One of the fun things about education is that you get all sorts of fun new toys, ideas that magically seem to cut through all sorts of Gordian knots and whose mere invocation has occult intellectual powers that liberate one from previous difficulties. One of the favorite toys that people acquire is the idea that a trait or characteristic is “socially constructed.” The bad news is that this concept is not nearly as powerful as most of those who conjure with it assume.
In Mormon discussions it shows up most frequently in discussions of gender (see, e.g., this discussion), but it is so shiny and appealing an idea that one can apply it to all sorts of other issues, from property to race to disability. Most often it shows up when someone tries to draw a normative inference from some trait. Our toy is then invoked to defeat the supposed inference, by showing that the trait in question is “socially constructed.” It is also invoked against any defense of current practice or conditions, which one can always delegitimize by pointing out that they are “socially constructed.” In short, it is a sleek, progressive category that allows one to impress friends, defeat opponents, and demonstrate one’s understanding of the contingent and irony-drenched dynamics of the human condition. It’s very cool.
Essentialism is the mistake social construction is conjured to dismiss. This is the monstrous belief that traits or social arrangements reflected unchanging essences. Obviously, if some trait or arrangement, however, is merely a matter of convention — socially constructed — then essentialism is a mistake that can neither explain nor justify. Essentialism is extremely important if we are to have any fun at all with the concept of social construction. If we can find it lurking below the surface of every distasteful assertion, then we can always pull out social construction to send it reeling back into the abyss where troglodytes lurk and serious thought need not tread.
I actually don’t have much of a brief for essentialism. After all, I am a lawyer. I spend my life swimming — nay drowning — in the conventional. For me property, marriage, contract, and personhood itself are so many rules and agreements, and they shift from jurisdiction to jurisdiction. Indeed, it is precisely the fact that — for example — ownership means something different in Missouri than in Iowa that lets my employer charge clients large amount of money to move their dispute over property from one state to the other. Of course, one could respond that beneath the conventions there is a hard kernel of essences, and indeed it is these essence that justify — or criticize — the conventions. For all I know this may be right, but it is not my point.
Rather, my point is that the two most frequently drawn implications from the idea of social construction are wrong. The first implication is that which is socially constructed is prima facie illegitimate. The second implication is that which is socially constructed can be reconstructed along lines of our choosing. The law provides ready refutations of both claims. Take, for example, the idea of property. Most of what is contained in our ideas of ownership is conventional. Furthermore, in actual fact — i.e. in the actual operation of the legal system — the obligations and rights fixed by ownership vary a great deal from place to place and from one era to the next. In short, property is a made thing, a human institution created by norms and conventions that can and do change. It hardly follows from this, however, that property and the welter of rules that give it substance are unjustified. We can offer all sorts of reasons, for example, of why two kinds of wrongs against property — nuisance and trespass — are treated differently that really have nothing to do with the claims of essentialism. Furthermore, we can evaluate the power of these offered reasons without reference to essences.
Property also provides a good example of why one cannot imply the desirability (or even feasibility) of rational reconstruction from the fact of social construction. It would be a grave mistake to suppose that the conventional basis of property means that it can be recast into whatever form we might wish it to take, a fact abundantly testified to by the mountains of corpses piled up by Stalin, Mao, and Pol Pot. The fact that something is conventional, that it is made by human beings, does not mean that it can be easily unmade or remade by human beings. Life and society is too complicated for that, and the emergent power of this complexity must, in decency, restrain us at times if we are not to have our consciences stained by the evil of unintended consequences.
The irony, of course, is that given its conservative roots the idea of social construction has generally been appropriated for progressive ends. Edmund Burke is as good a candidate for the role of prophet of social construction. In reaction to the rationalism of the French revolution that confidently sought social reconstruction, Burke argued that society was indeed a made thing, a web of conventions created by human beings, and having a long history of change and development. Yet this was precisely what made the French philosphes mistaken in Burke’s view. Human conventions are like a complex ecosystem that we tamper with at our peril. Although he is not explicit on the point, I can’t think it accidental that Burke was trained as a lawyer. His 18th-century legal education would contained large doses of Coke, Hale, and Seldon, the great historical jurisprudes of the 17th-century. Coke famously argued that the common law was a kind of “artificial reason,” that is a set of conventional solutions to social problems evolved over a long period and containing a wisdom that could not be reduced to “natural reason,” i.e. essential, ahistorical rationality.
Burke, of course, went too far. He argued that social conventions contained the accumulated wisdom of the ages that by definition could not be grasped rationally. The problem is that on this view our very ignorance of a things justification can be taken as evidence of its legitimacy. The result is that we have no way of distinguishing between the ineffable wisdom of the ages, and silliness that just has the good fortune of being old. The problem is really thorny, however, because Burke is also clearly right. The conventional can be an ineffable incarnation of the ages. Whatever else this paradox shows, it demonstrates the vacuousness of most invocations of the idea of “social construction.” It is a toy that simply doesn’t have the magical powers that its devotees assume.