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79 Va. L. Rev. 1515 (1993)
Reason, Tradition, and Family Law: A Comment on Social Constructionism

handle is hein.journals/valr79 and id is 1525 raw text is: REASON, TRADITION, AND FAMILY LAW: A COMMENT ON SOCIAL CONSTRUCTIONISM Milton C. Regan, Jr. * INTRODUCTION pROFESSOR Eskridge has offered us an impressive survey of the diversity of social practices over time and space relating to same- sex relationships. As he suggests, his piece can be seen as an example of a social constructionist approach both to the institution of marriage and, more broadly, to the myriad ways in which culture validates inti- mate relationships. It emphasizes that marriage is a human artifact rather than simply a timeless natural phenomenon with its own independent internal dynamic. This focus on human agency under- scores the contingency of conceptions of sexuality and the family, and highlights the exercise of social power as an important element in the emergence and maintenance of such conceptions. The message is that things could have been, and still can be, different. As a result, we may now glimpse possibilities for change in the face of what previously had seemed intractable necessity.' I want to suggest in this Comment that there are at least two differ- ent ways to conceptualize the critique that social constructionism levies and the rhetorical openings that it creates. One approach is what I will call social constructionism as Enlightenment critique. This approach sees itself as vindicating universal principles of reason over the unreflective attachments of local tradition.2 A second * Associate Professor of Law, Georgetown University Law Center. I would like to thank Anita Allen, Jules Coleman, and Robin West for helping me clarify the ideas expressed in this essay. I For other examples of a social constructionist approach to sexuality and intimate life, see Forms of Desire: Sexual Orientation and the Social Constructionist Controversy (Edward Stein ed., 1990); 1 Michel Foucault, The History of Sexuality (Robert Hurley trans., Pantheon Books 1978) (1976); 2-3 Michel Foucault, The History of Sexuality (Robert Hurley trans., Pantheon Books 1985-86) (1984); Thomas Laqueur, Making Sex: Body and Gender from the Greeks to Freud (1990). 2 Although this does not describe the position of all who might be considered Enlightenment thinkers (David Hume, for instance, is an important exception), it generally is taken as the most prominent and characteristic strand of Enlightenment thought. See, e.g., Jurgen Habermas, Modernity-An Incomplete Project, in The Anti-Aesthetic: Essays on 1515

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