This book, which won the 2012 C. B. Macpherson Prize of the Canadian Political Science Association, has an ambitious agenda. Law’s Relations presents a far-reaching and expansive framework for a relational view of law. The first chapter carefully formulates this framework, including a lengthy explanation of what Jennifer Nedelsky means by “relational autonomy” and the “bounded self” and their implications for the way we view law and rights in contemporary societies (with a focus on the United States and Canada). The relational approach is offered as an alternative to liberalism and a response to critics who affirm the values of a liberal order but point to its failure to further egalitarianism.
The overall framework is described with exceptional clarity; in particular, Nedelsky makes clear that she reaffirms the importance of liberal values, the self, autonomy, and rights as the theoretical foundation of a democratic society, but she reframes these concepts into relational terms. In laying out these terms, she draws extensively from the insights of liberal feminism and the more recent influences of disability studies. After introducing her framework, Nedelsky employs these insights to address larger questions about how to balance the interests of individuals and the community and to define limitations on state power. The rest of the book applies the approach to property law, bureaucratic relationships, and violence against women.
One of the most notable aspects of the book is Nedelsky’s mode of intellectual engagement. She sets out to write a work that is of interest to specialists but is also accessible to a general audience. Although she is more successful in reaching the first audience, the book brings the reader into a colloquy with the author. The presentation of ideas predicts the questions that might emerge in a highly engaged classroom discussion and invites this kind of active inquiry while reading. In this manner, the method of analysis is primarily puzzle solving and meticulous consideration of counterexamples. In addition to its unique perspective on law’s relations, a major contribution of this book is its exemplary openness to counterargument and modeling of a “relational” process of inquiry.
Nedelsky directs us to take a closer look at “hard cases,” but not as traditionally defined by jurists as the extreme situation that tests law’s application. Here, hard cases are the value conflicts that emerge in relational contexts and define everyday life in a democratic society. Hard cases harken to the core mission of Nedelsky’s project—to acknowledge the real-world conditions that thwart the creation of equality, and in many cases, the “grim realities of peoples’s lives” (p. 101). The relational approach brings recognition of the consequences of hierarchical relationships on the materialization of rights and justice. In its application, Nedelsky is more attuned to overarching power structures than most relational feminists, for example, by addressing how violence, inequality, and capacity for agency may interfere with the actual performance of autonomy. In fact, most of the “puzzles” that drive the analysis in Law’s Relations are focused on situations, most often facing women, in which the ideal conditions of transformation and creativity are thwarted by intimate violence. The book treats these cases largely as theoretical problems, as opposed to empirical questions about how individuals in a democratic society experience their relationship with the legal order. Consequently, the analysis is often confined to debates between political philosophers and feminist theorists, rather than bringing in the wealth of sociolegal scholarship that has essentially examined law’s relations in citizens’ everyday lives.
A significant portion of the book is devoted to a rethinking of the legal treatment of rape and domestic violence from the perspective of debates between theorists. One of the most insightful sections examines the 1992 changes to Canada’s sexual assault law, in particular, the change in the provisions that replace a conception of consent based upon the intent of the perpetrator with a focus on the actual words and actions of the victim. While the analysis is based upon assumptions about “men’s” violence and women’s patterned responses, it astutely shows that a relational approach (as seen in the application of the new law) dismantles assumptions about “what women want” and necessitates communication to establish consent. Not only does the example neatly describe how legal reforms could be designed based upon a more realistic assessment of the relational context in which they will be employed, but it also illuminates the important role of the law in changing the cultural norms that legitimize sexualized violence.
Nedelsky introduces the reader to a more difficult tangle of ideas when she considers how feminists have disagreed about the role of the state in addressing violence in intimate relationships more generally, including sexual harassment and domestic violence. This disagreement plays out by contrasting two positions on the opposite sides of a feminist anti- and pro-sex continuum, those of Ann Jones and Janet Halley (other theorists are also considered in the process of describing the contrast). Briefly, Jones is characterized as placing a naive faith in the absolute right of women to be free from bodily harm, whereas the discussion of Halley points to her concern that when the state intervenes, it imposes a normalizing standard that in effect punishes unconventional gender performance. While is it fairly clear that Nedelsky’s strongest sympathies lie with creating boundaries (in a relational context) that protect women from destructive sexualities (seeing more danger from men that batter than the law’s intrusion in women and men’s intimate lives), she also appears convinced that a relational project needs to incorporate the value preferences found in Halley’s scholarship. Nedelsky’s objective is to show that a relational approach is expansive enough to support these two very different conceptions of sexual harm and that it has the capacity to foster a sense of openness about values. Her evenhanded discussion of sharply divergent scholarly viewpoints provides an excellent model of the kind of open deliberation of values to which Law’s Relations aspires. However, it is not absolutely clear that the capacity for openness to conflicting values is the best test of the relational approach.
Those who are less receptive to a relational approach to law may be stirred by Nedelsky’s book to consider more demanding tests. For example, Halley’s feminist critique points not only to worries about state intrusion but also to the (informal and relationally constructed) normative frameworks that define good (or nonviolent) and bad (violent) sex. Once uncertainty is created about the cause of intimate “violence” (when it can no longer be simply attributed to the improper display of masculine or feminine gender roles or the violation of boundaries), then we might also lose confidence that “boundedness” and autonomy, whether imposed by rights or discovered relationally, is the cure for intimate violence. The author’s framework is capacious and nuanced enough to be sensitive to this potentiality, but this line of inquiry suggests a more fundamental critique of liberalism than the relational approach offers.
Other concerns arise when imagining how the relational approach is applied under contemporary conditions of antifeminist sentiment and neoliberalism. In terms of the aforementioned feminist debate, Nedelsky imagines that laws might be constructed to promote openness toward differing conceptions of sexuality; this hope seems dim when one examines the evidence concerning how juries make decisions in rape cases. Studies of actual (and hypothetical) jurors show their tendency to ignore the law and make decisions based upon gender stereotypes. Such evidence suggests that making the lives of women safer might depend upon a change in cultural norms rather than attention to law’s relations. Moreover, how do modern democracies create the social conditions that further a relational democracy? This is a particularly difficult question when social and political forces operate in a counterdirection: As corporations use relational techniques as part of management strategies, anti-egalitarian norms grow more pervasive, and voters and politicians are driven by polarized ideologies. These contemporary conditions, however, may make Nedelsky’s thoughtful book all the more important and valuable to scholars and citizens who seek a transformative vision of democracy.
