Law's Constitution: A Relational Critique

Abstract

It is a simple fact: we begin from others. Without others we, quite literally, could not live, feel, be born. Every mother, every mother's partner, every father, every child, knows this. But law sees these relations as something lesser, as foreign. Mention the word "relationship" to the average lawyer and she will likely assume that you are talking about sex, dating, or perhaps marriage. She may even wonder what "relationship" has to do with the law at all.

In this paper, the author wonders whether it is possible to flip that equation, to think of the relational as central, rather than peripheral, to law's most ambitious public projects. Her hypothesis is two-fold: first, that the relational question is known by, and important to, feminism; and, second, that the relational is important beyond feminism, indeed that it is important to our ideas of constitution and law itself. If this is right, then focusing on relationships is far from the marginal project that it is often assumed to be. Indeed, it may allow feminism to predict new ways of seeing law. The author offers examples from her own legal experience -- in criminal law and constitutional law -- that shows what she calls (for lack of a better term) the "relational critique." What she mean by this is two things: (1) that many of the concepts that we see in law, that seem mundane, natural or given, stand as proxies for normative relations; (2) that by disaggregating the natural object--by seeing relations in naturalized descriptions -- we can see the law creating/ generating/constituting. Put another way, this paper is about thinking relationally — the author wonders whether it is possible or wise to substitute the "relational" question for the "sameness" question or the "difference" question -- not only in cases of concern to feminists but cases elsewhere in the law.

Keywords: feminist theory, legal theory

JEL Classification: K00, K30, K39