by Judith A. Baer. New York: Palgrave Macmillan, 2013. 200pp. Hardback $81.00. ISBN: 978-1-137-03095-5.
Reviewed by Courtenay W. Daum, Associate Professor, Department of Political Science, Colorado State University. Email: Courtenay.Daum [at] colostate.edu.
Judith Baer’s IRONIC FREEDOM: PERSONAL CHOICE, PUBLIC POLICY, AND THE PARADOX OF REFORM introduces readers to the concept of ironic freedom, a critique that she directs at liberal policy reforms. According to Baer, the paradox of reform is that liberals often support and advance policies that seek to expand individual freedoms without recognizing that upon implementation these laws may work to the detriment of certain individuals – those already marginalized by the patriarchal, heterosexist, and/or socioeconomic norms and constructs that shape contemporary American society – by restricting their liberties and choices. To be clear, ironic freedoms are not merely the unintended consequences of benign policy reforms. Instead, Baer explains that ironic freedom critiques are appropriately leveled at policy reforms that “decrease the freedom of the people who ostensibly benefit from the change and increase the power that other people, institutions, and conditions have other them” (p.4). As such, ironic freedom identifies and draws attention to the coercive tendencies and controls that result from certain liberal policy reforms. For legal scholars, Baer’s ironic freedom evokes the U.S. Supreme Court’s Lochner Era jurisprudence and the liberty of contract. In LOCHNER V. NEW YORK (1905), the Justices’ defense of bakers’ right to work and negotiate the terms and conditions of their employment expanded individual freedoms in principle but empowered employers and other institutional entities to exercise great control over labor markets and to exploit workers. As such, Lochnerian liberty worked to the detriment of the very workers it was intended to protect. Ironic freedom is similar to Lochnerian liberty but the former goes beyond legal constructs to identify how social constructs, expectations and circumstances restrict personal choices and freedoms.
To demonstrate the concept of ironic freedom, Baer identifies five liberal policy positions intended to increase individual freedoms and then proceeds to articulate and offer evidence in support of each policy’s ironic freedom critique. The five case studies include liberalizing laws to allow for assisted suicide (Chapter Two), occupational choice (legalizing sex work and somewhat differently outlawing the military draft to allow for voluntary military service) (Chapter Three), same-sex marriage (Chapter Four), and reproductive choice (including access to contraceptives, abortion and surrogacy) (Chapter 5). Central to each case study is the distinction between policy reforms that may allow for certain actions and choices versus those that lead to or compel certain outcomes as a result of either official or social coercion. Baer [*303] explains that, “Ironic freedom arguments worry that ‘guaranteeing people the freedom to do x will lead to people’s being forced to do x’” (p.14). While the line between freedom and coercion is thin and blurry (p.15), the may versus must and can versus should distinctions are key to elucidating the difference between a policy that results in increased individual freedom versus one that results in ironic freedom. For example, in Chapter Three Baer explains that legalizing sex work will lead to forced prostitution. At the same time that legalized sex work may enhance individual liberties for some sex workers and improve their working conditions, wages and personal safety, this policy change will simultaneously result in some women and children being forced into prostitution. Legalized sex work will provide legal cover for pimps who coerce women into sex work against their will but also will lead women with limited economic resources and choices to participate in the sex market out of financial necessity. Thus, Baer argues that liberal supporters of legalized sex work should be aware of and take into account the ironic freedom critique of this policy proposal in order to better understand the costs associated with this reform. Baer suggests that conversations move beyond simple yes or no discussions – do you support legalized sex work? Yes or no? – in favor of more nuanced questions such as “‘How can we secure these individual rights while eliminating, or at least reducing the risk of abuse?’” (p.117).
Of the five case studies included in IRONIC FREEDOM, some work better than others. Baer’s analysis of the right to die/assisted suicide in Chapter Two is one of the strongest in the book. This may reflect the fact that the costs associated with this policy position – the ironic freedom critique of the right to commit suicide is that it leads to non-voluntary deaths – are irrevocable and hence less ambiguous than some of Baer’s other case studies. Baer explains that while it is easy to defend the right to end one’s life in the face of terminal illness or decreased quality of life it is important to recognize that guaranteeing individuals the ability to exercise this liberty fails to acknowledge that this practice will not always be voluntary for all individuals. Baer examines how social coercion and societal expectations may drive some individuals (e.g. those who are unable to afford long-term medical care, those who will be dependent on others for their care and fear being a burden or have no one to provide long-term care, the disabled) to end their lives. In particular, her discussion of the tensions and disagreements within the disabled community on this issue documents the complicated nature of the right to suicide and the saliency of ironic freedom techniques in this context. As such, this case study is particularly effective because regardless of whether one supports assisted suicide the potential for euthanasia that may derive from its legalization is a result that all readers will agree is an unacceptable outcome. In contrast, the case study on how the legalization of same-sex marriage will result in compulsory marriage is less compelling. This reflects the fact that much of this chapter is focused on discussions about the hypothetical effects of legalized same-sex marriage. In addition, by her own admission, Baer acknowledges that legalization of same-sex marriage may result in stigmatization of those who do not marry [*304] thereby increasing both institutional and societal pressure on all individuals to marry OR “same-sex marriage may become a force for freedom and against stigmatization, exclusion, and coercion” (p.73).
Baer concluded her 1999 book OUR LIVES BEFORE THE LAW: CONSTRUCTING A FEMINIST JURISPRUDENCE by introducing the idea of “feminist postliberalism” as a tool for moving beyond the constraints of liberal jurisprudence. To that end, IRONIC FREEDOM is Baer’s substantive attempt to reconcile liberal and feminist principles in pursuit of this “feminist postliberalism” (p.6). As such, it is not surprising that one of IRONIC FREEDOM’s strengths is Baer’s ability to bring feminist theory’s explicit challenge to the artificial distinction between public and private spheres to bear on liberal theory. Baer’s ironic freedom critique exposes the extent to which liberals rely on the distinction between public and private spheres to justify liberal policy reforms that benefit the privileged often at the expense of those who are less privileged. Specifically, Baer identifies how expanded individual freedoms may enhance opportunities for social coercion in the private sphere that work to the detriment of the underprivileged and marginalized. By drawing attention to the practices of social coercion and the effects of these informal coercive tendencies Baer challenges liberal policy makers and proponents to be more aware of the ironic freedom critiques and costs associated with expanding individual freedoms. At the same time, Baer’s discussion of feminism is not particularly nuanced and glosses over the contentious debates among feminists and their different and often competing ideas about justice, liberty and equality and how to achieve these goals. Feminist theorists from different schools of thought such as Catharine MacKinnon, Carrie Menkel-Meadow, Judith Butler and Jennifer Baumgardner are likely to have competing definitions of and prescriptions for a feminist postliberalism. Baer’s text would benefit from at least a brief recognition of these competing and contradictory feminist perspectives and an explicit acknowledgment that IRONIC FREEDOM reflects her own feminist viewpoint.
In conclusion, IRONIC FREEDOM would be a useful addition to undergraduate courses on legal philosophy and contemporary moral problems because Baer’s writing is clear and accessible and she carefully steps through the many nuances of the issues covered in her case studies. Furthermore, Baer does an excellent job of providing a fair and balanced discussion of the competing political, ideological and philosophical positions that inform these complex moral, legal and political issues.
Baer, Judith A. 1999. OUR LIVES BEFORE THE LAW: CONSTRUCTING A FEMINIST JURISPRUDENCE. Princeton University Press.
LOCHNER V. NEW YORK 198 US 45 (1905).
Copyright 2014 by the Author, Courtenay W. Daum.