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Contextual Subjects

Contextual Subjects: Family, State, and Relational Theory

Copyright Date: 2008
Pages: 368
  • Book Info
    Contextual Subjects
    Book Description:

    Law and legal discourse both presuppose and produce legal subjects. Views on the nature of the legal subject will constantly shift, therefore, with changes in the law.Contextual Subjectsargues that a new view of the legal subject has indeed emerged and that it is now embedded in the social context and relationships. This claim is developed through a contrast of Canadian family law and administrative law as it was in the mid-twentieth century and as it is today.

    Robert Leckey argues that it is not only the subject that is contextual. Legal discourse and adjudication have also become more contextual, making family law and administrative law themselves contextual subjects. Leckey bolsters this argument through the use of relational theory, a rich strand of feminist political theory that advocates a contextual method and seeks to promote constructive relationships that enable relational autonomy. Developments in family law and administrative law, therefore, exemplify the contextualism called for by relational theorists. Leckey points to the importance of contextualization, but he is not uncritical of relational theory, insisting that it should articulate more forcefully its normative vision of good relationships and offer clear recommendations in contested areas.

    Contextual Subjectsis the most thorough and sustained application of relational theory to legal examples to appear to date. It is unique in Canadian legal scholarship for the way it pairs family law and administrative law, and within legal scholarship in English for its integration of common law and civil law.

    eISBN: 978-1-4426-8774-5
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. 1 Introduction
    (pp. 3-28)

    Who is the legal subject? Who or what thinks about and produces law? To what subject does law speak? How do legislatures and judges understand the human beings whom they seek to regulate? And to the extent that one ascribes constitutive power to law, what subjects does law produce? What forms of being does law promote? What does law make visible, and conversely, what subjectivities does law occlude and efface? Which legal subjects are unspeakable, even unthinkable?

    This book’s short answer, shorn of nuance and definitions, denuded of examples, restrictions, and caveats, is that law has come to suppose and...


    • 2 Thick Subjects in the Past
      (pp. 31-64)

      Family law in the mid-twentieth century poses a paradox for relational theorists. They know they do not like it. The law sanctioned women’s adultery more harshly than men’s. Illegitimate children suffered for their parents’ immoral conduct. In Quebec, matters were worse. Under the long reign of the nineteenth-century civil code, married women did not even have civil rights. From today’s perspective, family law fifty years ago is a shop of horrors, inconsistent with relational theory’s vision of promoting relational autonomy, especially for women. But relational theory’s ‘relational inquiry’ does not help target the problems.

      Family law’s subjects were thickly embedded...

    • 3 Contextual Subjects in the Present
      (pp. 65-101)

      This chapter turns to developments in family law over the past thirty years. My argument is that contemporary family law substantially reflects relational theory’s elements. Family law appears to accept relational theory’s descriptive premise of the socially constituted self. It manifests normative commitments to thick, interdependent, autonomy-enhancing relationships, irrespective of their inscription as legitimate or illegitimate. Most notably, legislatures, judges, and scholars have adopted a method of contextualism. The view taken of subjects is much more particular and fact-specific than previously. The effect is to constitute legal subjects as embedded in social and institutional contexts that have become legally relevant...

    • 4 Contracting and Disputes within Relational Theory
      (pp. 102-138)

      ‘The best sort of love between persons,’ remarks Martha Nussbaum, ‘is highly vulnerable to happenings in the world’ (1986, 359). So, it turns out, are the agreements that people once in love conclude with each other. This chapter engages with instances of formal ordering that seek to curtail the extent of relational obligation and interdependence. My starting point is three judgments from the Supreme Court of Canada that increased the weight accorded to private ordering in adult intimate relationships. The judgments treat a separation agreement, a prenuptial agreement, and a cohabiting couple’s failure to marry. The majority enforced the two...


    • 5 Thin Subjects in the Past
      (pp. 141-174)

      Legal historians and administrative lawyers tell at least two different stories about the administrative state in the twentieth century. What might be called the classic account relates that the minimalist government of the previous century gave way to the administrative state. Legislatures transferred the authority to determine classes of claims, such as tort actions by injured workers, from the common law courts to specialized boards (Risk 1983). The objectives for doing so included achieving a higher volume of processing at a lesser cost and confiding the decision-making power to tribunal members who would be less sympathetic than ordinary judges to...

    • 6 Contextualism Emerges
      (pp. 175-208)

      Scholars have not thoroughly explored the connections between the contextual methodology that has emerged within Canadian administrative law and the contextualism promoted by relational theorists and other strands of feminism. In what may be the only essay to examine Canadian administrative law from an explicitly feminist perspective, Alison Harvison Young suggests that the language of ‘contextualisation’ turns out not to indicate deep connections with feminism (1997, 333–4). I am less sure that this is the case. Her essay addresses mainly one level of contextualism, the propensity on the part of courts to regard administrative agencies contextually or, as Harvison...

    • 7 Administration and Relational Norms
      (pp. 209-244)

      This chapter investigates the appropriateness of relational theory’s normative commitments in administrative law. The objective is to understand better both administrative law and relational theory. I engage here with several authors who argue for the appropriateness of relational theory’s normative commitments to the broader canvas of administrative law. Joel Handler describes the effect of the administrative state on the relationships of individuals with one another and with the state, arguing that what characterizes the administrative state is relationships of interdependence. He offers an aspiration of dialogical and communitarian engagement between bureaucrats and citizens (1986; 1990; 1988; 1985; 1983). Jennifer Nedelsky...

    • 8 Conclusion
      (pp. 245-278)

      This book has argued for the emergence of a new view of legal subjects in family law and administrative law. In both fields, legislative, judicial, and scholarly practices now constitutecontextual subjects. That is, these legal fields reflect the contextual subject that has emerged in what some call ‘post-liberal theory’ (Reece 2003, 13). In another sense, the book also claims that family law and administrative law are now themselves contextual subjects. Family law and administrative law have adopted a methodology of contextualism. I have made these arguments using relational theory. In turn, I have also used these substantive fields of...

  7. Notes
    (pp. 279-300)
  8. Works Cited
    (pp. 301-330)
  9. Cases
    (pp. 331-336)
  10. Legislation
    (pp. 337-338)
  11. Index
    (pp. 339-355)