(Un)Common Law and the Female Body

A dissonance frequently exists between explicit feminist approaches to law and the realities of a common law system that has often ignored and even at times exacerbated women’s legal disabilities. In The Common Law Inside the Female Body, Anita Bernstein mounts a challenge to this story of division. There is, and has long been, she asserts, a substantial interrelation between the common law and feminist jurisprudential approaches to law. But Bernstein’s central argument, far from disrupting broad understandings of the common law, is in keeping with a claim that other legal scholars have long asserted: decisions according to precedent, and other aspects of the common law ideal, do not demand only certain narrow outcomes, or the expression of outcomes in specific language. Bernstein’s work suggests that the common law has always offered liberatory potential for women, and this potential grows from longstanding common jurisprudential attributes and understandings, not new or uncommon attributes.