- Review Essay: The Liberal Legal Individual Accused: The Relational Case
We can think of human beings as discrete individuals, fully independent of one another and preferring it that way, because others cause worry: they pose a threat to property and personal security. Such nervous, self-isolating beings need law to keep others at bay. They do best—are most autonomous, even happy—when left to their own devices. This way of thinking about persons may seem quite natural because it has been so influential in our Western liberal legal and political tradition. However, it creates a caricature of real life, because no one can survive without nurture, and humans, like other animals, cannot reproduce without intimate contact. The fully independent individual is a Weberian ideal type;1 it does not capture, or seek to capture, the complex truths of the human condition. And yet, it does orientate our thinking about persons, and it does so in a manner with which lawyers, in particular, will be familiar. It directs our attention to certain human purposes and needs (among them, protection from the unwanted advances of others) and it underplays others (notably, love and care).
We can also think of human beings as inseparable from their relations. The guiding idea is that we are formed through relations—the mother-child bond provides an obvious one—, and that we move through life within, and more importantly as, a great shifting constellation of relations. Within relations we become what we are as persons; here, we must make sense of our lives, which in turn must be understood by scholars who wish to explain us. There is never a full separation between persons, and indeed, human beings draw their very identity from their relations. When they work well, relations are not only formative (and unavoidable) but also conducive to human autonomy and to the flourishing of the individual. It follows that the role of law is to regulate relations rather than to ward them off. Law’s job is to ensure that they run smoothly and that they neither oppress nor harm us. [End Page 123]
The avowed purpose of the two books under review is to shift our way of thinking about what it is to be human. The authors seek to change our orientation and redirect our focus, from the individual as the center of analysis and meaning and action, to the relations that make possible the human being and provide the opportunities for sense, meaning, and freedom or un-freedom. We cannot be understood, they say, apart from our relations. They want to make us see the deficiencies of individualism and the benefits of relational theory. How do they attempt to do this, and do they convince?
Jennifer Nedelsky, a relational theorist working in the adjacent fields of law and philosophy, has sustained and developed her ideas over a long and distinguished career. In Law’s Relations, her declared purpose “is to advance a shift of presumption about the self and its core values so that a relational perspective becomes a routine part of theorizing about justice, equality, dignity, security, or autonomy” (p. 9).
Nedelsky’s title signals the concern of her book: it is law’s relations. Law, she says, institutionalizes an individualistic understanding of the person. She wishes to replace the prevailing “habits of individualistic thought” with “habits of relational thought” (p. 25) and to do so “in everyday conversation, in scholarship, in policy making, and in legal interpretation” (p. 4). She hopes to speak to abroad audience, “simultaneously to lawyers, judges, legal scholars, and the engaged, non-academic public” (p. 11). However, most of her examples come from North America, and her interest lies in “Anglo-American liberalism” (p. 11).
In her first main chapter, Nedelsky locates her target: the liberal “self,” which she says is best characterized by the idea of boundary. According to...