Kathleen Sullivan has written an intriguing analysis of the theoretical foundations of the women's movement for legal equality in the nineteenth century. Her basic thesis is that the movement predominantly chose an inalienable rights approach to argue for an end to the disabilities of coverture, in the process eschewing the principles and traditions of the common law. Sullivan argues that a more effective case for married women's legal equality may have been made through the vehicle of the common law. Despite its history of restricting women's rights, the common law, in her view, had within its traditions opportunities for reform.

In her exploration of the nineteenth century women's movement, Sullivan argues for the importance of context. The movement for codification, which developed in the first half of the century and reemerged in the late 1800s, provided a critical backdrop for the women's suffrage movement. In its challenge to the processes and principles associated with the common law, this ultimately unsuccessful movement cited all of the downsides of the English legal system: its history of feudalism and barbarism, its arbitrariness, and its undemocratic nature. It was also deemed to be exceptionally unwieldy. As Sullivan notes, a counterpoint argument to the common law was that even a farmer could read a “code” (p. 40). In sum, the movement for “codification” had a strong set of claims both against the common law and in defense of civil law systems. That suffragist women, such as the Grimké sisters, would find the civil law more appealing made sense, not only because of the undemocratic nature of judicial hegemony under the common law but also because of the entrenched principles of coverture and slavery that characterized English traditions. That this movement would have developed in the early decades of the nineteenth century was understandable; it built on the positivism of Jeremy Bentham and the ethical values of those who challenged slavery, coverture, primogeniture, and property-holding requirements for voting and holding office. All of these practices were so strongly buttressed by the common law as to be seen as interwoven within it.

The common law did, of course, “fight back.” The condemnations of the civil law alternative of codification, and a judiciary with more limited power, were numerous and varied, but perhaps the most “popular” was its association with Roman law and Catholicism. What is not covered in Sullivan's book was the organized movement of the judiciary early in the nineteenth century to enhance its authority and to create an even greater gulf between itself and the “common man.” Increased archiving of its decisions, rendering the case law even more complex and inaccessible, as well as moving away from allowing jurors to interpret the law—the most democratic of its traditions—were aimed at reinforcing the autonomy of judges and protecting the propertied classes.

Setting the women's movement within the historical period and the choices apparently made at the time is a critical element of Sullivan's thesis. Although she does not employ the vernacular language, her assessment is that the women's movement perhaps made the mistake of “throwing out the baby with the bath water.” They turned to a tradition apart from what was seen as the source of women's oppression, the common law, and embraced arguments from abstract rights, natural law, and religion to challenge the status quo. Sullivan does a fine job of assessing the two major weaknesses of this approach: that arguments from abstract principles weaken claims to be made on the basis of experience, which continue to be the forte of the women's movement, and that they underestimated the importance of the common law in ordering society and serving its norms. Because it is a speculative argument that the common law would have been a more effective vehicle for effecting greater rights for married women, the book is less persuasive in marshaling evidence on that score, which is unfortunate, given the boldness of the thesis. Indeed, much of the material presented in the book suggests that legislative actions and judicial decision making in the several states highlighted, served to demonstrate that the common law was not especially reformable. The argument is also especially difficult to wage because the common law is simultaneously a set of evolving public policies, as well as a methodology for making law. It is not entirely clear which of these elements is more significant. The dichotomy between “inalienable rights” and “common law” is also difficult to maintain as the common law itself often rests on such principles.

While the women's movement may not have chosen a particularly effective package of theoretical foundations from which to argue for greater gender equality, it is not clear than it would have mattered. That society needed to have other reasons to pursue reform, apart from any claims by the suffragists, seems to be the historical message of the nineteenth century. Given the adaptability of the judiciary to incorporate minor steps forward for women while ensuring that the basic structures of the family, and the male hegemony that underlay it, was essentially preserved—for generations—it is doubtful that a different set of arguments that drew on the common law itself would have had greater success. But perhaps practical “success” in the short run may not have been expected in any case. In the long run, arguments that are from within a legal and political culture may be the more persuasive route, perhaps because they are generally incremental and, thus, least threatening.

Very effective is Sullivan's critique of what may have been the major missteps of the movement, most significantly its portrayal of the Married Women's Property Acts as the “death knell” of coverture. Here, she demonstrates that concern for women's rights had little or nothing to do with these laws, which were passed to protect family property from creditors and untrustworthy sons-in-law by allowing married women to hold property separately. Claiming these laws as markers of a new direction in women's rights was quickly belied by judicial decisions, which Sullivan accurately sees as simply reinforcing legislatures' values about the role of women within domestic life. Blaming the common law judiciary for undermining legislative gains for women was, therefore, unproductive for the movement, though it served to reinforce their misplaced focus. This is perhaps Sullivan's strongest evidence that it was a mistake for women to attack the common law as the “problem.”

Despite the quality and erudition of Sullivan's research, readers may be left unconvinced by the argument that the choice of foundations from which to argue for women's rights significantly impacted the success or, more precisely, lack thereof of the nineteenth-century women's movement. The book, nevertheless, provides an interesting thesis and much to ponder regarding how best to argue for and advance change in modern society.