SEX AND SOCIETY: LAW AND SOCIAL RULES
Law comprises a set of rules and rules for the use of those rules which, themselves an object of study, allow investigation of the larger sociocultural order. Legal trends appear and shift in concert with other social alterations. There is, however, a tendency for law and judicial decisions to express the specific, concrete concerns and the social policies of a generation past. Judges are generally prosperous, male, members of the bar, over sixty. In addition, the fundamental importance of precedent as the operant principle of the judiciary explicitly demarcates previous decisions as a basis for current ones. Even on the heels of alterations resulting from legislative acts, judges are inclined to provide interpretations which sustain the courtesies of their own experience. In this respect, the landmark decision, Griswold v. Connecticut, defining a right of privacy (here, in relation to contraception) might appear relatively in advance of law’s own time. Cases like this (and succeeding decisions relying on the notion of privacy, e.g., Eisenstadt v. Baird, Roe v. Wade) would appear to rattle a society which had held women to be inferior, weak, and needing protection, and to loosen that society’s restrictions on sexual behavior. Although we do not expressly dispute this suggestion, we claim that from a somewhat different perspective these decisions work to reinforce another basic feature of the American polity and society, the division between private and public spheres. We further suggest that that reinforcement may be ultimately of at least equal significance to concomitant changes concerning when and where people have a right to declare particular behaviors private. The state maintains its right to determine who may have sexual relations with whom and to fix the laws of marriage, divorce, property rights, and custody prerogatives. Certain arenas including the marital bed—and now the non-marital bed—have been declared private. But the declaration may itself create an illusion of sorts. The state continues to set the terms of marriage and to determine which aspects of that legally defined relationship may be generalized to other contexts. The law continues to establish and to limit a private domain, differentiating it from a public one. The state, through law, explicates proper and improper patterns of sexual behavior and, in that lawmakers embed or redefine wider notions of paternity, maternity, spouse, and childhood, which notions, in turn, bear heavily on matters of divorce, inheritance, property ownership, and tax obligations.
Eli Zaretsky argues that nineteenth-century capitalism brought two interrelated changes which re-defined the notion of “family.” Labor was taken effectively outside the family unit and placed in factories and centralized corporate settings. Women continued to “work” in the home, but that work was defined as a marital and maternal obligation rather than as labor. At the same time, a sphere of activity, the activity of “private” life, was separated from public activity, including work, and came to represent those spaces and times preserved for “leisure,” for personal creativity and entertainment: “As a result ‘work’ and ‘ life’ were separated. . . . Just as capitalist development gave rise to the idea of the family as a separate realm from the economy, so it created a ‘separate’ sphere of personal life, seemingly divorced from the mode of production” (Zaretsky). Laws concerning sex and sexuality must be understood in light of this history. The state maintains its interest in laws of marriage, and the society maintains a comprehension of sex as ideally represented in and representative of the family (Schneider). Yet, laws concerning sex have been altered and generalized in accord with notions of the increasing importance of “private” life (as opposed to “working” life). Sexuality itself has become another commodity, one through which the individual attempts to underscore and sustain a personal meaning to life.
However poignant—or annoying—Biblical stories of sexual encounter may seem, we learn relatively little about contemporary sex law from their example. It is not the metaphors of Dinah, raped by Shechem, nor of Potiphar’s wife, who falsely accused Joseph of the same crime, which are basic to this analysis. Rather, the analogies and comparisons of importance to the consideration of current sex laws are those of the consumer and of the structures and assumptions underlying corporate law.
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