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In the book ‘On Freedom’, Maggie Nelson engages with the question of freedom in four realms (art, sex, drugs, and climate), making an urgent intervention amid cancel culture and the MeToo movement. In Chapter 2 on sex, she draws on Foucault and uses the concept of power and desire, to shed new light on calling out people for professional sexual misconduct, exposing the paradox of freedom.

Nelson says that freedom is a part of power. There is only power if there is freedom. Otherwise, there is total domination. When we are within power, we are not aware because we do not reflect on it. Awareness of power is the sign of freedom – in other words, freedom lies in our awareness of power. We can only place or imagine ourselves in a position of power when we have some kind of freedom. The awareness of the power is the evidence of some kind of freedom.

Freedom – the room for maneuvering – is paramount to experiment. And experiments come with harm and damage. Freedom is not that we know what we want, not that we come out unharmed. There are lots of consequences that we cannot predict. She is pushing the definition of freedom far by saying that we are free even when we are constrained, even when we do not know what we want. It seems that she is proposing an expansive definition of freedom.

Nelson reflects on the MeToo movement and the law that it brought. They demand there needs to be explicit consent for sexual activities, but she says that it is so hard to define consensual sex when we do not know ourselves what or when we desire – which is more often the case than we think.

Who we choose as our partner is often an unconscious choice informed by unconscious/subconscious factors – then how ‘autonomous’ are we really? When a lot of things we do are unconscious, how can we be autonomous?  There is also a difference between having desires and acting on them. When it comes to ‘thorny issues’, such as AIDS, sex between parties with power differentials, and disclosure of STD status, people may have certain fantasies/desires and our freedom to experiment with them, but also when/where we want this experimentation to stop. We may have desires but do not practice them – are we then unfree? Wanting is different from desiring because wanting takes into account practicalities and risks, and balancing all that.

A fine line and a delicate balance need to be sought when people desire what is self-destructive. For instance, masochist sexual behaviors. When it goes so far, there becomes a need to protect them from themselves. Determining how far it can go is difficult. People who are involved in masochist sexual acts set up clear rules and even draft contracts clearly outlining what can and cannot happen during the encounter. When do we need to protect them from themselves? The question is poignant in particular when they are children, people with disabilities, and those who are under the influence of alcohol or drugs.

Nelson also questions the idea that the MeToo movement seems to have created: that ‘correct’ or ‘ethical’ sex is where power relations are stripped as much as possible. Assuming that freedom is always diminished where there is a power relation. Following Foucault’s idea, she claims that there is power everywhere. And agency is a negotiation of possibilities and power. But, we may ask ourselves, the question of whether our romantic partnerships are free from power dynamics. Even between partners intimacy is influenced by power dynamics in society, for example gender roles enacting during sex.

The freedom to speak out limits the freedom to experiment – because it compels us to conform our behaviors to what is considered correct. So in this sense, the MeToo movement is denying people’s freedom by punishing desires that do not conform to the norms that it has created – what is ‘correct’ or ‘ethical’ sex.

People are ambivalent about their responsibility so they tend to shift the responsibility to the other person but it is problematic … because sex is ‘the scene of learning’. She says that we should have the freedom to experiment. But then we should also accept that experiment comes with pain – but there are boundaries, which are very hard to define. There are many ‘thorny issues’ – where there grey areas are. As the white house intern who had sexual relationship with the president said, ‘But it is complicated. Very very complicated.’ In these grey areas, is there a need to set a rule? We can set a rule/law and see what happens. Laws standardize/generalize – but when they are applied, it is also judged on a case-by-case basis.

Nelson also questions the ideology that tells us that we become happy when we are completely free. For instance, in a newspaper, there was a story of a man who grew up with hippy/gypsy parents – ‘free’ parents. When he was 14 for instance, he flew to India himself to stay with his parents’ friend who was doing drugs. He reflected on his childhood and he thought that it was a mistake of his parents not to set any boundaries. The consequence of not setting boundaries was perhaps feeling unsafe, insecure, of not having a home, of being loved. Setting boundaries can be an act of care and love.

Giving complete freedom/being in a completely free environment may not be ideal. Law – a boundary that the state makes – can limit our freedom but also provide us with freedom. It is also the question of ‘Freedom to’ and ‘Freedom from’, as well as ‘whose freedom?’. For instance, think of the law to punish/control parents who abuse children – it limits parents’ freedom to hit their children, but it provides children with freedom from being hit. It is about equality/freedom vs the protective function of the state. In the end, it is a delicate balance between freedom and equality.

For the lecture, I was asked to talk about my research on child marriage in Indonesia. Recounting the stories of the people I talked to during my fieldwork in Indonesia for this occasion, and discussing with the lecture participants, gave me a fresh look at their stories and the questions of choice once again.

One of such stories is the story of a girl who married at the age of 16, lived in a rural village in Bali. She became pregnant when she was 15 years old, and had a customary marriage before giving birth. At that time she has been in courtship for over a year, with her boyfriend who was 6 years older than her. When her boyfriend asked to have sex with her as ‘a proof of love’, she agreed, although she was ‘a bit scared’. When she found out that she was pregnant, her pregnancy was three-month-long. When her boyfriend came to know about her pregnancy, he first denied that it was his child and he refused to marry her. After a week, he eventually agreed to marry because he was ‘ashamed’ as ‘everybody knew’ about their relationship in the small village they resided. The news about her pregnancy upset her parents. Her mother said to her, ‘Have abortion because you two are still young’. She wanted her to continue studying and it was not possible to do so while being pregnant. The girl, on the other hand, decided not to have abortion because she was ‘scared’. At the time of the interview, she was already in her 30s, and her daughter was a teenager. She already has divorced her husband after ten years of their marriage. She said she does not regret having a child, but she regret marrying him. ‘If I can go back to the time when I became pregnant, I would choose to be a single mother’. However at that time, it was not the option. People in the village did not accept a single mother – if she gave birth without getting married, she and her family would have been ostracized from their local community.

She married because she became pregnant – not because she wanted to have a child at that age, but because of the lack of knowledge about reproductive health. In Indonesia, because of the influence of Islamic norm, pre-marital sexual intercourse is considered a sin and therefore a social taboo – there is a desperate lack of reproductive health education, and sufficient and correct information about contraceptive means and consequences of sexual intercourse. Moreover, abortion is illegal – many people resort to illegal abortion but it is often unsafe. On top of that, being a single mother was also not an option – because of the taboo around pre-marital sex, pregnancy and giving birth outside of wedlock is severely stigmatized and has heavy consequences on the mother’s social and communal life, as well as her family’s. The girl in this story gave birth and married the boy despite her parents’ disagreement. It suggests that it was ‘her decision’, the exercise of her strong agency. But her decision was constrained by social norms around her. Her decision was motivated by fear – as her words ‘I was scared’ clearly indicate. Then, was her decision to marry, ‘her choice’?

It reminded me of the book ‘On Freedom’ by Maggie Nelson that I am reading. In one of the chapters where she discusses sexual violence and freedom, she writes,

Analyzing the power dynamics of any particular scenario can be crucial to our understanding what happened and why, but it does not follow that if elements of power exist our agency is extinguished. The exercise of agency is always a negotiation of available possibilities and pressures (p.110).

Perhaps I could think of her story along the line by replacing ‘power’ with ‘constraint’ or ‘social pressure’. The situation she faced came with a number of constraints, resulting from the limited options for abortion, lack of knowledge and access to information, social pressure and strong consequences attached to it. Awareness of such factors is crucial to understanding why she decided to marry and give birth. But it does not follow that if these factors exist her agency is extinguished. The exercise of agency is a negotiation of available possibilities and pressures.

But again, was it ‘her choice’? If freedom is ‘a matter of making space, of increasing degrees of possibility and decreasing degrees of domination’ (I replace domination with constraints here) and does not mean all constraints and relational concerns have vacated the field, with what amount of constraints and pressures do we become ‘unfree’? How can we possibly quantify or identify the line? Is it important to identify the line? Why?

Is it important to identify if it was ‘her choice’?

Inquiries continue …

Throughout Europe, legislation on sexual crimes is going through remarkable reforms. Following the increasing attention to sexism and gender-based violence, notably in the wake of the #MeToo movement, the scope of transgressive behavior sanctioned by criminal law is widening. One such example is rape law: over the past four years, nine European countries have moved from coercion-based to consent-based rape law. Street harassment is another example: it was for long regarded as a form of undesirable, yet legal behaviour, but in 2014, the first European ban on street harassment was introduced in Brussels. Since then, laws and local ordinances have been introduced in various European countries, notably in France, Portugal, The Netherlands and Britain. Another recent extension of legislation on sexual crimes relates to online sexual crimes, enabled by technological change.

These developments are taking place throughout Europe. However, notable differences exist when it comes to the details of legal reform as well as their framing of the underlying problem. These differences relate to differences in how gender-based violence has been politicized in each country, varying degrees to which the women’s movement was involved in these reforms, and the ideological orientation of the governments initiating reform. In the midst of these recent and ongoing reforms, urgent questions to be addressed are:

1. What are recent and impending legal reforms of sexual gender-based violence in Europe?
2. How do lawmakers frame the problem they are trying to address?
3. What are the concrete effects of this legislative innovation in different European countries?
4. What explains the emergence of new gender-based violence regulation in Europe?
5. What explains similarities and differences in content, framing and effects of legal reform?

Our two-day workshop aims to contribute to a collective and comparative reflection on these questions from various disciplines, notably sociology, political sciences, anthropology, and law. The workshop will have a maximum of ten participants. Participants commit to distributing their papers at least 2 weeks before the start of the workshop. During the workshop participants will provide feedback on each other’s papers. There will also be ample time for more informal networking.

Program

Sunday 15 October 2023
Afternoon + evening	Arrival participants + informal meet-up
Monday 16 October 2023
9.30 – 16.30	Workshopping of papers, lunch, workshopping of papers
20.30 – 23.00	Workshop dinner
Tuesday 17 October 2023
10.00 – 15.30	Workshopping of papers, lunch, workshopping of papers
16.00 – 17.30	Public round table

Costs

Travel costs and accommodation need to be arranged for by the participants themselves. Costs for lunch and dinner will be covered by the workshop organizers.

Deadline Abstracts

Please send your abstract (400 words) and a short biographical note (150 words) before 15 June 2023 to h.horii@law.leidenuniv.nl. We will inform you of our selection by 5 July 2023.

Organizers & Committee Members

Annelien Bouland (Social Sciences Department, Universidad Carlos III Madrid)

Helena Soleto Muñoz (Universidad Carlos III Madrid)

Mischa Dekker (Faculty of Social Sciences, KU Leuven, Belgium)

Hoko Horii (VanVollenhoven Institute for Law, Governance and Society (VVI), Leiden Law School, the Netherlands)

María Bustelo (Universidad Complutense Madrid)

Magdalena Díaz-Gorfinkiel (Social Sciences Department, Universidad Carlos III Madrid)

As one of the meetings we organize with Intimate Legal Interactions research group, we read chapter 6 of Sherry Ortner’s book “Power and Projects: Reflections on Agency”.

After reading the chapter, we came to understand agency as ‘one’s capacity to have the
capacity to act’. Ortner’s distinction between routine practices and agentive acts seems to
suggest that agency is some kind of intervention. Routine practices are unexamined and
unreflected, and this is an example of how a structure makes us perform (in Giddens’ sense).
Giddens’ theory of structuration helps us to understand how, even when our agency is embedded
and to some extend conditioned by structures, we have the power to change the structure by
exercising agency. Agency is not opposed but constituent of structure.

For instance, going to school at 8:30 just because it is the rule, what the teachers tell you to do, or
what all the other students are doing. Agentic acts can be seen in (1) not going to school at 8:30
as an act of ‘resistance’, but also in (2) going to school at 8:30 because you do not want to face
consequences of disobeying, but still looking for alternative ways to subvert the structures and
acting upon in (e.g., form a group of students to protest against the rule). So, the essence of
agency is reflexivity.

Do we reflect when we act? Do we reflect on whether it is the right thing to do? For example,
crossing roads with a green light or red light. Do we cross the road with a green light because we
reflect that it is the right thing to do (for safety, or for being a good example for other people)? If
reflection and intentionality are the essence for agency, what about unconscious intent? We might
not reflect every time we cross the road with a green light that it is the right thing to do, but our
behaviour might be guided by the principles that we have. In this sense, reproducing the statusquo can also be an agentic act too.

Ortner examines the critiques that are made by some scholars about the overemphasis on
‘intention’ attached to agency (e.g., Comaroffs). Ortner calls their take on agency the ‘soft
definition’ of agency: this definition does not place intention as a central element of agency, and
emphasizes the social embeddedness of agency and unintended consequences of one’s action
(the gap between intention and outcome). The British sociologist, Giddens, for instance, argues
that intentionality is a process: not that actors have goals consciously held in mind during their
activities. By examining these critiques, Ortner herself, seems to place ‘intentionality’ (i.e.,
motives, dreams, and desires) central to her concept of agency.

Reading this chapter and following Ortner’s exploration of the question of ‘does agency inherently
involve intentions?’, allows us to understand the position of other scholars, for instance the
famous French philosopher Latour, who argue that objects can have agency. If intention is not
central to the concept of agency, their argument makes sense.

In this semester, I taught for the first time a course from a program called Honours College Leiden. It is the program that only Leiden Law students with top grades can participate and take extra courses on top of their regular law courses. The regular courses I usually teach have over 50 students signing up for each course, but this Honours College’s course is designed with a small group, so the maximum number of students with 26 joined the course (although more than 50 students wanted to enroll, I heard).

With this kind of courses with a small group of students, there is a wider range of activities and assignments we teacher can try out in class. I could make the lectures more interactive, and I gave them a group assignment whose outcome they presented. At the end of the course, I received many positive comments from the students – kinds of comments that I would not have believed I’d have if asked to myself a few years ago when I started teaching. But among them all, this one game me little goose-bumps.

Your lectures have changed my perspective on life and society, which I will take with me for the rest of my life.

When I was hesitating whether I should take on with academic career, a decisive factor was the memory of the encounter with my current boss – whom I met when I was an exchange student in Leiden. Over 10 years ago when I did an exchange year in Leiden during my bachelor study, I took his courses on “Law and Governance in Indonesia” and “Law and Culture”. His lectures reminded me of the joy of learning with curiosity. And his personality, his positive energy, his kindest and humble attitude influenced my view of life. In other words, having met him as a professor at the university has ‘changed my life’.

Looking back, all the turning points in my life have been encounters with people and the impression they made on me. My homeroom teacher in the third grade of primary school. A trainee teacher who came for a few weeks when I was in high school. My tennis coach. My PhD supervisor. Also some friends, and sometimes people I met only once, but some of their words have left deep impression on me that I still remember them sometimes. All these people I met have become the dots, connected, lead me to the person I am today.

I feel as if I have been running all way long after having my daughter ten years ago. I’ve been working to build my career as if my life depends on it. And now, the job that I’ve dreamed of having, the position I cannot imagine any better in the world, is in my hands. It fell into my hands with a flop, as if it just has to be there. I’ve been so eager to grow and learn, but in the next ten years, in my thirties, I would like to shift my focus a little more onto what I can give to others and what kind of positive influence I can be on people around me. One is of course the transfer of the knowledge, the way and joy of learning. But the ‘giving’ is not only that – but also in terms of the way of being and living. Just like how he influenced me by the way he is, he acts, and interacts. His priorities in life. Or put more simply, being a ‘good person’. Just by being who he is, he has a positive influence on those around him.

I am not teaching in this semester, and preparing and reflecting for my next lectures. I am thinking of my students, whom I have yet to meet, and of what I can do and give them in the few weeks I have for one course.