Rorotoko

In a nutshell

At Home in the Law argues that the past 40 years have witnessed important transformations in the legal idea of what the home is. For centuries the familiar adage, a man’s home is his castle, was central to our legal system’s view of the relation between the state and the home. One much-noticed effect was that the law often did not find it appropriate to interfere with what went on inside the home. This respect for home privacy dovetailed with the traditional legal doctrine of marital privacy, wherein the state’s policy was to leave alone matters between husband and wife.

The feminist movement opened our eyes to the ways that respecting home privacy had the effect of allowing women to be violently harmed by their husbands. My book argues that, today, the concept of home that most powerfully shapes the law is that of the home as a place of potential violence where men subordinate women. Forget home sweet home or home is where the heart is. Home is where the crime is.

This big shift in the common sense of our legal system is felt not only in the enforcement of criminal domestic violence laws; it goes deeply to basic concepts of privacy that shape the legal relation between the state and the home. It informs a vast range of still-developing law and policy that actually increase state regulation of intimate life. The effect is to redistribute actual and symbolic power among citizens and the state.

It is time to take stock of the legal reforms we have had under the aegis of protecting women from violence, and evaluate whether the extent and kind of state regulation of the home we now have, and will likely continue to see more of, are indeed what we desired, in light of the valuable privacy and autonomy that are affected.

The wide angle

The image of the home as a place of coercion and abuse has gained ground in our culture. The notion that the home shields subordination within its walls is becoming a kind of legal default understanding. Here, the standard worry is about government failure to intervene in the home.

By the same token, the imperative that the police should protect the home no longer primarily refers to protection from intruders but rather to protection from family members. It becomes increasingly natural to expect police presence in the home—or at least in the homes of poor minorities, on whom the impact of the greater police presence disproportionately falls. Its purpose is to prevent insidious closed-door harm from husbands, boyfriends, and fathers.

In the book, I consider five different specific contexts in which the meaning of privacy is being transformed in the wake of the domestic violence revolution. Chapter 1 focuses on the common law crime of burglary, the archetypal home crime, showing how courts have translated domestic violence into the paradigm crime of home invasion. Chapter 2 considers practices in everyday misdemeanor domestic violence enforcement whereby the criminal law reorders and controls intimate relationships in the home through what I call “state-imposed de facto divorce.” Chapter 3 explicates the expansion of self-defense law propelled by a powerful social movement, led by the National Rifle Association, that marries the traditional notion of the “castle” with protecting women against violent subordination, often using the metaphor of homeland security. Chapter 4 takes up home property and explores the relation between several recent Supreme Court decisions on takings and due process, under the rubric of state deprivation of the home. Chapter 5 reflects on the figure of the woman in the legal imagination of home privacy, interpreting the judicial articulation of privacy in relation to the shielding of women from men.

I first encountered some of the problems explored in the book when I served briefly as a prosecutor working on domestic violence misdemeanors in 2004, just after I had finished clerking on the United States Supreme Court. Observing the juxtaposition of the highest and lowest courts in our legal system made me reflect on how routine practices in current domestic violence prosecution grew out of profound conceptual and social changes of the last generation. These practices have deep implications for constitutional ideas of privacy in ways that we have not yet come to terms with.

My background prior to becoming a lawyer was in literary studies, the subject of my doctorate. As a result, this book works at the crossroads of legal studies and the humanities. It takes as its object of study the cultural discourses of the law, the revealing ways in which legal actors use language to describe and perform the law’s rationales and justifications.

Ideas that find expression in legal texts do not inevitably cause particular legal results; nor do they coherently match predictable political agendas. But regardless, legal language and legal practice are filled with embedded conceptions of who we are, what we think is important, and how we should live. These are the constructs through which the law regulates our lives.

the imperative that the police should protect the home no longer primarily refers to protection from intruders but rather to protection from family members