Relational Autonomy, Relational Rights:
Alternatives to Core Legal Concepts

By Jennifer Nedelsky

Prof. Jennifer NedelskyMany egalitarian liberals argue that we must pay attention to the conditions for autonomy. My version of relational feminism has a particular approach to these conditions: what makes autonomy possible is not independence, but constructive relationships - with parents, teachers, employers, and the state. Autonomy is neither an aspect of human beings that can simply be posited for the purposes of assigning rights and responsibilities, nor a characteristic that one acquires once one achieves adulthood. It is rather a capacity that can be fostered or undermined throughout one's life.

Legal rights are crucial in shaping the relationships that foster or undermine autonomy. The law shapes not only the foundational parent-child relationships (for example, through law on parental obligation, mandatory schooling, children's rights, custody, access and child support), but the relations between employers and employees. The laws of property define relations of power and responsibility between property owners and other owners and non-owners. Virtually everyone relies on contracts to buy and sell goods and services and is thus involved in relations of power, trust and responsibility constructed by the law.

"Buyer beware" or caveat emptor is a popularly known version of such relations, but more obscure modern doctrines which attempt (or fail to) take account of power imbalances are just as important in constructing these relationships. It is thus vital that legal rights be defined and applied with attention to the way they structure relationships central to autonomy.

But the general public, and even political scientists know too little about the way "private law" of property, contracts and torts shape basic relationships crucial to autonomy, as well as equality and dignity. Within the world of law and political theory, property and contract law have traditionally been thought of as crucial to facilitating autonomy, but without adequate attention to the relationships that foster autonomy and the role of law in shaping them.

This way of thinking about autonomy leads to a fundamental shift in the way we approach questions about the relationship between individuals and the state. The liberal project has been to protect individual autonomy from the intrusion of the state. It has focused on boundaries of rights around individuals, boundaries to keep the state (and others) out. But law affects virtually every aspect of our lives. And in the modern world, people are enmeshed in state authority from public education and health care to securities regulation and welfare. The project cannot be to keep the state out, but to construct the relations with the state so that they are autonomy enhancing. The basic question is how to ensure individual autonomy in the face of collective power. In answering this question we must see interdependence as the central fact of political life, not an issue to be shunted to the periphery. This is the heart of the argument that leads to a reconceptualization of rights and of the scope of the state and the optimal scope of constitutional protection.

One of the particular issues I have addressed is violence against women. Among the uncontested objectives of a liberal regime is the protection of its citizens against violence. Yet liberal states such as Canada have failed in this basic task with respect to women and children. If we take this failure seriously, we must rethink the scope of the liberal state and the conception of rights optimal for making good on liberalism's most basic aspirations. This rethinking comes out of the claim that violence against women cannot be prevented until the relations between men and women are transformed; since these relations are structured by law, the transformation of these social and intimate relations must be an objective of the liberal state. A conception of rights that routinely directs our attention to structures of relationships is better suited to facilitate that transformation than one, like the traditional liberal conception, aimed at protecting boundaries.

In sum, my project is to provide relational alternatives to the core concepts of autonomy and rights, and to show how the new conceptions enable better analysis of legal disputes by revealing the core values that are at stake and how the law can best promote them.

This article was first published in the Spring 2005 issue of Nexus.