One of the most important contributions of feminist theory is the rethinking of core concepts, such as freedom and autonomy. While the inspiration for this rethinking is often the way traditional concepts fail women, the constructive project of reconstruction routinely goes beyond a focus on the particular significance for women—or gender or sexuality. For example, the canon failed to recognize not only the centrality of care work in women's lives but also the underlying issue of dependence as characteristic of human life (MacIntyre Reference MacIntyre1999). Integrating this dependence into conceptual reformulation has then led to the argument that theories of justice must include the distribution of care work (Kittay Reference Kittay1999) and to the rejection of independence as a key element of autonomy (Nedelsky Reference Nedelsky2011a). Of course, these reconceptualizations have important consequences for women's lives and for our collective understandings of gender and sexuality. But those important consequences are not the focus of every theoretical contribution.

Here, I take up Zerilli's work in Feminism and the Abyss of Freedom (2005). Zerilli is interested in both the theory and the practice of feminism, and in the harm that can be done to each if freedom and the proper pursuits of politics are misunderstood. I admire her exposition of political freedom as Arendt conceived it, and the corresponding rejection of an instrumental approach to politics. In what follows, I use Zerilli's “relations of freedom” to ask whether the relational approach to law that I developed in Law's Relations (2011a) involves, or invites, the instrumental approach that Arendt thought was so dangerous to democratic (and, I would add, feminist) politics. I take this concern to address a wider issue of exactly what noninstrumental should mean, and how it fits with the project of thinking about the relational or institutional “resources” for political freedom. In conclusion, I argue that rejecting instrumentalism involves a radical turn from politics as control, and that such a turn requires a stance of “receptivity.”

When I first read Abyss of Freedom, it helped me make sense of one of the deepest puzzles about Arendt's understanding of politics: her insistent rejection of what she called the “social” as a legitimate object of politics. As Zerilli (Reference Zerilli2005, 2) puts it, “The social question arises wherever it is assumed that classic social welfare problems such as hunger, inequality of wealth, housing, a living wage, and so on are problems that can be solved by political means.” The problem is, of course, that this list seems to capture why most people are interested in politics.

The heart of Zerilli's (and Arendt's) argument is the danger of an instrumental approach to politics, and the ways in which taking “social outcomes” as the objective of politics fosters an instrumental approach. (I think this argument also goes to an interesting split among political theorists: those who think that justice matters most and those who think democracy matters most.) The chief dangers of instrumentalism are a means–ends approach to politics, the reduction of democratic politics to a mere means, and the attendant invitation to rely on “experts” to accomplish the ends.

In our contemporary world, we have a variety of compelling examples of the dangers of trying to do “good” for others (accomplishing important “ends” for them), without their participation in the selection and implementation of those ends. Residential schools for Aboriginal children and certain Third World development projects are evidence of the harm of such instrumentalism. Of course, these projects were never simply benign, but that is really just another manifestation of the inherent danger of doing things for, rather than genuinely with, others. In my mind, these are examples of the problem with giving simple priority over democracy to justice or any other substantive outcome. I think this problem also poses a question about how one does political theory: Should one theorize about justice for any group of people without engaging with them about their own views on the issues? Taking democracy seriously may demand a kind of empirical dimension to theorizing. A law student, distressed by hearing this argument, put it this way: “I am working on prisoners' rights. Does that mean I have to talk to prisoners?”

In rejecting instrumentalism, Zerilli and Arendt treat freedom as the essence of politics. And political freedom is not a right one can “have” without exercising it. It exists in the public space of speech and action. Freedom is relations of freedom and can only exist in political community. I basically agree with them, although I think that there are interesting questions about which other rights related to freedom can be expressed only in these terms. Sometimes, Zerilli qualifies freedom with the word political, but not always. The claim that freedom is relations of freedom and can only exist in political community is not clearly the best formulation for, say, the form of freedom captured by mobility rights—whose purpose sometimes is to flee a particular political community.Footnote ¹

I would, however, expand the scope of the concept of relations of freedom beyond what I think Zerilli explicitly does in her book. I would say that wherever norms are established that shape people's lives, there is a right to participate in the creation of those norms. They could be the norms of religious communities, bookstore collectives (to use one of her examples), and even families. Wherever people gather to collectively discuss the norms that affect their life, public space is created—and thus a form of political freedom. Such a position may give rise to rights-based demands for creating relations of freedom in the “private” space of family, corporation, university, or religious community.

I turn now to whether my relational approach to law is adequately noninstrumental. Of course, one might ask whether it is appropriate to apply the notion of political freedom to law at all. One might say that law is by its nature instrumental, that its purpose is to achieve certain objectives. But one of those objectives is freedom. And many of the relations that both support and constitute the relations of freedom are relations enabled by rights—usually defined and enforced by law.Footnote ² More broadly, although I think that there are some interesting differences between practices one might call adjudication and practices of collective decision making about common goals, they also have a great deal in common. Most importantly for my purposes here, they both involve decisions that structure relations in ways that may foster or undermine core values, including freedom, as well as values such as security and equality.

I am going to use as a focal point my relational approach to rights. Zerilli notes the danger of confusion between having constitutional rights and having political freedom (2005, 127). I see my approach to rights as trying to integrate political freedom directly into the meaning of rights. I emphasize the importance of democratic participation in the definition of rights, and the recognition that all forms of protecting rights involve defining them (Nedelsky Reference Nedelsky2011a, Chap. 6). (This means, among other things, that the widespread use of judicial review as the institutional means for defining and protecting constitutional rights is not adequate.) By focusing on democratic participation in the definition of rights, I embrace a version of rights consistent with Zerilli's claims that rights cannot be understood as existing without contingency. This (controversial) dimension of my approach to rights fits well with hers and with her notion of political freedom generally.

There is, however, another dimension to my approach to rights that at least gives the appearance of instrumentalism. My starting point is that what rights do is structure relations—of trust, responsibility, care, power—and that the core values we care about require structures of relationships that foster them. I argue that the questions one should bring to all debates about rights are those that get at the issue of how different versions of rights will structure relations—including, but not limited to, relations of freedom. The big questions concern how law is currently structuring relations and how this structuring should shift to better foster core values such as freedom and autonomy. I break these big questions down into four specific questions to be applied to any rights debate:

1. 1. How did existing definitions of rights generate the conflict or debate at hand?

2. 2. What values are at stake in the particular conflict, for example, autonomy, political freedom, equality?

3. 3. What structures of relations foster those values; in particular, is there a shift in the existing structure that will better foster the value at stake?

4. 4. Which approach to the right in question will best (or better) foster that structure of relations?

The purpose of this approach to rights is to focus debates on these interconnections between rights, structures of relations, and core values. This means that in choosing between competing interpretations of a right, say, judges (whether in the formal legal sense, or any judging persons) should ask themselves questions about the probable consequences of one interpretation rather than another: How will it structure relations? How will those relations foster or undermine a value? To put it crudely, and deliberately in potential tension with Zerilli, judges are, in this approach, trying to shape outcomes in the sense of trying to promote relations that foster core values—including relations of freedom. Is this instrumental in the sense that Arendt and Zerilli reject? If so, then is this relational approach saved by the insistence on democratic participation in rights definitions?

Part of the point of this approach is to highlight the ways that legal rights inevitably have an effect on the structure of relations. There is no way to simply step away from law or rights out of a rejection of instrumentalism. One's actions either sustain the existing structures or change them. And all law structures relations, including the basic terms of “the market,” property, and contract, so that one cannot get around this problem by trying to avoid the kinds of law that appear more overtly coercive. Of course, law is not the only thing that structures relations, but state-enforced law has a powerful effect on many different relations. And some structures of relations undermine relations of freedom, while others support them.

The relational approach I propose is intended to bring to light all the ways that law is already structuring relations, often in suboptimal ways. By focusing on the way in which law and rights structure relations, one can bring a kind of dynamic approach to these questions that avoids the idea of rights as something reified that one can simply “have” as an individual. Rights structure relations, and one cannot enjoy rights without the structures of relations that constitute freedom, security, or equality. Thus, the relational inquiry I advocate is very close to Zerilli's “relations of freedom” even though it requires forms of predictive inquiry.

The problem of instrumentalism and any approach to law is that law is obviously not only about promoting relations of freedom, whereas Zerilli is prepared to say that freedom, political freedom, is what politics is all about. Defining it in terms of objectives other than freedom risks instrumentalism. Actually, I believe that she (like Arendt with respect to the “social”) thinks that it not just risks but entails instrumentalism. I want to acknowledge that my relational approach to rights and law risks instrumentalism, but also insist that it can resist the deep instrumentalism that characterizes contemporary approaches to law (as well as politics), especially when combined with attention to receptivity.

First, however, I return to the question of whether any risks of instrumentalism can be saved by my insistence on democratic participation in the definition of rights. The answer is: partly. An insistence on the democratization of the law and rights is an important move in the direction of political freedom. Too much of what shapes the structures of relations that we live in is determined in the legal realm, which is deeply insulated from democratic participation and even discussion. If the definition of rights is seen, as it should be seen, as a form of collective decision making about common values, then that expands the scope of public space, the creation of forums that can be characterized by political freedom.Footnote ³

This is not a complete answer, however. The question of who makes decisions is not a substitute for how they make them. As we know, “democratic” legislatures can treat politics in a highly instrumental way. If all that happened were that similar sorts of institutions were set up to deliberate about rights, but they did it in a highly instrumental way, turning to experts and excluding public debate, then the creation of public space and political freedom I just invoked would not happen.

Restated, this is a concern about a politics of control. The rejection of the aspiration to control is at the heart of Arendt's radical conception of politics and Zerilli's relations of freedom. The concern particular to my relational approach is how deeply one can appreciate contingency and avoid a stance of control while engaging in a constant effort to predict how an interpretation of a contested right will shift the existing structure of relations, and how that shift will foster or undermine the core values at stake. Prediction, assessment of probable effects, is necessary but control is not, even if the former is often in service of the latter. Engagement with the impact of legal decisions on structures of relations is consistent with a recognition of the inherent limits of prediction and a rejection of control.

The broader question is how the embrace of political freedom that Arendt and Zerilli advocate can ever happen without a shift in the wider culture of control. Patterns of control are so deep in the culture (as is an instrumental view of politics) that it is hard to picture an effective shift to freedom-focused politics without an inner shift away from control. Both the Left and Right seem to fall equally into the stance of politics for the purpose of “making” things happen, making people shift their behavior in various ways. Elsewhere, I argue for the importance of a stance of receptivity for good judgment (Nedelsky Reference Nedelsky2011b). I use mindfulness as an example of receptivity. Mindfulness—formal meditation leading to everyday habits—is a practice of nonjudgmental, focused attention on what is happening in the present moment. This practice can shift habits of control, invite a recognition of contingency, and dispel preconceptions. Arendt talks about the last as one of the primary purposes of judgment, which is essential to politics, and treats political freedom as requiring an acceptance of contingency and a rejection of control. Mindfulness reveals that a rejection of control does not entail passivity before injustice or other wrongdoing. It invites a different relation to action in the world.

Thus, a genuine embrace of contingency and unpredictability, and a willingness to turn away from control as the default stance toward the world and others, are necessary if a commitment to Arendtian freedom is to replace the current instrumentalism of both politics and law. My relational approach to law is consistent with such a shift, and can foster it if combined with the cultivation of receptivity.Footnote ⁴ This will require “work on ourselves” (Kompridis Reference Kompridis2011), as well as attention to the collective forms that relations of freedom can take.Footnote ⁵