Response or Comment
Center for Gender & Sexuality Law
Care must be taken when human needs are expressed in the odd dialect of legal rights. This delicate act of translation – from private need to public obligation – demands acute sensitivity to the ways in which public responsibility inaugurates a new and complex encounter with a broad array of public preferences that deprive dependent subjects of primary stewardship over the ways in which their needs are met. Both Martha Fineman and Joan Williams have taken on the difficult project of making the ethical and political case for transforming dependency and care – from private or domestic need to public responsibility. In the articles they have contributed to this Symposium they both make significant contributions to this political project, building on the substantial work they have done elsewhere.
In Contract and Care, Martha Fineman introduces something new to advance her now well-known thesis of collective responsibility for both inevitable and derivative dependency. Drawing from principles of private contract law as well as political social contract theory, she argues that "[u]sing the idea of background conditions [borrowed from contract law] it is possible to argue that it is time to rewrite our social contract, to reconsider the viability and equity of our existing social configurations and assumptions. The background assumptions that Fineman seeks to unsettle are those that take for granted that responsibility for dependency be delegated to the family and that the family be constructed as a quintessentially private institution. The privatization of dependency is possible, according to Fineman, when dependency is characterized as a set of"natural" needs, the family is constructed as an "organic" unit of human organization, and further, the family is treated as an economically independent unit – separate from the market and the state. Fineman has persuasively demonstrated how these fictions are radically untrue of actual social organizations, while they nevertheless undergird social policies that justify a minor public role in dependency care. Indeed, the failure to address human dependency adequately is most often attributed to private, not public, irresponsibility.
Katherine M. Franke,
Chi.- Kent L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2216