Law\u27s 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\u27s 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\u27s 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