Seeking Liberty, Finding Patriarchy: The Common Law’s Historical Legacy

Anita Bernstein’s important new book argues that the common law might be used to advance women’s liberation. In this short essay, I analyze Bernstein’s three modes of historical analysis: redeeming the common law where it enforced oppression, recovering it when it promoted women’s rights, and facilitating its evolution toward a feminist future. I argue that Bernstein’s account, though learned and compelling, sidelines the centrality of patriarchy to the common law. Adopting the liberty of the patriarch cannot realize true freedom for women. By appropriating common law doctrines, feminists risk forging a conceptual alliance with the very ideologies that enforced gender, race, and class subordination. Women’s freedom must be realized not through patriarchy’s tools but through legal theories that stress relationship, vulnerability, and social welfare obligations.