Monday, September 15, 2014

Judith Baer, Ironic Freedom: Personal Choice, Public Policy, and the Paradox of Reform

Professor Judy Baer is the best feminist theorist most readers of Balkinization have never heard of.  Her works, most notably Our Lives Before the Law and The Constitutional and Legal Rights of Women (with Leslie Goldstein) are classics within political science, but have far less cache in the legal academy.  This is a shame.  Professor Baer is an acute critic of both liberalism and feminism.  Her works confront the challenges to both in ways that deserve a broad audience.  Ironic Freedom: Personal Choice, Public Policy, and the Paradox of Reform is another exceptional work that will challenge liberals and feminists inside and outside the classroom.

The central concern of Ironic Freedom is the way in which arguments that promise women and members of other historically subordinated groups greater freedom have the potential to generate new forms of subordination.  Repeatedly, legislative or judicial decisions that permit women to take formerly banned actions foster social practices that compel women to take those actions.  Within weeks after New York declared persons had the right to marry a person of the same sex, many businesses in that state announced they would no longer offer domestic partner benefits to same-sex couples who did not marry within a short period of time.  Affluent couples have pressured desperate poor women to have their baby in states where surrogate motherhood is legal  “May,” Professor Baer detailed, in these instances and many others was partly transformed into “must.”

Ironic Freedom details the ways in which policies permitting a right to die, birth control, abortion, surrogate motherhood, prostitution, a volunteer army, equal employment opportunities, and same-sex marriage all generate coercive pressures that some woman are better able to resist than others.  In numerous areas of law, Baer details, the possibility exists that “permission will lead to coercion: that ‘may’ will become ‘must,’ or ‘can’ will become ‘should.’”  Liberal freedoms are not unmitigated blessings because being a woman, being gay, being young (or old) or being differently abled is not the sole marker for any person.  Whether legalizing prostitution increases liberty depends on the extent to which particular woman are free in practice choose whether to become prostitutes.  Legal birth control increases pressures on many women to engage in sexual behavior.  Some elderly poor are unable to resist subtle and unsubtle pressures to exercise their “right” to die.

Professor Baer provides an exceptionally readable introduction to the ways in which “may/must’ arguments function in contemporary discourse.  The chapters on each subject highlight how various “may/must” arguments implicate liberal and feminist concerns, and are not simply rationales for conservatives opposed to the right in question primarily on illiberal and antiegalitarian grounds.  The volunteer draft has resulted in a military in which poor persons and persons of color are overrepresented.  Some men are more inclined to pressure women to terminate pregnancies because abortion is legal.  Far more poor than affluent persons choose assisted suicide.  Professor Baer at the end of the day makes strong arguments for all of the liberties in question.  Nevertheless, she insists that liberals and feminists keep their eyes open when promoting liberalizing policies because all liberalizing policies have coercive dimensions, dimensions likely to be exacerbated when ignored.  Liberalization, in short, is only one step in a long, complicated and paradoxical process by which men and women in our society may become equally free and equal.

Ironic Freedom is particularly appropriate for classroom use.  The work is short, accessible and fascinating.  The text promises one terrific class after another.  The chapters explore the pros and cons of various policies from a variety of fascinating angles and do not resemble the disguised legal briefs that too often dominate the academic law market.  Most important, at a time when intersectionality is hot, this is perhaps the best introduction to the ways in which gender intersects with race, sexual orientation, class, and disability to make what appear obvious liberal and egualitarian policies a bit more illiberal and antiegalitarian than many of us would like to acknowledge.