Real Choices: Feminism, Freedom, and the Limits of the Law
Beth Kiyoko Jamieson
University Park: Pennsylvania State University Press, 2001.
$35.00, 259 pages, ISBN 0271021365.

Diana Dominguez
Texas Tech University

Beth Kiyoko Jamieson, a lecturer in the Department of Politics at Princeton University, sets herself the monumental task of justifying "the need for and construct[ing] a feminist theory of liberty." While this may seem like something of an arrogant boast, Jamieson does just that in a cogently explained and eminently readable book. One of her primary goals is to emphasize that a feminist theory of liberty cannot and should not be comprised of a closed set of principles that does not allow for alternate ways of thinking or theorizing about liberty or freedom, a problem that she claims (and shows) has plagued jurisprudential scholars and theorists in the past. As she puts it: "Feminism, to me, is about choices, not restrictions – it is enmeshed in liberty interests." In this respect, Jamieson succeeds admirably in presenting a theory of liberty that encompasses both old and new ways of thinking about the concepts, contexts, and limits of liberty, equality, personal dignity, personal responsibility, and diversity, that is useful for the application of justice and jurisprudence relevant to feminists and feminist ideals.

Jamieson divides her book up into three distinct sections. The first (the first chapter) is a thorough, but not overwhelming, literature review of feminist jurisprudential scholarship. She explains what she calls feminist jurisprudential theory's "fatal flaw:" a liberty-equality dilemma which assumes that "liberty and equality are dichotomous concepts," that they cannot exist simultaneously, and that an increase in one automatically means a reduction in the other. The predominant focus for feminists has been on equality, and while Jamieson does not deny that equality is an important goal, she argues that a truly feminist theory of liberty should constitute an understanding that liberty and equality are not at opposite ends of the spectrum. In her second section (the second chapter), Jamieson presents a brief overview of historical traditions of liberty. She examines elements of the principles and theories of liberty of Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Karl Marx, and John Stuart Mill. She uses specific aspects of their notions of liberty to support her own definition of liberty: one that does not rely on painting liberty as a caricature of liberalism, and one that means more than the mere absence of restraint. In this section, she also examines the concepts of negative liberty (absence of restraint, freedom from outside coercion) and positive liberty (individual agency, freedom to act), and argues that aspects of both need to be included in a new feminist theory of liberty.

Her third section is the main argument of her book, and comprises four chapters; in chapter three, she presents her feminist theory of liberty, and follows this definition with three separate case studies. Her definition can be concisely stated thus: "A more useful conception would be based on an open set of principles and questions, which are simultaneously reflective of past political theory and grounded in lived experience." She also states: "A feminist theory of liberty must be contextual, principled, and contingent." She proposes three principles based on the three case studies she presents: a) The Identity Principle – individuals should be able to define themselves in their own manner, and that these definitions should be flexible as necessary; b) The Privacy Principle – individuals have the right to control their own bodies, free of state coercion that compromises standards of human dignity; and c) The Agency Principle – individuals have the right to make their own decisions about how to live their lives, and these individuals must be assumed to be capable of making their own decisions. She emphasizes repeatedly that, while she is proposing these three principles based on her readings of the three case studies, she does not preclude other principles arising out of others' interpretations of the same cases. As she states emphatically: "I am happy to grant that other interpretations may also be plausible. The conclusions reached are not the final words on the subject but are my attempt to reframe and redirect the debate. If they are contested, I have succeeded."

The three case studies are the most fascinating part of the book. She uses a method of reading and interpreting the legal cases that is untraditional in jurisprudential research – close reading analysis as informed by the methods of James Boyd White and Clifford Geertz. She uses this methodology, she says, because close readings of transcripts, analysis of judicial reasoning, and private narratives of lives intersecting with law can reveal much more meaning in a feminist vein than traditional jurisprudential analysis methods. The methodology she uses allows for both political/theoretical principles and lived experience that she proposes are important to a relevant and useful feminist theory of liberty. She states that her aim is to show how "the real force of the law" works in "everyday lives." She addresses concerns others may have with her methodology by admitting that the narrative method she uses has a flaw in that it can result in particularly shoddy and irrelevant scholarship if done poorly, and she explains how she has crafted her case studies to avoid the pitfalls this kind of methodological research often falls into. One of the ways she avoids this flaw is to make sure her conclusions are not applied in a universal fashion, and to reiterate that the principles she proposes are examples of one way to think about liberty. She invites others to explore the issues raised, for truly relevant conclusions and theories must be contestable to further useful debates and explorations.

Jamieson's Identity Principle is explored in the U.S. Supreme Court case Romer v. Evans, which invalidated Colorado's antigay amendment. She argues that the traditional view of identity politics minimizes the importance of an individual's self-definition of identity and veils the differences between groups, and often imposes fixed identities based on institutional and universal definitions. On the contrary, in her definition, identity is not fixed, permanent, or mutually exclusive, and must arise from individual definition. Her Privacy Principle is explored in the complications arising out of state regulation of surrogate parenthood as illustrated by several legal cases. She uses the 1905 case Lochner v. New York to show how surrogacy and sperm donation have fallen under the legal, moral, and political issues inherent in freedom of contract discussions. She subsequently argues that giving women a "biological justification" to rescind a surrogacy contract (and keep the child she gives birth to) but not giving men an equal right to claim custody of a child produced from their donated sperm is not unjust, for the "human dignity" issues are different. As she states: "Surrogacy contracts are not the purest expression of women's freedom to be 'just like men,' because. . .sperm can be separated from the man's body; the uterus is part of a woman's body." The third principle, the Agency Principle, is derived from a case of intimate violence that was not a court case. Jamieson explores this case through narratives of the parties involved, the woman victim (who did not leave the abusive situation), her abuser, the police who investigated the incident, civil lawyers, and others associated with the incident. This case, in which the woman chose not to leave her abuser, clearly demonstrates, Jamieson argues, the principle of allowing individuals to live their lives according to their own decisions, even if those decisions seem to go against others' ideas of what is sensible, ethical, moral, or socially appropriate. She is quick to point out that she does not propose that intimate violence and a consistently abusive relationship is simply a "private family matter" that should not be interfered with by the proper authorities, for that would mean a return to a time when family abuse was never acted upon legally. However, although her principle may seem to point to an unthinkable situation to many feminists – abused women who decide to stay with their abusive partners – she argues that there needs to be room for individual choices for true liberty to be present, no matter how repugnant those choices may seem to be.

Aside from the six chapters discussed above, Jamieson provides an excellent introduction that reads more like a concise overview, or condensed version of what she discusses. The seventh and last chapter provides a concise summary of the previous six chapters that helps make the links between her ideas more explicit and immediate. Reading these two sections – the introduction and her seventh chapter – can provide the reader with an immediate sense of Jamieson's overall argument, and then move into the six chapters for the more fascinating details that help to illustrate that argument.

Her writing style is a definite strength, as it makes the book's ideas accessible to the general reader. She avoids complicated legal vocabulary and jargon, explaining the processes of legal cases and theoretical ideas of liberty and jurisprudence in language that is easily understood. This could be seen as the book's weakness or drawback, however. I found myself, at times, a little frustrated with how elementary some of the explanations seemed, and Jamieson does have a tendency to repeat certain concepts and ideas a little too often. For readers with even a passing knowledge of more dense scholarly writing/research, or a passing knowledge of jurisprudential issues (like me), the book could seem a little condescending, or, perhaps, sound too much like Jamieson underestimates the ability of her audience to grasp her concepts – as if Jamieson were too used to lecturing to under-prepared and too easily confused students in an introductory jurisprudence class? However, having said that, I found that her attention to avoiding the often perplexing vocabulary and language of complex legal scholarship made for a quicker and more fascinating read than I was expecting. It was refreshing to see a subject that is too often so abstract it loses any personal significance explained in an accessible and more personally relevant fashion. It made me aware of just how important and individually significant the issue of liberty is, and, because of its clarity, it should do the same for other readers.

Cercles©2002