nurturance and care-giving were expressions of a delicate, feminine essence that equipped women to dwell primarily in the private domain, while men, whose robust and rational characters enabled them to engage in politics or the market, pursued a life in the public. But even after feminists had called the strong version of this assumption into question, the domestic private was understood to be the setting that nurturance and sexual intimacy required for their performance. The private was also understood to be a domain characterized by distinctive motivations. Relations among the family members who occupied this sphere were animated by affective commitment—love, trust, and desire—rather than by the will to power or the rational furtherance of self-interest that infused life in the public sphere. Because the private offered a respite from such hostile or arms-length negotiations, it was often characterized as a "haven in a heartless world," a place to which family members could repair to recuperate from its stresses. Finally, the private was understood to be a domain that was autonomous. Not only were its emergence and configuration strongly naturalized: it was viewed as having emerged almost spontaneously to support the physical and emotional needs of the family. But the private was also viewed as insulated by a neat boundary that represented a determinate limit both on state power and on market rationality. This boundary honored the distinct character of the activities within it, and the humanity of those whose ostensible essence was expressed there. But the boundary also reflected aspirations for what lay outside: a limited state that did not appear arbitrarily, or insinuate itself surreptitiously, in the lives of its citizens; and a bounded market that was constrained in its capacity to commodify the more intimate dimensions of human lives.

These concrete features gave rise to several broader perceptions that fueled the enchantment of the private—the sense that it was an integrated set of arrangements ordained by nature or divine providence. The first was a sense of necessity to the dominant configuration of the private: its organization around the gender-bifurcated, heterosexual, reproductive family. This sense arose in part from its ascription to (gendered) human nature; it was also reinforced by a belief that the private emerged autonomously, rather than as the product of legal and cultural formation. If women and men performed these roles as an expression of their nature, there was little question of external formation or internal choice: a domain premised on these bifurcated essences would emerge as night follows the day. This inevitability entailed a kind of uniformity in the private, a similarity and a shared aspiration among the families it harbored. In addition, this notion of the private was strongly idealized, or sentimentalized. This aspect of the traditional private flowed from its presumed naturalness; but it also reflected a human desire for seamless belonging and encompassing care. In the following sections, I will describe the way each of these dimensions—both concrete and perceptual—came under pressure from feminist and lgbt/Q activism, resulting in a disenchanted stance toward the private, and toward the coherence of the public/private distinction.

Challenging the Enchanted Private

The Private as the Site of Predictable, Salutary Activities of Intimacy

The romance of the private has been grounded in part on figuring the home as the distinctive site of certain specific, valorized human activities. Human intimacy—whether the intimacy of the marital and sexual bond, or the intimacy of the nurturance between parent and child—has its home here. So do quotidian forms of sustenance, from the provision of food and shelter, to the care of the sick and the bolstering of the weary, that make human life possible. These activities take a predictable (naturalized) form: cross-sex intimacy, and reproductive nurturance, occurring within the nuclear family. Feminist and lgbt/Q advocacy has challenged the connection between the private and these specific, salutary forms of activity in several ways: first by critiquing the unequivocal valorization of these activities; second by pluralizing the forms in which activities of nurturance and intimacy take place in the private domain; and third by introducing versions of many of these "quintessentially" private activities into the public realm.

Feminists exposed the ways that both intimacy and nurturance could be potent vehicles for women's subordination. Dominance feminists such as Catharine MacKinnon demonstrated that sexuality could be the site of coercion as well as intimate reciprocity. Other feminists observed that conjugal partnership often entailed the submergence of the independent personhood of the wife—in fact if no longer in law. Unequal division of childrearing and household labor—often invisible both to society and to the couples involved—could burden women who also sought work in the public sphere, and could impoverish women when marriages ended in divorce.

Moreover, both feminist and lgbt activism called into question the traditional, putatively inevitable forms of these activities. Early feminist activism, such as Ginsburg's, challenged the notion of care-giving as the natural province of women. Having loosened the bonds of separate spheres ideology, women began to proliferate practices of coupling, childrearing, and care that diverged from traditional patterns. Feminists challenged the inevitability and valorization of the marital bond, as well as the reproductive imperative. Some oriented their lives toward work and satisfaction in the public, and began to marry later or not at all; others delayed childbirth, or remained childless. Single parenting also became a more prevalent practice.

The increased visibility of gay and lesbian couples further pluralized the conventional image of intimacy, and eased its gendered roles. Moreover, same-sex couples increasingly began to raise children, challenging the prevailing view of parenting as a heterosexual activity. In addition, care-giving that was organized across local gay communities, or among circles of friends, rather than within nuclear families, proved robust and reliable at the height of the AIDS crisis. These diverse patterns helped to reframe the private as a domain of variation and choice, rather than uniformity and inevitability.

A more dramatic challenge to the private as the zone of predictable, valorized activities of intimacy was the reproduction of many of these activities within the domain of the public. We can see this challenge most clearly in the movement of care-giving labor, and the emergence of new sexual cultures, into the public sphere. In a context where a growing majority of American women engaged in market work, and where programs from child welfare to public schooling reflected a state interest in the well-being of children, feminists such as Martha Fineman and Joan Williams asked why the state and the market did not take greater responsibility for the care and nurturance of young children. The state response to such challenges—perceptible though meager—tended to focus on parental leave, or childcare services for children living in poverty. Women's efforts to negotiate work/family not only triggered greater employer responsibility but also increased the presence and visibility of their offspring in public settings: sick children and children on school breaks became familiar features of many workplaces. The reproduction of care in the public context also extended beyond the nurturance of children. Market providers saw an opportunity to offer services, from laundry to the preparation of meals, that were once performed exclusively by women in the domestic private; and time-starved women (and men) began to snap them up. This meant a change not only in the site of services rendered, but in the visibility of nurturant functions-from family meals to homework sessions—in public, market venues.

The increasing movement of women into market work produced a second pattern that rendered porous the traditional boundary between the domains: the growing commodification of care work in the home. The work of some women in the homes of others is not new: the practice dates back to slavery, indentured servitude, and the employment by wealthy women of a range of cooks, maids, and governesses. But as more women began to perform market work, the practice extended to middle-class women, who often found it easier to employ other women than to demand that their husbands shoulder an equal share of care work. As women paid others, either within or outside the home for the care of their children, the cleaning of the family's clothes, or the cooking of the family's meals, feminists observed that this work—once understood as the ultimate and natural expression of maternal care—could be commodified. It was no longer predictably surrounded by a nimbus of mother love; it could be characterized as work, monetized, and performed for a wage, by people not linked by familial bonds to those for whom they labored. This insight also perpetuated the denaturalization of the domestic private, and underscored its emerging characterization as a realm of (market-related) choice.

Gender and sexuality activism also moved activities connected with sexual intimacy from the private into the public. For lgbt groups, this effort had its origins in the "closet": when gays and lesbians were denied a private that was valorized by mainstream culture, and insulated from state intervention, they developed practices of meeting, socializing, and coupling in quasi-public settings. These settings included bars and clubs that catered to an exclusively or primarily gay clientele, or informal contexts such as parks, docks, or public "tea rooms." Though the decision in Lawrence v. Texas led some advocates to focus on the creation of increasingly domestic sexual and familial lives, some sexuality theorists and advocates took a different tack.


Excerpted from Imagining New Legalities Copyright © 2012 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Lawrence Douglas is James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. Martha Merrill Umphrey is Professor of Law, Jurisprudence, and Social Thought at Amherst College.

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