The Spirit of the Common Law and the Rights of Women: A Review of Bernstein, the Common Law Inside the Female Body

Abstract

This book is both narrow yet courageous, it is not highly theorized yet subtle and multitracked in its use of theory, it is a bold feminist statement yet tacks to an independent path, it is radical but rests on old revered foundations, it hits hard yet is carefully crafted in logic. What a joy it is to read and to review. It coincides with a core of my ideas of the nature of private common law, but I find I have disagreements with some of the assertions of tort law principles that ground some of the major conclusions. Here Professor Bernstein is at her iconoclastic best in presenting a tract of tort scholarship that challenges all those who have brought the law of torts to its present state. No universal theory is presented. The unifying theory has been much favored since the turn of the twenty-first century. No underlying extra-legal explanations are provided, although rich history and philosophical, psychological and sociological insights give thrust to the arguments. And at the pole she is scathingly political. As she recognizes, readers who come to the book expecting dismissal of the common law from the stage for new visions of a transformed body of law will find an argument that starts with us accepting the spirit of the common law and a rejection of all that Jeremy Bentham was to prescribe as a cure for its inadequacies. Bentham, we are told, was an “interlocutor” on the author’s “mental shoulder” as she wrote the book. It seems remarkable that when she visited Bentham’s “auto-icon,” as exhibited in NYC, it did not rise up in objection to one who does not share his faith in the grandeur and fruitfulness of legislative codes as maximizing happiness. In presenting the argument she departs, as she