Taking Care

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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.1

In Contract and Care, 2 Martha Fineman introduces something new to advance her now well-known thesis of collective responsibility for both inevitable and derivative dependency.3 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. 4 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.5 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.6

With Contract and Care, Fineman seeks to make a break with this tradition by including a baseline of dependency needs within the ambit of the rights of citizenship, "no less important and worthy of governmental protection than civil and political rights."7 The normative justification for this claim rests on the notion that dependency work is society-preserving work, and thus society owes a debt to those who perform this essential public function, similar to the collective obligation we feel toward those who secure our national security by serving in the military.8 Similarly, market actors are not excused from accepting some responsibility for the costs of dependency. With this article, Fineman seeks to illuminate the degree to which the relationship between employers and workers has become a virtual contract of adhesion take it or leave it-on terms that are highly unfavorable to workers, and that ignore workers as full social beings whose working lives cannot be disaggregated from the complex webs of dependency in their lives.9 Thus, Fineman seeks to shift some of the costs of dependency to market actors as a matter of (re)distributive justice and worker security.

Joan Williams's project is no less substantial than Fineman's, but is more targeted in its aim. While Williams's larger project is designed to reshape what she calls the work/family axis so as to make wage/labor work more compatible with most workers' care obligations,10 her contribution to this Symposium examines the concept of domesticity and its relationship to gender identity formation. Just as Fineman introduces social contract theory in a novel way in Contract and Care, Williams draws from recent sociological11 and gender performance theory 12 to elaborate a concept of gender as tradition.

Using the idea of gender as tradition, Williams seeks to elaborate a concept of domesticity that provides the normative sites in which particularly salient subject positions emerge that do the work of gendering females and males into traditional roles of primary caregiver/breadwinner. Williams's aim with this article is to "democratize domesticity" both within and without the family. She aims to break apart gendered caregiving roles in the family by analogizing these roles to a kind of drag performance, while urging a transformation of the ways in which the workplace is organized so that it can accommodate adults who have caregiving responsibilities at home.

In many respects Fineman and Williams share a descriptive project: they are concerned about the privatization of dependency/ caregiving as an individual responsibility. They both set their sights on the practices of rule imposed by the law of the private family and seek to unsettle those practices with new paradigms of rule and responsibility. Their prescriptive projects, however, look quite different: Fineman seeks to enlist state and market actors in the task of meeting inevitable dependency needs by radically reorganizing the institutional sites in which dependency is addressed. Included in this project is a quite novel rethinking of the nuclear family.13 Williams, on the other hand, is rather happy with the nuclear family as the institution in which caregiving takes place. She prefers to redistribute responsibilities and resources both at home and at work so that women and men can balance both work and family in a more equitable way.