The Common Law Inside a Social Hierarchy: Power or Reason?

Abstract

Anita Bernstein argues that the common law gives women, too, the right to say no to what they do not want. She demonstrates that the common law is a far-reaching defense of condoned self-regard, a system that allows individuals to place their own interests above the interests of others, particularly when seeking to exclude others. She, therefore, places in the common law a right to protection from rape and a near-absolute right to expel a pregnancy. Bernstein reasons that women’s exclusion from the common law right to say no was a mistake produced by their absence from the judiciary. This review argues an alternative explanation for the gap between reality and faithful reasoning: the common law is an elegant tool in the pantheon of tools used to create and defend social, economic, and civic hierarchy. The common law, precisely because it is undemocratic, has been a useful instrument to test-drive rationalizations for the status quo, including the status quo of identity hierarchies.