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Contextual Subjects: Family, State, and Relational Theory (review)

In his book, Robert Leckey sets out to demonstrate that law, at least family law and administrative law, sees and produces “contextual subjects.” According to Leckey, the abstract categories of legal subjects found in earlier family and administrative law decisions have been replaced by subjects who are “rooted in their relationships and social settings” (p. 3). In tracing the judicial path to these contextual subjects, Leckey provides perceptive and rich historical overviews of family and administrative law. There is a lot here to think about and digest, and the book raises hugely interesting questions and makes a valuable contribution to legal theory and history. We focus in this review on Leckey’s conceptions of relational theory (RT) and contextualism, because these are central to his analysis and because this is what got us thinking and talking the most. Leckey’s stated objective is to argue “for the emergence of a new conception of the legal subject using relational theory” (p. 7). While he does use RT, he also critiques it, or at least explores what he perceives as its limitations. While acknowledging RT’s contribution to the development of contextualism, he qualifies his use of RT by making a series of analytical distinctions that raise several questions. In analysing RT’s emphasis on relational autonomy, Leckey first distinguishes between a weak version of RT, in which the fostering of relations through rights remains a descriptive, unspecified objective, and a strong version of RT, in which advocacy for relational autonomy is prescriptive and normative. Whether relational theorists recognize themselves in this analysis or not, it seems to us that relational theory speaks from the start to a normative conception of the individual in the context of social relations. Further, Leckey himself recognizes that the distinction is “unstable” (p. 15). Leckey proceeds to distinguish between contextual methodology and relational autonomy by stating that a “contextual approach can be appropriate for analyzing structural and institutional relations; the normative commitment to promoting relational autonomy cannot be” (p. 19). With its commitment to thick, interdependent relationships, RT is seen as a good fit for family law but not for administrative law. According to Leckey, family law is about relationships; administrative law is about power. In effect, this distinction implicitly reintroduces a division between the public and the private where one would think that the concept of relational autonomy might blur the boundary between the two. 6 Leckey’s position derives from his characterization of RT as mostly concerned with intimacy and interdependence (p. 222–32). Yet, taking