Nedelsky's book is indispensable reading for anyone interested in political theory, jurisprudence, and feminist theory. Feminist theorists will probably be the first to read it, but others should leap to join them. Law's Relations is one of the most thought-provoking engagements with political and legal theory in recent memory. Although Nedelsky says, “I am not offering a theory of justice,” her mention of a theory of justice cannot help but bring to mind John Rawls's A Theory of Justice, and her assertion that “justice debates are best structured around a relational inquiry” (p. 10) puts Law's Relations in dialogue with such liberals as Rawls, Dworkin, Raz, and Waldron. Her goal is to reshape liberal understandings of autonomy and the individual via a new perspective that draws attention to the relational dimension of human existence.
Engagement with liberal theory means that Nedelsky carefully examines the concepts of self, autonomy, and rights that are at the core of liberalism. Traditional liberal theory views the self as freestanding and bounded, autonomy as self-sufficiency, and rights as barriers against the intrusion of other individuals or the state. But Nedelsky contends that these understandings often get in the way of realizing the core liberal values of autonomy (understood as self-direction) and equality. She wants to adopt a different set of lenses through which to look at the world.
Nedelsky believes that each of these concepts needs to take account of the constitutive relationships that form all humans, adults as well as children. People tend to be especially attuned to the interpersonal relationships among family members, colleagues, and friends, but they often overlook the ways in which institutions and social practices shape all kinds of relationships, both public and private, including intimate ones. Using the lenses of relational autonomy that Nedelsky provides, one sees the concepts of self, autonomy, and rights as deeply interconnected. The “self” is the person continuously formed through constitutive relationships, from childhood on through the life cycle. The ability to exercise “autonomy,” that is, to choose actions and life plans, is a crucial attribute of the self. “Rights,” including individual rights, are claims that structure the relationships of power, trust, responsibility and care that can foster or undermine individuals' efforts to exercise their autonomy. Because institutions and social practices create and sustain political, economic, and social hierarchies, public policy and law must encompass a relational understanding of human society if there is to be any hope of realizing liberalism's core values of autonomy and equality.
Nedelsky's theoretical argument about the centrality of constitutive relationships throughout the lifespan seems to me clearly to be correct, and she bolsters her argument with a wide array of materials from diverse disciplines. Even those convinced that her theory provides the proper lenses may be skeptical about whether and how relational autonomy can be used to shape public policy and law. The traditional conceptualizations that she seeks to modify have produced finely honed legal tools that have provided many people with more protection, support, and degrees of freedom than they formerly enjoyed. The challenge for Nedelsky is to demonstrate that her relational approach can do much of the work already done by arguments of “individual rights,” “privacy,” and clearly demarcated boundaries in cases where individuals make conflicting rights claims or invoke competing core values.
Nedelsky takes up the challenge. She uses several examples to show that relational analysis can produce more nuanced but still enforceable rules. One is the change in Canadian law's criterion for sexual assault from mens rea (the subjective intent to force sexual intercourse upon an unwilling person) to evidence that the accused took reasonable steps to ascertain that a claimant was consenting to sexual contact at the time it occurred. The law shifts the degree of men's impunity and, thereby, the overall power relations between men and women: “The relational analysis leads us . . . out of sterile quandaries about neutrality” by recognizing how the use of mens rea to construct rights in instances of sexual assault perpetuates inequality. “A relational approach always directs attention to context and consequences” (pp. 220–21). Critics say that this entails an abandonment of neutrality; Nedelsky replies that treating dissimilar things and relationships as if they were the same is not neutrality but a prop for inequality.
Policy responses to domestic violence could benefit from similar relational analysis. Current efforts have emphasized everyone's right to be free from physical assault and the state's duty to arrest and punish offenders. Nedelsky readily acknowledges that bringing the power of the state to bear against batterers is better than looking the other way, but arrest and punishment by themselves do not address the structures that encourage violence in the first place: “[A]busive relationships [are] in part caused by the many layers of difficulty of getting out of them: the autonomy-impairing fear and dependency created by the relationship itself; the difficulty of supporting one's kids once one has left; and the increased danger of getting killed, a danger police are not good at preventing” (p. 312). The question “Why didn't she leave?” frames the question as one of individual psychology, when the answer lies in the social and economic structures that surround the partners and, often, their children.
I find Nedelsky's analyses of sexual assault and domestic violence to be powerful examples of how to apply a relational approach to troubled and contentious areas of social policy: first to see the matter more completely and second to frame adequate legal responses. Whether her work will have transformative power will depend on whether policymakers (including academics, activists, lawyers, and judges) follow her lead and “try relational analysis more often, more deeply, and more consistently to see if it yields helpful results—which, of course, I believe it will” (p. 9). The challenge this book poses to its readers is not just to understand Nedelsky's argument but to do the work necessary to change how one perceives the world, and to frame laws that follow from that new vision.
In an effort to meet that challenge, I applied a relational analysis to issues surrounding surrogacy. At present, surrogacy is framed in terms of individual rights, decisional autonomy, and state noninterference with both surrogates and intended parents. A relational approach brings other considerations into view. For example, the embodied experience of the surrogate matters to the complex relationships not only between her and the intended parents, but also between her and the person who will come into being as a result of the surrogacy agreement. As Nedelsky notes: “If the imagined subject of law and rights always had a body, [embodiment] would not stand out as an exception to the rational agent who is the normally imagined rights holder” (pp. 191–92). Surrogacy also entails caregiving by both the intended parents and the surrogate, and law and policy usually ignore caregiving relationships because they construe individuals as fundamentally independent. The larger social context is also relevant, since employment and economic structures make paid pregnancy enticing for some women. Clearly, regulations must be attentive to all such complex relationships if they are to establish the conditions for both reproductive choice and equality.
Nedelsky invites genuine conversation by taking strong stands, deeply engaging liberal philosophy, examining both Canadian and U.S. law, and drawing on her own life experiences. The admirable clarity of her writing renders complex ideas accessible. The book is long, and notable for the number, length, and substance of its endnotes (kudos to the publisher for accommodating them). But I think Nedelsky is right that a general public will welcome “a formal articulation of their sense of the importance of relationships to their lives and values” (p. 5). Law's Relations will be a rich source of inspiration for those who want to understand “the concepts and institutions by which we organize our collective lives” (p. 3) and to shape the practices, institutions, and laws that foster both autonomy and equality.
