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The Common Law Inside the Female Body

  • Publication planned for: March 2019
  • availability: Available
  • format: Hardback
  • isbn: 9781107177819

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  • In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today's common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law - with a focus on crimes, contracts, torts, and property - and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons - women included.

    • Offers an analysis of politically contentious issues, including abortion, surrogacy, prostitution, and sexual assault, with the goal of widening what the law can achieve in furtherance of women's autonomy
    • Provides an explanation of why lawyers seeking gender progress from primary legal materials should start with the common law
    • Challenges the presumption that the common law and feminist jurisprudence are incompatible by identifying connections between the two systems that have always existed but have rarely been acknowledged
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    Reviews & endorsements

    'This amazingly comprehensive study of the core ideas and principles underlying the common law leads to some surprising and provocative conclusions. Bernstein makes a compelling argument that, read correctly, the common law clearly provides women the right to say 'no' to unwanted sex and unwanted pregnancy. Erudite and fascinating, steeped in legal history and philosophy and peppered with interesting statistics about injury, social practices, and everything else under the sun, Bernstein's work breathes new life into old legal doctrines with imagination, wit and a love of the law.' Martha Chamallas, Robert J. Lynn Chair in Law, Ohio State University

    'This provocative, controversial book makes the startling claim that the common law can be a useful tool for feminist lawyers. In this carefully and powerfully argued book, Bernstein challenges the assumption that common law reasoning and feminist analysis are at loggerheads. This important argument provides new legal tools for feminist scholars.' Jonathan Herring, Vice Dean of the University of Oxford

    'In this book, Bernstein offers an exciting and audacious reconstructive account: the applicability to women of the common law's commitment to negative liberty. Punchy, delightfully provocative and erudite, this book is a must read to conservatives, progressivists, jurists and feminists, who, like the book's main motto, can all share the bounty of The Common Law Inside the Female Body.' Tsachi Keren-Paz, Sheffield University

    'In this groundbreaking book, Anita Bernstein beautifully demonstrates that our understanding of the common law as benefiting men and harming women is deeply flawed. By revealing how the common law is a source of women's power and freedom, she invigorates feminist arguments with creativity and possibilities. This powerful book is a much-needed addition to the gender justice scholarship and first-year law school curriculum.' Solangel Maldonado, Eleanor Bontecou Professor of Law, Seton Hall University, New Jersey

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    Product details

    • Publication planned for: March 2019
    • format: Hardback
    • isbn: 9781107177819
    • length: 272 pages
    • dimensions: 236 x 157 x 19 mm
    • weight: 0.5kg
    • availability: Available
  • Table of Contents

    Introduction: what is the common law inside the female body?
    Part I. Condoned Self-Regard in the Common Law:
    1. Saying no to what we don't want
    2. Exceptions to condoned self-regard: prior voluntary conduct
    3. Woman too my say no to what they don't want
    Part II. What Follows:
    4. Unwanted penetration
    5. Unwanted pregnancy
    6. Challenges, prospects, gored oxen.

  • Author

    Anita Bernstein, Brooklyn Law School
    Anita Bernstein is Anita and Stuart Subotnick Professor of Law at Brooklyn Law School and a nationally recognized authority on tort law and feminist jurisprudence. Her awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a graduate of Queens College, whose political science department named her its Distinguished Alumna in 2014, and Yale Law School.

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