Professor Anita Bernstein's book, The Common Law Inside the Female Body, is an erudite investigation into the history and operation of the common law. Bernstein's careful and wide-ranging study leads to her arresting thesis: The common law--an old, unpredictable, and slow system that has been there all along--has tremendous power to support and even advance women's legal claims to personal liberty. In other words, women have always had the common law right to be treated equally to men. We simply have not realized it.
Bernstein makes a convincing argument that the common law tradition has a unifying theoretical commitment: “[T]he law ought to leave individuals alone and to honor this ascribed desire in the face of incursions or threats by other individuals.” Bernstein finds expressions of this commitment in multiple substantive areas. Criminal law embraces a right of self-defense (“If you are attacking me with deadly force, I have a right to resist with deadly force.”). Tort law does not impose on a bystander the duty to rescue, absent a specific type of prior relationship with the endangered (“I don't have to jump into the lake to save a drowning stranger I stumbled upon.”). Contract law generally prefers monetary damages over specific performance (“You can't make me do what I don't want to, even if I signed a contract to do it.”). Property law limits an owner's liability, based on the owner's relationship to a person who enters the property (“You can't make me liable for an injury suffered by a trespasser who then fell and broke his ankle on my land.”). Together this adds up to what Bernstein refers to as the common law's respect for “condoned self-regard,” the ability to say what one does not want. Condoned self-regard expresses itself as a negative liberty--the right to be free from a particular obligation or duty.
Bernstein enhances gender equality discourse with her argument that this negative liberty provides a framework for understanding women's rights to bodily integrity. Because negative liberty--the right to say no--means that “boundary-crossing into the personal identity and space of a person qua person is wrong,” then the common law as it has been interpreted for centuries already secures women the right to not be “penetrated, occupied, or put to use by another person. The common law, then, offers women ultimate protection that goes with their bodies, wherever those bodies go. This is what Bernstein means by the common law inside the female body.
Bridget J. Crawford, The Common Law as Silver Slippers, 114 Nw. U. L. Rev. Online 131 (2019), https://digitalcommons.pace.edu/lawfaculty/1147/.