Introduction[i]

Contemporary liberal theories of justice have been rightly criticized for their approaches to both private and systemic relations of care. First, liberal theories have either neglected private care relations altogether by implicitly or explicitly delegating them to the “man’s castle”, or if they do not neglect them, they have failed to deal with the inherent (inter)dependency, asymmetry and particularity constitutive of these relations. Second, with respect to systemic care relations, liberal theories have been shown unable properly to address the systemic asymmetry and dependency constitutive of care workers’ and care receivers’ conditions. Over the last three decades, what is now called the ‘care tradition’ has been central to identifying these problems in liberal theories. Despite the care tradition’s important contributions to this debate, in this paper I argue that its current representatives also fail to address adequately the very problems their tradition has correctly identified. Indeed, they actually reproduce similar problems in their own accounts. The reason is that like much liberal theory the care tradition argues from two assumptions: 1.) that ideally good caring relations require only virtuous private individuals, and 2.) that, consequently, the role of the state is merely to remedy some individuals’ vices by protecting all individuals’ rights. But as long as theories argue within the parameters set by these two assumptions, there is no way to generate the kinds of institutional structures necessary to ensure rightful care relations both systemically and in private homes. Though Kant has been a central target of much of the criticism from care theorists, I argue that his liberal position actually provides a way to resolve these problems and hence a way forward for care theory.

In the first part of the paper, I challenge the first assumption that good care requires only virtuous private individuals by using Kant’s account of private right to critique Virginia Held’s recent care theory. I argue that unless Held gives up the assumption that good care requires only virtuous private individuals, it isn’t possible to take sufficiently seriously the (inter)dependency, asymmetry, and particularity constitutive of private care relations. There are ideal reasons why the state must posit, apply and enforce rules governing so-called private care relations, which entails that the establishment of the state is constitutive of good caring relations. Therefore, contrary to Held’s recent claim that care is prior to justice, rightful care is in important ways prior to virtuous care.

In the second part of the paper, I turn to issues of systemic justice by challenging the second core assumption shared by much liberal theory and care theory, namely that the state’s fundamental function is merely to remedy some individuals’ vices by protecting individuals’ rights against one another. I challenge this view by critiquing Eva Kittay’s application of a Rawlsian conception of systemic justice to care relations. Contra Kittay, I argue that the stronger interpretation of Rawls’s theory sees systemic justice as an account of the principles constitutive of public right rather than private right, meaning that it identifies citizens’ claims on their public institutions rather than their claims against one another as private individuals. Although recognizing this aspect of Rawls’s theory should be seen as an important step forward in care theory, I argue that it is not enough. Rightful care relations also require the supplement of an account of private right similar to the one outlined in my Kantian critique of Held in the first section of the paper. The full account of rightful care, therefore, comprises both an account of private right (private persons’ rights vis a vis each other) and public right (the rights of citizens on the state’s basic institutional structures).[ii] Thus, the full normative account of care relations requires three components: accounts of both private and public right with regard to care relations as well as an account of virtuous care relations.[iii] None of these accounts is reducible to any of the others, but together they provide for good relations of care.

1. Care as Prior to Justice: A Kantian Critique of Held’s Conception of Private Care Relations

Justice, Held argues, is concerned with assurance of equality, fairness, freedom, voluntary autonomous choices, consistent application of abstract and universal laws – in short, the area of individual rights to freedom and equality[iv]. Care, in contrast, is seen as “a practice” made up of relations of inequality, dependence and interdependence.[v] Moreover, the practice of care concerns the work of care giving;[vi] it’s the sphere of “social bonds and cooperation” constituted by “relations between particular persons with their particular needs”.[vii] Held also emphasizes that the sphere of care both limits the pursuit of self-interest on the part of caregivers[viii] and is one in which “persons respond… with sensitivity to the needs of particular others with whom they share interests”.[ix] Caregivers constituted in this way, she continues, have the appropriate emotions,[x] as well as the right moral motivation, that is the caring motivation. Virtuous caregivers perform caring activities because they care for their particular care-receivers.[xi]

Since both justice and care are seen as essential values for any moral theory and since feminism has “enabled us to see that these are different values”, a crucial challenge for care theory concerns how to ‘mesh’ them in the right way.[xii] In other words, how do justice and care work together? Held’s suggestion is that we should consider care as providing the framework within which justice operates: care is prior to justice. It’s seen as prior to justice in a causal, moral, epistemological and metaphysical sense. Care is prior to justice in the causal sense because to become independent, autonomous persons capable of the kind of impartiality that theories of justice traditionally have taken as the moral subject, persons must have first experienced being cared for well.[xiii] Care is morally prior to justice because care is the more fundamental value, meaning that it provides the framework within which justice should be pursued.[xiv] That care is causally and morally prior to justice, Held continues, is seen also by how good caring relations can exist and actually have existed prior to justice, whereas justice cannot and never has existed prior to care.[xv] Finally, with Michael Sandel,[xvi] Held argues that care is epistemologically and metaphysically prior to justice, since insofar as human beings are persons they are relational and interdependent. Persons know themselves first as participants in caring relations, and care relations, it’s argued, are constitutive of persons rather than relations engaged in once one already is a person.[xvii]

For these reasons Held argues that though the perspective of justice enables useful abstractions for the analysis of certain areas of moral life,[xviii] primarily law, we should resist the ‘imperialistic’ expansion of legalism to cover all areas of life.[xix] Instead, justice should be applied within the wider framework as set by the perspective of care, and justice should have priority only in the more limited moral sphere essentially constituted by individuals’ rights and their assurance.[xx] In contrast, in the sphere of care, such as the sphere of ‘children’, ‘family’ and ‘friends’, “priority should be given to expansive care, though the basic requirements of justice surely should also be met”.[xxi] Justice has the important job of protecting the vulnerable from abusive caregivers, of enabling individuality and of eliminating oppressive domination in caring relations. Still, the most important thing in, for example, a kindergarten, Held argues, is “the safeguarding and appropriate development of children, including meeting their emotional as well as physical and educational needs” – or care.[xxii] This doesn’t mean that considerations of justice are unimportant in kindergartens. For example, there should be no tolerance for racial and ethnic discrimination with regard to or amongst the children. Nevertheless, the “primary” aim of disallowing discrimination would be the provision of care rather “exemplifying justice” (ibid.).[xxiii] Thus justice and care should complement each other.[xxiv]

It’s important to emphasize that Held doesn’t believe that all justifiable uses of coercion should be analyzed in terms of justice and rights. She emphasizes several times that caring persons will use coercion to deal with conflicts they incur in their care relations.[xxv] For example, parents, rather than courts of law, punish their children.[xxvi] Given that care relations involve coercion, Held considers it of utmost importance that objective standards of care are developed for application when conflicts arise.[xxvii] Examples of such objective standards include mutual respect and the empowerment of the dependent.[xxviii] To realize these standards in care relations, Held appeals to a revised version of hypothetical consent, namely one appropriate for non-autonomous care-receivers. Obtaining the right perspective on behalf of non-autonomous care-receivers requires imagining what we would agree to if we were children.[xxix]

Held provides examples to illustrate the approach outlined above. In one case,[xxx] she suggests that a suitable policy of justice is one according to which families must recognize that all their children have equal rights to nourishment, education and freedom. Nevertheless, the realization of these rights should be sought in a caring way, meaning that if possible, they should be protected without destroying the caring relations of the family. For example, if the father fails to respect his child’s rights, then the child rightly refuses to accept the father’s behaviour. But if possible the child should work within the family relation to restore proper behaviour on the part of the father. Of course, in cases of a severe violation of rights, such as serious abuse, the abused is correct in refusing the relationship altogether. In less dramatic scenarios, he is right to refuse the relationship as it stands, but should stay and work on the relationship from within.[xxxi]

Why, then, is this conception of care so problematic? First, it presupposes that the non-autonomous care-receivers are capable of the moral autonomy they per definition are incapable of. In the example just mentioned, Held appeals to the rights and duties of children towards their parents. The children are seen as recognizing rights and are asked to resolve conflicts in a “caring way”. But presumably, as children, they are per definition incapable of such moral responsibilities.[xxxii] Held may respond by saying that she doesn’t mean that children should actually recognize their rights and obligations. Rather, what she is after is an application of objective standards of care by adults external to the relation; how they must reason in order to establish whether or not to intervene. The problem with this solution is that it fails to explain how the particular relationship between the child and the parent itself can be made rightful. At most it explains only how a different relation might be rightful – namely the relation between the intervener and the original people in the relationship.[xxxiii],[xxxiv]

A second problem with Held’s view that care is prior to and independent of justice concerns the claim that the coercive aspects of care-relations are beyond the scope of rights. On Held’s view, this coercive aspect of care is governed by caregivers and care-receivers – coercion is not governed by rights.[xxxv] The problem is that the coercive sphere of care is now one of mere might, which yields no protection for the vulnerable. No one outside of such a care-relation has a ‘right’ to interfere, since there are no ‘rights’ of interference. If there were such ‘rights’ of interference, then justice would be at least partially constitutive also of the sphere of care, and care would not be prior to or independent of justice. This ‘pure’ sphere of care is therefore per definition beyond the sphere of rights and hence is a sphere ruled by the stronger, typically the caregiver. The ‘pure’ sphere of care becomes ‘the caregiver’s castle’. Since there are neither legal rights and nor legal protections in this sphere, the dependency, asymmetry and particularity constitutive of this aspect of care relations are in principle untouchable by law.[xxxvi], [xxxvii] Thus, having care prior to justice entails that problems she associated with the liberal theories of justice, sneaks into her theory too: either care relations are relegated to the ‘caregiver’s castle’ or an important, coercive aspect of the dependency, asymmetry and particularity of care relations is left unaddressed.

Finally I would like to consider problems arising from Held’s implicit assumption that good caring relations require only private individuals who virtuously apply the objective principles of care. Let’s first assume that we know what these objective principles are. To address problems associated with the particularity, dependency and asymmetry constitutive of actual private care relations, we must determine who exactly gets to apply the objective principles. Held doesn’t discuss this issue of application specifically, but in light of the above discussion concerning who can and cannot assume moral responsibility, it seems fair to read Held’s considered view as saying that virtuous caregivers have sole authority to apply the objective standards of care. Therefore, she sees virtuous caregivers as authorized unilaterally to set particular ends on behalf of care-receivers incapable of identifying and setting their own ends. The problem is that once the caregiver has sole authority to apply the principles of care the particularity, dependency and asymmetry constitutive of care relations result in the complete subjection of the care-receiver’s private life to the caregiver’s choices.[xxxviii] Of course, Held may respond that others can and should intervene if the caregivers’ application of the principles is faulty. This response, however, seems insufficient, not only for the reasons visited above concerning third private party intervention, but because the problem isn’t one of bad application of a principle, but of viewing the ideal application of a principle as consisting in subjecting the care-receiver’s private life and body to the caregiver’s arbitrary choices. Therefore, Held hasn’t succeeded in showing how relations of care can avoid this problematic structure, or how private dependency relations can provide a proper voice to both interacting parties.[xxxix],[xl] Again, in holding care prior to justice, Held reproduces versions of the very problems she is trying to solve.

In my view, alleviating these problematic aspects of private dependency relations requires introducing an authority into the relation who in principle can speak on behalf of both the particular caregiver and the particular care-receiver and on behalf of these persons only. Here, Kant’s account of ‘status relations’ – his name for private care relations – has something to offer Held. Kant delineates three types of status relations: relations between parents and their children, relations between spouses, and relations between families and their servants. Because each type of care relation involves asymmetry, interdependency and persons’ private lives, Kant argues that actual consent is insufficient to make them rightful. Moreover, these private care rights are rights to other persons rather than rights against them, meaning that care relations involve rights concerning a shared private life. Kant’s somewhat surprising claim is that only by introducing an authority into these relations that is impartial in principle can they be made rightful. Only if the authority is impartial in this way, can it regulate private care relations without reproducing the problems associated with the dependency, asymmetry and particularity of these relations. In order to be in principle impartial, the authority must represent both parties – the caregiver and the care-receiver – and no one else. The only authority that can be seen as impartial in this sense is a public authority, for only a public authority can represent both parties to a conflict only and yet neither party in particular. The reason is that a public authority just represents the general will of the interacting persons. Because only a public authority can have the right kind of impartiality, only it can serve as the means through which the asymmetry, dependency and particularity of private care relations can be addressed properly. In addition, only through a public authority are the coercive elements of care relations transformed from mere might to right.[xli] But if it’s true that good care relations require a public authority, which includes, for example, a public, legal framework of family (private) law, then care cannot be prior to or independent of justice. Virtuous private individuals on their own are insufficient to ensure good private care relations.[xlii] Rather, rightful care is required as the framework within which virtuous care can flourish. In private care relations, rightful care is in an important sense prior to virtuous care.[xliii]