The Relational Self: Some Thoughts From the Perspective of Dutch Constitutional Law

In this contribution, I wish to make a few remarks about the relational self and constitutional law. What potential does a relational approach to law, including notions of care, have for constitutional law, and in particular the Dutch constitutional order? But also, what potential pitfalls should we be wary of, especially in times of increasing autocratization?

The Dutch constitution is old, it dates back to the beginning of the 19^th century. It is quite short and sober, lacking symbolic language referring to ‘We, the people’ or underlying values, and we have not been able to change that over the course of time.¹ In fact, the general revision of the Constitution of 1983, has emphasized the role of the legislator and its primacy, also when it comes to interpreting and filling in the blank spots of our Constitution. Indeed, one of the traditional characteristics of the Dutch Constitution is its prohibition of constitutional review, laid down in Article 120. This provision bars courts from assessing the constitutionality of Acts of Parliament, as well as whether these are in line with general principles of law or the procedures listed in the Constitution.

In any case, the Dutch Constitution cannot be seen as an exemplar of what we call ‘care constitutionalism’. This form of constitutionalism is linked to the idea of the relational self and that has been gained some attention in the international constitutional debate over the years.² In my inaugural address, which I gave in April 2023, with the title Fundamental Rights, Fundamental Trust, and the Relational Constitution, I drew attention to this idea.³ As I argued, despite its history, our Constitution perhaps could draw some inspiration from notions of care constitutionalism. Or at least come to include more evidence of the fact that individuals are not just autonomous beings, but determined by their relations.

In explaining this, I build on the work of Jennifer Nedelsky, also mentioned in Herring’s work.⁴

Nedelsky writes: “I see a close link between the failure to take dependency and care seriously and the traditional ‘subject’ of legal and political thought who is abstracted away from his embodied state”.⁵

Relationships of (in)equality, power, care or trust form a central part of people’s lives; they influence who we are and what capacities we have. The law structures these relationships in one way or another; if it takes more account of this, it can in turn also contribute to more autonomy and freedom.

In constitutional law, as well, a relational perspective can be used to understand and assess the collective choices that underlie fundamental rights and the laws that potentially are at odds with them. Relational law blurs the line between the public and the private. In this respect asking what political equality can achieve is not enough. The question of which social and economic relationships are necessary to guarantee values such as human dignity, freedom, equality and security is at least as important.

Now, how exactly is this relevant, for the Dutch Constitution in particular? Besides and linked to this constitution’s prohibition of constitutional review, one of the specific characteristics of its fundamental rights catalogue is that the limitation clauses included there emphasize formal requirements for limitation of rights. The main requirement is that limitations are laid down in Acts of Parliament or based upon these. For starters, the fact that it is possible for rights to be limited for purposes of the general interest, can be seen as something relational. In the sense that individual rights and autonomy are not considered sacrosanct but may need to give way to competing interests. However, the focus on formal requirements (a majority in Parliament needs to agree with the proposed limitation while no explicit requirement of proportionality or the like is included) means that political equality is emphasized over other forms.

However, relying on majority decision making can hardly be enough, and the lack of an explicit proportionality requirement is a shortcoming from a more relational perspective. Such a requirement would demand that we look beyond the one freedom the legislator at current might want to limit and whether it meets the formal requirements to do so. It demands space for the rights and interests of others, not least potential social rights involved, and for shaping the relationships that characterize our shared collective freedom.⁶

I have already mentioned the notion of care constitutionalism, as for example explained in the work of Julie Suk or Jaclyn Neo; Neo in this respect discusses how constitutional law should be reconsidered in light of the lessons learned from the pandemic, which resulted in the perpetuation and exacerbation of inequalities. The constitutionalisation of ‘care’ requires a shift in attention from ‘hard’ topics such as emergency powers to more ‘soft’ themes such as social security and childcare. In the Netherlands, the latter topics are generally not considered to be of a constitutional nature. Even though constitutional social rights are listed in the Constitution, these are phrased as a general duty of care of the State. This should invite the State to explicitly take up that duty and clarify what they understand the various social rights to mean. Instead, however, the vagueness of the norms involved (and the lack of constitutional review⁷) rather seems reason not to engage much with these norms at all.

Against the background of the idea of care constitutionalism, I hence at first very much applauded the official proposal – dating from 2023 – for including in the Dutch constitution a right to respect for family life.⁸ Although there is a right privacy and to a ‘personal sphere’ in our Constitution, no mention is made of the family or other more relational concepts. Looking back at the Dutch Toeslagenaffaire (Childcare Benefits Scandal), which has caused harm to thousands of parents, kids, to families and their relationships, the proposal moreover has a clear socio-economic component, emphasizing the role of the legislator to take care of families.

So far, so good. The reason I have become less enthusiastic about the proposal over time, first of all has to do with the following. The Dutch Council of State, which advises on proposals for Parliamentary Acts and acts revising the Constitution, is critical about the proposal for a number of reasons.⁹ For example, it is unclear what the social dimension of the proposed right is meant to entail, and the limitation clause included is phrased in a very narrow way, only allowing certain interests to justify a limitation. The main point of critique, however, is that the proposal seems to refer to the family narrowly understood. That is, parents and their – primarily – minor children. This is a more limited understanding than that of family relations in for example the European Convention of Human Rights. The explanation to the proposal at some point even speaks of the ‘nuclear family’, which according to the reformed Christian party of the first submitter of the proposal, should not even include parents of a different gender.

In the meantime, the language of the proposal has been altered to include a more inclusive notion of the ‘family’.¹⁰ My sensitivity to this point, and this will probably not come as a surprise, has increased recently now that radical right wing parties and authoritarian leaders tend to emphasize traditional family values and promote cultural-conservative ideals that on social media take the form of trad wives and Andrew Tate-like figures, as well as AI-generated images of blond families. The Alternative für Deutschland, ranked second after the recent German elections, has already proposed in several Bundesländer that having children should be promoted by giving the heterosexual nuclear family €10,000 per child.¹¹

I have nothing against the nuclear family, to which I devoted a recent editorial in the Nederlands Juristenblad.¹² I am worried about the traditional stereotypes of the roles and tasks of in particular women that might be brought into the Constitution as trojan horses. ‘We take care of the family’ should not come to mean ‘we take care of your family relationships as long as they resemble the way we want them to look.’ This indeed resembles the essentialist critique on arguments of authors like Suk who emphasize the need for protecting women in light of the ongoing over empowerment and entitlement of men, in her book After Misogyny.¹³

Now I will end on a hopeful note. Because the worry I described cannot at the same time be reason to ‘throw out the baby with the bath water’. I think what Herring’s work also importantly illustrates, is that the vulnerability and interdependence that underpin our relationships, may also lead to exploitation and wrongs. Yes, we can protect relations as such, in constitutions or elsewhere. But we just as much need protection against harmful relations, and against harmful stereotypes related thereto. Yet that also is part of the project of thinking about law from the perspective of the relational self. As this provides a possible way out of the abyss we are currently heading into, I am thankful to Herring for emphasizing this point in particular.