The Priority of Rightful Care to Virtuous Care:
A Kantian Critique of the Care Tradition’s Conception of Virtue, Fiduciary Law and Systemic
Justice
Introductioni
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
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individual rights to freedom and equalityiv. 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 caregiversviii 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
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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
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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 nonautonomous 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
5
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
6
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
7
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
2. Systemic Dependency Relations: A Kantian Critique of Kittay’s Conception of Rightful
Care Relations
Instead of presenting care as prior to and independent of justice, Eva Kittay argues that a liberal
theory of justice should incorporate an account of care.xliv Consequently, she can avoid the problems
arising when care is seen as beyond the scope of justice. Nevertheless, Kittay’s shared commitment
to the idea that good care requires only virtuous private persons embroils her account of care in
other significant difficulties. The assumption that good caring relations require only virtuous, private
individuals is reflected in Kittay’s prudential conceptions of justice and the state. When the state is
8
seen as only prudentially necessary for justice, it follows that the coercive rights of the state must be
understood in terms of the rights individuals have against one another.xlv Therefore, the coercive
rights of states (public right) are seen as in principle co-extensive with the rights of private
individuals have against each other (private right). By critiquing Kittay’s Rawlsian conception of the
state, I first want to indicate a set of issues of systemic injustices that remain unresolved under this
assumption. Second, I seek to overcome these problems by offering a set of revisions to Kittay’s
account.xlvi
According to Kittay, the main problem with liberal theories of justice is that they analyze all
relations of justice through the hypothetical perspective of autonomous, independent persons. This
is why they cannot provide a good account of care relations. For example, Rawls’s “theory
effectively excludes as equal citizens two classes of persons whom Rawls did not intend to exclude:
those who are dependent upon others, and those who attend to their needs”.xlvii In order to
overcome this problem, she suggests, certain key features of Rawls’s account must be appropriately
amended. First, Humean circumstances of justicexlviii must be expanded so as to include the
inconveniences related to concerns of care and dependency.xlix Second, in addition to having the two
Rawlsian moral capacities, namely a capacity for justice and a capacity for a conception of the good,
the parties in a dependency relation must be seen as having a capacity for a conception of care.
Third, the list of primary goods is altered to include the right to care for both caregivers and carereceivers.l Consequently, those in the original position arguing from the perspective of the veil of
ignorance do not know whether they are autonomous or non-autonomous, independent or
dependent persons.li As a result those negotiating in the original position are likely to adopt a third
principle of justice as fairness to complement Rawls’s original two principles. The third principle –
“[t]he principle of the social responsibility for care” – reads as follows:
9
To each according to his or her need for care, from each according to his or her capacity for care, and such
support from social institutions as to make available resources and opportunities to those providing care, so
that all will be adequately attended in relations that are sustaining.lii
By incorporating the needs of both caregivers and care-receivers into the ‘basic structure’ of the
state in this way, Kittay concludes that Rawls’s theory is made responsive to the specific challenges
involved in envisioning just care relations. The state ensures that those in need of care will receive it
and that caregivers (‘dependency workers’) are provided with material support such that their
provision of care doesn’t completely drain them.
Insofar as Kittay and Rawlsians affirm Humean conceptions of the circumstances of justice,
they affirm two things: justice is a remedial virtue and the state is the superior instantiation of this
remedy. On such an assumption, justice and the state are coercive responses to individuals’ vice, and
individuals living in the state of nature can in principle realize justice without the state. The state is
the superior instantiation of justice because it’s much easier to realize justice through the state. Thus,
the state merely does what individuals ought to do in the state of nature. Therefore, the rights of the
state are coextensive with the rights of individuals and if individuals were more virtuous, justice
would be possible in the state of nature. Yet, if the state merely does what individuals ought to do
but fail to do, then it’s hard to see how individuals can rightfully enforce Kittay’s three principles of
justice as fairness.liii First, surely private individuals cannot have rights to redistribute resources as
these principles require. As Robert Nozick famously objects to Rawls, how can a private right to
redistribute resources be reconcilable with a liberal notion of private property rights?liv And even if
we could set aside this problem, it seems that it’s in principle impossible for individuals to exercise
this right, since it’s impossible for individuals simultaneously to assume the systemic control needed
to effect the redistribution.lv Third, even if we grant that individuals have the right to enforce justice
as fairness, as Simmons argues, we need an additional account of how the state obtains the right to
do so on their behalf.lvi If our answer to this last question is simply that it’s prudent that the state
10
does it, then we have explained only that it’s stupid not to establish a state – not that it’s wrong to
reject its establishment. But if we can’t justify why it’s wrong to reject the state, then we haven’t
justified the state’s monopoly on coercion. This is why Simmons returns to the Lockean conception
of actual consent.
Given the nature of their fundamental commitments, Rawls and Kittay are unlikely to take
Simmons’s route. I propose that Kittay and Rawls can remain true to their respective projects and
escape the aforementioned problems if they give up the Humean assumptions regarding the
circumstances of justice. Doing so requires that they show both why justice is not merely a remedial
virtue and why the state is not merely a superior instantiation of this remedy. Consequently, they
must show that the state is the means through which justice is possible at all, which is to say that
they must show why justice is in principle impossible in the state of nature.lvii
Rawls and Kittay’s assumption of the Humean conditions of justice leads to further
assumptions that handcuff their ability to address the specific problems inherent in care relations.
Instead of addressing the question whether individuals really can realize justice in the state of nature,
Kittay and Rawls simply assume that individuals have rights that the state enforces on their behalf.
From this assumption, they proceed directly to an analysis of the nature of the public political, social
and economic institutional framework (‘the basic structure’). But this move, by Kittay and Rawls,
fails explicitly to distinguish between private right, or rights that hold between private individuals,
and public right, or the rights citizens have in relation to their public institutions. This is why, I
believe, that though Rawls argues that the state will protect children’s rights against their parents, he
gives no separate account of what those private rights are.lviii
Although Rawls does not explicitly use the distinction between private and public right in
the analysis of care relations, it seems fair to read him as asserting that children’s rights are protected
though public right given his claim that children have rights as ‘future citizens’.lix Although it seems
11
fair to read Kittay’s considered view as also addressing children’s rights through public right, she
avoids the appeal to future citizenship by including a principle of care in the principles of justice.
This is probably a good thing. After all, if Rawls argues that the state can enforce children’s rights
because children will in the future be able to exercise the two moral powers constitutive of
citizenship, the account struggles to explain the rights of persons whose impairments are so severe
that they will never be able to exercise these powers. Regardless of these differences between Kittay
and Rawls, the problem with the strategy of analyzing care relations merely through the perspective
of public right is that there is no account given of the rights of particular individuals hold against
one another in these relations – something needed to provide an explanatory framework for things
like family law. Second, without an account of private right in care relations, there is no way to
distinguish between private and public right. I suggest that both Rawls and Kittay should begin with
an account of private right regarding care relations, such as regarding the family. This account
should contain both an explanation of the nature of private right regarding private care relations and
an explanation of why the state is in principle necessary for enforceable private care rights. With
such an account in hand, Rawls and Kittay can then draw a distinction in their accounts of public
right between how the state establishes the legal institutions necessary for the rightful enforcement
of private right in care relations and how the state must establish other public institutions, say, for
example, institutional economic support for both care-receivers and caregivers (‘dependency
workers’), to enable just systemic, dependency relations.lx, lxi, lxii Therefore, the addition of an account
of private right with respect to care relations will show why the state must assume a monopoly on
coercion in these relations as well as institute other systemic measures to ensure that its monopoly
on coercion is consistent with each citizen’s right to find herself in rightful conditions.lxiii
The upshot of this proposed revision is that public right is both constitutive of rightful
private right as well as having its own, additional systemic concerns. Hence, though Kittay and
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Rawls’s focus on public right in their accounts of care relations is a step forward, my suggestion is
that they should have paid more attention to the difference and relationship between public and
private right with respect to these relations. Had Rawls done so, he would not have had to appeal to
future citizenship in order to capture the state’s obligations towards mentally non-autonomous
persons. Instead the revised account can make sense of the state’s obligations to mentally nonautonomous individuals in terms of their current ‘passive’ citizenship. With an account of private
right with respect to care relations, passive citizens can be seen as having rights to find themselves in
rightful private care relations – a matter of private right – as well as having a right to become, insofar
as possible, ‘active’ citizens in the future – a matter of public right. Hence, the full analysis of the
state’s rights and obligations with regard to mentally non-autonomous persons will include both an
account of how public institutions enable rightful private care relations in the present and an account
of these persons’ continuous and changing claims on public institutions that secures them future,
active citizenship insofar as their capacities allow.lxiv, lxv, lxvi Moreover, and importantly, neither private
nor public right can be analyzed from the perspective of the virtuous private individual; that
perspective is the perspective of first-personal ethics, not the perspective of justice.lxvii
Acknowledgements.
In addition to solving the problems currently facing much liberal theory and the care theories alike, an advantage of the
proposed position is that it can track, make sense of and utilize important distinctions in law. Since the account engages
and makes sense of these distinctions, it promises to be more useful also for legal scholars than many prominent
accounts of justice and care that do not engage the law in this way. The Kantian account proposed can give an account
of and critique the law’s distinction between private and public right, showing why the law is necessary to establishing
good care relations – both privately and systemically – rather than simply a last remedial resort when things have gone
horribly wrong. Instead of seeing the law and justice as necessary evils given our typical lack of virtue, the proposed
account argues that they work together even in a world in which our ‘crooked timber’ is not the source of problems.
iii The full normative account of care relations therefore has three elements: an account of care relations in terms of
private right, an account care relations in terms of public right, and finally an account of virtuous care relations.
iv See pp. 14f, 17, 24, 38, 42, 63f, 68, 101f. All unidentified references in this section refer to Held’s The Ethics of Care.
v 36.
vi Ibid.
vii 14f, 40.
viii 136.
ix 63f.
x 10f . Baier similarly emphasizes the priority of emotions in caring relations (Baier 2005: 23f, 31).
xi See pp. 32f, 36, 49, 51ff, 53f, 99, 158.
i
ii
13
68-72. Tronto and Baier agree that the spheres of care and justice should be combined (Tronto 2005: 259), (Baier
1996: 31f).
xiii 14, 71, 73, 88f, 101f, 132ff.
xiv 71ff, 88f, 134.
xv For example, see pp. 17, 71f, 88f, 134. The plausibility of this claim is also seen as evidenced by the fact that unless
there is a fundamental caring relation between interacting persons, in the sense that they fundamentally view one another
as members of the same society, they have not and cannot form a people or a nation (17, 102, 125, 128f, 131, 136f, and
159).
xvi Sandel, Michael: Liberalism and the Limits of Justice (2nd ed.), Cambridge University Press, 1998.
xvii 14, 72, 101f.
xviii 68, 73.
xix 24f, 68, 73, 80f, 87, 100, 102, 140f, 146f, 158.
xx In this sphere, “justice and the assurance of rights should have priority, although humane considerations should not be
absent” (16f). Elsewhere Held explains that “[i]t is [unsatisfactory] to assign justice to public life and care to private…
Justice is badly needed in the family as well as in the state: in a more equitable division of labour between women and
men in the household, in the protection of vulnerable family members from domestic violence and abuse, in recognizing
the rights of family members to respect their individuality. In the practice of caring for children or the elderly, justice
requires us to avoid paternalistic and maternalistic domination… At the same time, we can see that care is badly needed
in the public domain. Welfare programs are an intrinsic part of what contemporary states with the resources to do so
provide… There should be greatly increased public concern for child care, education, and health care, infused with the
values of care… Assuming that care is available to those who need it should be a central political concern, not one
imagined to be a solely private responsibility of families and charities… in addition to a fairer division of responsibilities
of care, the care made available through the institutions of the welfare state needs to be strengthened as well as
reformed. Care and justice, then, cannot be allocated to the separate spheres of the private and the public. But they are
different, and they are not always compatible” (Held 2006: 68f, cf. 101).
xxi 17, 28.
xxii 41.
xxiii For an example of how care should function within justice with regard to custody cases, see pp. 69, 70f.
xxiv Before moving on, it may be useful to note two problems regarding the argument presented so far. First, Held’s
arguments above employ the traditional conception of justice that Held wants to criticize, but this appears to leads her
into contradictions. For example, on the one hand, Held argues that care is causally prior to justice since only those
cared for as young can become capable of moral autonomy. This argument presupposes the traditional conception of
justice, according to which justice is a sphere consisting of relations between autonomous persons. On the other hand,
Held also argues that it is a matter of justice that the state interferes in families to protect children from abuse. But if this
is the case, then how care be causally prior to justice, since justice so conceived includes persons before they are capable
of moral responsibility. Second, in light of Held’s claim that the liberal tradition is unable to capture relations involving
care-receivers incapable of autonomy, it is puzzling to learn that she nevertheless thinks this perspective is the right
perspective through which to analyze relations amongst children with regard to issues such as racism, ethnicity and
dominating paternalism and maternalism. The problem with such an assumption, for Held, is two-fold. On the one
hand, it now seems as if with regard to some issues, justice and care are, after all, presumed to be at the same level of
normative importance, in which case care is not morally prior to justice. On the other hand, this view entails that with
regard to some issues involving persons incapable of moral autonomy, the traditional liberal perspective despite its
analysis in terms of the morally autonomous, surprisingly and without explicit notice or justification, is found to be
adequate. If the traditional perspective is, after all, actually sufficient for some aspects of relations involving the nonautonomous, then the care tradition, including Held, is mistaken in thinking that all relations involving the nonautonomous require a perspective different than that offered by traditional, universalist accounts. Then again, surely
these relations between parents and their children are not relations between autonomous, independent persons even if the
actual moral problems are those concerning fairness, racism etc.? Surely the relations between caregivers and their nonautonomous care-receivers are still asymmetrical and involve someone (caregivers) acting on behalf of others (carereceivers)? In sum, it is unclear to me why Held thinks that for certain topics the traditional liberal perspective is
sufficient even though the normative relations at stake are asymmetrical care relations involving non-autonomous carereceivers. Hence, it seems to me that Held’s considered challenge to the prominent liberal accounts is that they can only
capture the relations involving morally autonomous persons; it cannot capture any relation involving morally nonautonomous care-receivers.
xxv 22, 132, 138f . Tronto similarly emphasizes the existence of conflict in care relations (Tronto 2005: 255, 257).
xxvi 24, 41, 151.
xii
14
See for example, pp. 10ff, 36-39, 42f, 46, 52, 70ff, 74, 130, 132, 139, 158.
56.
xxix 77. To put the point differently, when we evaluate relations involving persons incapable of moral responsibility,
hypothetical consent must involve imagining what we could agree to if we were morally incapacitated in the relevant
sense.
xxx The interpretation in the present paragraph is drawn upon this example of Held’s: “Within the caring relations of the
family, questions of justice and rights should be pursued. Girls should be encouraged to seek equal treatment, and
education and other social influences should lead families to provide girls with as much nourishment, education, and
freedom as boys. But to the extent possible, the striving for equal rights should occur in ways that do not sunder family
relations. Of course it is not always possible for a family member to assert his or her rights while remaining within the
relations that form a set of persons into a family. If a father threatens to disown and permanently sever his ties to a
daughter who refuses to marry the man he has chosen to be her husband, she may justifiably see her right to choose her
husband as more morally compelling than her tie to her father. If a child is a victim of severe violence in his home, it will
be morally better that he loose his ties to his family than that he loose his life. And so on. But these cases of what seem
to be the priority of justice are as much failures to care as failures to respect justice. The threat of the father and the
injuries of the child make this evident. Where a parent does care well for a child but fails to recognize the child’s rights
(to the extent that these can be separated, which is questionable), the child morally ought to try to resolve the conflict
through discussion and compromise within the network of family relations rather than breaking the relation with the
parent altogether” (134f)
xxxi It is important to note how these examples fit with Held’s general view, namely that care is prior to justice and that
good care only requires virtuous individuals. Care sets a framework within which rights are pursued and regardless of
whether we consider the practice from the point of view of justice or care; it only requires virtuous private individuals. It
is the combination of these two assumptions – that care is prior to justice and that good care only requires virtuous
individuals – that drives much of the reasoning in the examples. As we see, in cases where relations involve abusive care
and a disrespect of rights, virtuous and caring victims and their abusers are seen as able not only rectify the problem in
principle, but they should not necessarily pursue their rights in so doing. When the virtuous daughter or son recognize
that the problems concerning the disrespect for their individual rights is not too serious, they should stay and attempt to
change the relations from within rather than breaking them up by standing on their rights. In contrast, if a child realises
that the abuse is too severe to be fixed, he should leave the family behind. Quitting an abusive relationship is therefore
the last resort, to be pursued only if the relationship cannot be improved. In sum therefore, Held assumes that: a.) If
everyone involved in the relationships is virtuous, justice and care is realized, b.) problems of abusive care and disrespect
for rights can in principle be solved by virtuous, private individuals, and c.) rights should be pursued within the
relationship of care insofar as possible.
A similar view concerning the need only for virtuous individuals seems affirmed by Kittay. For example, she argues that
“The inequality of power is endemic to dependency relations. But not every such inequality amounts to domination.
Domination involves the exercise of power over another against her best interests and for purposes that have no moral
legitimacy… Inequality of power is compatible with both justice and caring, if the relation does not become a relation of
domination… The dependency relationship is, then, itself ideally not one of domination, even though it is between two
individuals of unequal power” (Kittay 1999: 34f). Again, the view is that though there is a danger of domination in
dependency relations, Kittay argues that ‘ideally’ it is not such a dominating relation. If individuals respect the
requirements of justice and care, it will be a good relation. Hence this is something they in principle can do as individuals
– a public authority and a rule of law is not required.
xxxii A major aim for the care-tradition is to provide a theory that can deal with, amongst other things, relations involving
persons incapable of, or insofar as they are incapable of, moral responsibility. In providing such an account, they cannot,
therefore, simply assume that non-autonomous care-receivers are capable of moral responsibility after all. Also the point
here is not to deny that children become increasingly capable of assuming responsibility for themselves, but that our
account of care relations require us to capture the care relation insofar as it involves those incapable of moral
responsibility.
xxxiii Another way of making this point is to emphasize how such a solution fails to take the particularity of the care
relation sufficiently seriously. As emphasized by the care tradition and Held in their objections to prominent liberal
theories, care relations are intimate and private. Consequently, a solution in which a stranger is introduced into the
relation seems inconsistent with respecting the integrity of its particularity. That is to say, Held often emphasises the
importance of the relational self; that the self is constituted by its particular care relations. The problem is that if
particular parents and their children are the ones sharing lives (interdependence), how can strangers unilaterally decide to
impose themselves on such a relationship, in which they are not parties without thereby doing something objectionable
also to the children? After all, these strangers are not ‘constituted’ by these particular care relations, and consequently
xxvii
xxviii
15
why can the children be seen as welcoming the strangers who now demand to have such a private and intimate
relationship with them? Naturally, this might be the only way to stop some parents from destroying their children, but
surely it cannot be the ideal solution
xxxiv Since Held’s analysis is founded on assumptions shared with much liberal thought, it is not surprising that several of
the above problems are recognized by liberal thinkers who has actually tried to give an account of care relations, such as
children’s and parents’ respective rights and duties. One such thinker is the Lockean A. John Simmons. Not only does
Simmons see some of the above problems as inherent in the Lockean conception of children’s rights but these problems
lead Simmons to conclude that the Lockean position cannot make sense of parent-child, or more generally, care relations
involving persons incapable of moral responsibility. The heart of the problem, as Simmons sees it, is that since children
cannot exercise rights, they cannot be seen as ‘having’ them in the Lockean sense of the term. The issue of children’s
rights is therefore a catch-22 for the Lockean position, according to Simmons: it is because they are unable to exercise
rights that children need special rights, namely against their legal guardians, and yet since they cannot exercise rights they
cannot be seen as ‘having’ such special rights. The solution to the problem of children’s rights can therefore not simply
involve an appeal to children’s rights without also providing an independent account of the exercise of these rights. That
is to say, when we switch our analysis from discussing autonomous moral persons to discussing children and other
persons incapable of autonomous moral agency, the analysis of the rights of the latter must be different in structure than
the former because the morally non-autonomous cannot exercise their rights. See (Simmons 1992: 193-200).
xxxv As we saw above, this doesn’t entail that rights do not govern certain aspects of parent-child relations, since for
example rights govern issues related to racism. Rather the points is that when we analyze the parent-child relation in
terms of care, we still find coercion, but no rights.
xxxvi I believe Held might object to this last point by arguing that I have misunderstood her conception of good caring
relations. As we saw above, though good caring relations do not in principle require justice, let alone public right and
public concern, justice and public institutions is the proper response to certain kinds of vice. Hence there is no problem
of the kind I have suggested, since there is a proper space for justice and public institutions on this account. This
response, I believe, misses the objection. The objection here is not to Held’s conception of justice, but to her notion that
the sphere of care relations has a coercive aspect that is prior to (or independent of) justice. By conceiving care relations
as having a coercive sphere not regulated by right, no one in principle has a right to interfere in it.
xxxvii In fact, it seems that the problem with the ‘pure’ sphere of care appears go even deeper. As noted above, Held
argues that children can justifiably reject the abusive relationship with the father. Yet note that when dealing with carereceivers incapable of moral responsibility, their contribution can never make the interaction virtuous. So when the child
fights with the father, presumably her actions are neither virtuous nor vicious. The only one who can in principle act
virtuously is the caregiver, so it seems impossible to appeal to the child’s behaviour when describing virtuous use of
coercion in this ‘pure’ sphere of care. Moreover, it also seems that on this conception children can never wrong their
parents, since they can act neither virtuously nor viciously. And yet if our account rests on the distinction between virtue
and vice when conceiving of this ‘pure’ care relationship, then there are no more resources for dealing with this problem.
And this is a pretty serious problem, I believe, since the strongest party in care-relations sometimes is the care-receiver.
After all, there is significant amounts of physical violence and mental aggression exercised against caregivers by their
care-receivers – and yet on Held’s account, this could never give rise to any notion of a right of intervention since there
is no vice exercised. Because of its foundation in a distinction between vice and virtue, Held’s account struggles to deal
with this aspect of the relation by leaving also the physically weaker caregivers fundamentally unprotected. When the
care-receiver is stronger, the ‘pure’ sphere of care becomes the ‘care-receiver’s castle’.
xxxviii To see this, consider the example of the parental relation. On Held’s conception, virtuous parents are correct in
viewing themselves as in principle being the only ones with standing to determine which particular ends their child
should pursue. (It may be worth emphasizing that we’re talking about children insofar as they are incapable of specifying
their own ends and interests here. I.e. it is of course possible that we can argue, as many legal systems do, that the
transition from child to adult is continuous since children progressively become capable of assuming responsibility for
their various ends. Yet in this discussion we are after children insofar as they are, exactly, children in the sense of being
incapable of assuming moral responsibility for their ends.) The problem is, however, that if this is the case, then the child
is, in a fundamental way, asymmetrically subjected to the parents’ particular choices and preferences regarding the
application of these objective principles. Hence, though this view recognizes that there is dependency, asymmetry, and
particularity, it does not properly deal with the resulting problems, but actually accepts them as normatively
unproblematic in care relations. But surely such a conception of the dependency relation between parents and their
children makes the relation asymmetrical and particular in the wrong way. On this conception, there is a sense in which
the private sphere of parents and children become the private sphere solely of the parents, since the child’s ends and
preferences are to be defined solely by the parents. That is to say, the caregiver’s castle is back again.
16
The same problem of radical asymmetrical subjection and lack of the right kind of particularity arises also in the implied
account of any private dependency relations involving persons who are merely partially non-autonomous, meaning that
they require the direction and assistance from others with regard to some aspect(s) their own private life. For example,
some of the relations between physicians and their patients, between lawyers and their clients, and between professors
and their students have this structure. In these situations morally responsible patients, clients and students lack the ability
required to make certain decisions regarding their own private life, and consequently must ask the others (physicians,
lawyers, teachers) to direct and assist them when making their choices. (In contrast, if they are morally incapacitated,
then the professionals assist their caregivers in making such choices on their behalf.) On Held’s care theory the two
parties (the physician-patient, professor-student, lawyer-client) are simply two private persons engaged in a care relation.
Moreover, insofar as the more capable person (the physician, the professor, the lawyer) is virtuous, the dependent
person simply authorizes the other to make these choices for her. And long as the caregiver is virtuous, meaning that she
applies good objective principles of care in a conscientious way, a good caring relation is assumed to issue. The problem
is that if this really is all that is going on in these relations involving such professionals, then they are relations in which
the care-receiver has no real voice, but finds aspects of his private life fundamentally subjected to the arbitrary choices of
his particular caregiver. Since the care-receiver cannot properly exercise informed choices with regard to certain ends,
the only way to pursue these ends goes via the authorization of another, more knowledgeable person to make these
choices for him. In this way, the private choices regarding his bodily health, his studies, and his legal affairs are seen as
fundamentally subject to another private person’s arbitrary, even if knowledgeable choices.
xxxix It is also worth pointing out that if all that is required for good caring relations is virtuous private individuals, where
virtue is understood as the conscientious application of objective principles from a motivation of care, then Held has
very little to contribute to specific contemporary, controversial discussions surrounding private care relations. For
simplicity, let me illustrate this by means of the simplest case, namely the parent-child relationship, and on the
assumption that two objective principles of parental care are: to take care of a child’s health and to provide them with a
good, basic education. Now, if all that matters for the resulting relations of care to be virtuous is that the parent applies
these two principles knowledgably, conscientiously and from a motivation of care, then most of the serious and
competing positions on these issues seem to come out equally good and the children are seen as merely subjected to the
parents’ particular views on these matters. For example, a major disagreement regarding health care concerns whether
parents should be permitted to reject certain kinds of medical treatments for their children, such as blood transfers and
certain vaccinations. A controversial issue concerning education concerns whether parents have the right to teach their
children anything, such as creationism vs. evolutionism, and to decide how much education children should get. I cannot
see that the virtuous application of objective principles of care can determine these issues, since the assumed objective
principles can be knowledgeably and virtuously applied and yet result in most of the opposing conceptions dominating
current discussions. That is to say, it seems plausible to believe that a parent who applies the objective principles of care
to his or her particular situation can conscientiously hold most of the opposing views in contemporary debate.
Moreover, even if we think that some of the positions can be ruled out as misapplications of the objective principles of
care, it seems perfectly reasonable to say that there will remain a reasonable disagreement concerning how to apply the
principles to particular circumstances. For example, a group of Kantians could reasonable disagree on whether a child
should be required to take all the available vaccinations or to go to school for, say, 8, 9, 10, 11, or 12 years. The problem
is, then, that if virtue is deemed sufficient for good caring relations, then the position has nothing to say regarding the
reasonable disagreement concerning the application of these principles and yet the only ones who in principle have no
voice regarding this question of application are the children.
xl In the longer version of this paper I argue that also Kittay’s conception of just, private care relations encounters similar
kinds of problems. Eva Kittay’s conception of care relations differs from that of Held in that Kittay considers the
account of care not as an independent addition to a theory of justice, but as a part of a reformed version of it. I do not,
however, believe that she thereby overcomes the problems listed above, since her proposed liberal account of justice
shares with Held and prominent liberal accounts of justice the assumption that good caring relations only require
virtuous private individuals.
xli For example, because a public authority has the right kind of impartiality, it can have proper standing not only to
specify the content of the general principles to regulate private care relations through the positing of family law, but also
it can have proper standing to challenge the way in which caregivers apply and enforce these laws in their particular
relations with their care-receivers. In this way is it possible to avoid simply subjecting care-receivers to the arbitrary
choices of their caregivers, and instead regard them as particular subjects with independent normative importance even
though they are not as yet able to assume moral responsibility.
xlii This is not to say, of course, that actually developing family law is easy and not filled with a set of problems of its
own. For a relatively recent and interesting collection of essays on family law, see Macedo, Stepen and Young, Iris M.
17
(eds.): NOMS ILIV: Child, Family and State, New York University Press: New York, 2003. I do not address these issues
here, since I only focus on why we need the state and family law at all.
xliii In the longer version of this paper, I go into some more detail regarding Kant’s account of rightful status relations. In
neither versions of this paper do I engage all the textual questions that arise when we engage Kant’s conception of
children rights, marriage and relations involving servants. This discussion is found in the Doctrine of Right on pp. 6: 277284. I deal with some of those issues in… (reference deleted), including how one reasonably will set aside Kant’s
homophobia and general uneasiness about sex when investigating Kant’s considered conception of marriage. See also
Barbara Herman’s paper “Could It Be Worth Thinking About Kant on Sex and Marriage?”, in A Mind of One’s Own,
edited by L. M. Antony and C. E. Witt (ed.), 53-72. Boulder: Westview, 2002. I deal with the question of how this
account of private right fits into Kant’s overall account of private right in… (reference deleted).
xliv For example, Kittay maintains that “[a]lthough justice and caring have often been seen as distinct, even opposing,
virtues, the arguments put forward in this book press for a different view. A justice which does not incorporate the need
to respond to vulnerability with care is incomplete, and a social order which ignores care will itself fail to be just” (Kittay
1999: 102). Similarly, she argues that properly conceived “political theory must attend to the well-being of dependents
and of their caregivers, and also to the relation of caregiver and dependent upon which all other civic unions depend”
(Kittay 1999: 108).
xlv The state may obtain further rights through its citizens’ consent to transfer some of their rights to them, but this is
irrelevant for our purposes here.
xlvi In the longer version of this paper, I illustrate this point also in relation to Held’s account of systemic justice. There I
argue that the structure of Held’s account of systemic justice is very similar in structure to leftwing, libertarian accounts
of justice, which entails that she encounters many of the same problems that face those theories.
xlvii (Kittay 1999: 78)
xlviii The Humean circumstances of justice are moderate scarcity and limited benevolence.
xlix (Kittay 1999: 108)
l “The list of [primary] goods is supposed to be motivated by a conception of moral persons as ones possessing a sense
of justice and the capacity to form and revise a rational life-plan. Assuming that those in dependency relations count as
citizens, the adequacy of the list requires asking whether these moral powers suffice as the moral powers of citizens in a
society that takes dependency needs seriously
An ethic reflecting concern for dependents and those who care for them demands, first, a sense of attachment to others;
second, an empathetic attention to their needs; and third, a responsiveness to the needs of others… To fulfill these
duties requires the cultivation of capacities which… are required by a state which recognizes that taking dependency
seriously is a requirement of justice” (Kittay 1999: 101). She continues “Neither Rawls’s two moral powers requires such
concern nor yields such an ethic. First, for some the good shall include attachment of sentiment leading them to
cultivate capacities to care for others. Still, this remains a private matter requiring no responsibility on the part of the
society at large and no assurance that dependence can be cared for without extracting undue sacrifices from those upon
whom the responsibilities fall. Second, unlike the ability to form and revise a conception of one’s own good, a sense of
justice is necessarily an other-directed moral power. Although it is one that involves reciprocity, it says nothing about an
empathetic attention to the needs of another who may be incapable of reciprocating. Thus the moral capacities for care
are never involved in the moral capacity for justice as construed in Rawlsian constructivism… A construction adequate
to meeting dependency needs justly would expand the list of moral powers and amend the list of primary goods. The
moral powers of the persons should include not only (1) a sense of justice… and (2) a capacity to pursue a conception of
the good, but also (3) a capacity to respond to vulnerability with care… [And i]f the list [of primary goods] were to reflect
such a commitment [to care], then we would find represented: 1) the understanding that we will be cared for if we
become dependent; 2) the support we require if we have to take on the work of caring for a dependent; and 3) the
assurance that if we become dependent, someone will take on the job of caring for those who are dependent upon us”
(Kittay 1999: 102).
li Kittay argues: “if dependency is recognized [as it should be] as one of the circumstances of justice, then the dependent
is represented as a fully functioning citizen in a period of dependency, such as early childhood. If I imagine myself as a
party to the original position, I consider that I will have such periods of dependency and will want to choose my
principles of justice in such a way that, while I am in this state, my interests are protected. Furthermore, since I will also
think that, in all likelihood, I will not always be dependent, I will want principles capable of generating policies that
balance my concerns during periods of dependency with those during periods of full functioning” (Kittay 1999: 89f).
lii (Kittay 1999: 113)
liii That Kittay affirms the view that the need for the state is prudential, which entails that the coercive rights of
individuals and the state in principle are the same, seems uncontroversial. For example, this is reflected in how Kittay,
for example, for examples says that “Principles of right and traditional notions of justice depend upon a prior and more
18
fundamental principle and practice of care… A political theory must attend to the well-being of dependents and their
caregivers, and also to the relation of caregiver and dependent upon which all other civic unions depend… But for a
society to attend to the need for care and to do so justly, it is not sufficient for the dependency worker alone to be
caring. There must be principles that secure social institutions providing aid and support for dependency workers in their
caring responsibilities. This requires the broadened conception of reciprocity” (Kittay 1999: 108). As we see here, society
must attend to the wellbeing of both dependents and caregivers as well as to the ‘relation’ between caregiver and
dependent, but the reason why society must do this is, ultimately, an issue of ‘security’. It is needed to ensure that
everyone’s rights are fulfilled – or ultimately a prudential concern.
liv Robert Nozick: Anarchy, State and Utopia. Basil Books 1974, esp. pp. 198-231
lv Kittay voluntarist reading of Rawls also encounters a problem of matching up the rights of dependents with the duties
of the non-dependents. To give one example, Kittay argues that a great advantage of the care tradition’s relational
conception of the self is that it can cover the needs of each. She argues: “If we start not with individuals in their
separateness, but in their connectedness, we can read their demands for equality through these connections. If we can
see each individual nested within relationships of care, we can envision relationships that embrace the needs of each”
(Kittay 1999: 66). The first problem with this conception is that even if we grant this, then we have no way to account
for how strangers can have standing to interfere in such relations. After all, strangers lack the proper connection. A
second problem is that it becomes a mere matter of chance that everyone ends up with such connections; it does not
become a matter of enforceable rights and duties. To put this point in terms of Kittay’s phrase that we must remember
that everyone is ‘a mother’s child’, we may reasonably object by saying that, actually, everyone’s not some mother’s child,
though they ought to be. Some people who have given birth to children are, as care theorists often point out, incapable
of being parents, and parents die. Appealing to de facto relations will therefore not do – we also need an account of how
to establish such relations in the right way when they don’t exist.
lvi See “Justification and Legitimacy”, in Justification and Legitimacy, Cambridge University Press: New York, pp. 122-157.
lvii As we shall see shortly, had they gone this route, Rawls and Kittay would have been able to establish why the state has
the right to enforce individuals’ rights as well as why the state has the right to do things individuals have no right to do.
lviii For example, in Political Liberalism, Columbia University Press: New York, 1996, he argues that “basic rights and
liberties secure [protection] for individuals generally … as do the individual members of families from other family
members (wives from husbands, children from their parents)” (Rawls 1996:221 n. 8). I believe that these ideas should be
developed into a full private right account, an account of the rights private individuals hold against one another, which
then would be clearly demarcated from public right – or the rights citizens hold on public institutions (see next
footnote).
lix On p. 598 in “The Idea of Public Reason Revisited”, Rawls argues: “Just as the principles of justice require that wives
have all the rights of citizens, the principles of justice impose constraints on the family on behalf of children who as
society’s future citizens have basic rights as such”. John Rawls: “The Idea of Public Reason Revisited”, in Collected Papers,
ed. by Samuel Freeman, Harvard University Press: Cambridge, Massachusetts, 2001, pp. 573-615.
lx My suggestion, then, is that when identifying what the public perspective of the state consists in, we must draw a
distinction between how the state through public right both enables rightful private right relations through the positing,
application and enforcement of private right and how it enables rightful systemic relations through the positing,
application and enforcement of public right. On the one hand, therefore, the state will set up a set of public institutions
that are themselves governed by public right, but whose establishment is constitutive of rightful private right relations,
here private care relations. For example, the state establishes public, institutional authorities with regard to education,
health care, family, and crime that enable rightful private care relations, and yet the operations of the public institutional
authorities are themselves governed by public right. In this regard public right ensures that the public authority with
standing in private care relations isn’t just some powerful, knowledgeable persons, but persons whose offices of
authority is governed by public right and professional (public) codes of ethical behaviour. For example, in the US the
respective public institutions are called, respectively: the US Department of Education, the US Department of Health
and Human Services, poverty and social welfare (the US Social Security Administration), and the US Department of
Justice. lx These public institutions constitute part of what Rawls and Kittay calls the ‘basic structure’, and these
institutions primarily aim at enabling rightful private right relations. On the other hand, the state will ensure that the
larger systems within which people exercise their private rights, such as the economy and the financial systems, are
reconcilable with each citizen’s freedom and equality. These systems are coercive in that they set the parameters within
which people exercise their private rights, hence, they must also be governed by public rights and institutions – and not
some private person or group of persons. These institutions therefore comprise another, distinct part of the ‘basic
structure’.
It is likely that some might object to this by saying that it is a ‘cold’ way of providing care. I don’t think so. If we look at
the states many care theorists and other leftwing theorists look to for inspiration (and maybe hope), namely countries
19
such as Canada, Norway and Sweden, what distinguishes them from other countries is not an excess of particularly
virtuous people, but the presence of institutions to which each citizen is given certain claims. For example, in Norway
every citizen has a right to welfare (a home, including food, heat, and clothing), to education including student loans
(upon the age of 18, each Norwegian has a right to student loans for the pursuit of higher education and university
education is free), and to health care. Consequently, the possibility of a decent home, education and health is not subject
to another person’s arbitrary choices, such as the parents’ willingness or ability to pay for education – or if this is lacking,
another person’s private charity. It is a public systemic solution to systemic problems – it is not a response to vice as
such.
lxi This would also make it possible for Kittay to overcome the problem characteristic of her current theory, namely an
account of why it is that we need a public authority to represent the voice of the dependent. I find Kittay’s account quite
close to this recognition at several places, but the voluntarist assumptions on which her position reads makes it
impossible for her to pay proper attention to it. For example, she argues that “Okin’s suggestion is that individuals, not
heads of households, should be representatives [in the original position]. Our question then is whether the parties
representing individuals will represent the interests of both dependents and care-givers” (Kittay 1999: 85). She continues
a little later by arguing that “[w]hile the Rawlsian construct allows for the possibility that a representative may imagine
himself or herself as a dependent or having responsibility for a dependent’s care, it does not necessitate that a
representative will do so when choosing the principles for a well-ordered society. Dependents do not form an obvious
constituency within the Rawlsian construct. Surely, some persons, envisioning themselves as having dependency
responsibilities, may choose to adopt other-directed responsibilities as their own. But this makes the representation of
these dependents a contingent matter and not one integral to the procedure of determining the principles of justice”
(Kittay 1999: 86, cf. 90). The problem, on Kittay’s reading, is ensuring that the dependents are represented when the
principles of justice are selected. Hence, the problem, according to Kittay, is not that without a public that is seen as
representing both parties in care relations, just care cannot be provided. That is to say, the fact that the original position,
if successful, constructs the conception of a will that is impartial in its form and hence can represent also dependents.
That she does not consider the way in which dependents are dependent on their caregivers in principle is seen, for
example, where Kittay argues that “[t]he dependent, however, cannot assume the burdens and responsibilities of social
cooperation while in the state of dependency, even though as a citizen he or she should be able to enjoy the benefits of
social cooperation. A dependent can define the terms of political participation only to the extent that she can speak on
her own behalf, can be heard as an independent voice… and can act on her own behalf. As for the rest, she must
depend on those responsible for her well-being” (Kittay 1999: 91). Hence, again, we see that Kittay does not consider
the way in which the dependent is dependent on her caregivers as a principled problem in a rightful or virtuous relation.
If the caregivers are virtuous, the rights and well-being of their care-receivers are assumed to be met.
lxii One way to provide a Rawlsian ideal account of why we need the state in the first place would involve revising his
conception of the ‘burdens of judgement’ by pointing to how the above mentioned problems of application of general
principles entail a variety of incompatible, yet reasonable results. By pursuing the argument outlined in section on Held
above, this argument could yield an ideal reason for the establishment of a state with rightful standing with regard to all
care-receivers and their caregivers, if they have any. Second, Kittay could emphasize those aspects of Rawls’ texts – most
prominently in his later works – in which he emphasizes that his theory of justice as fairness aims to capture the shared,
public point of view, namely the point of view of the state. See, for example, Arthur Ripstein’s reading of the Rawlsian
position in "Private Order and Public Justice: Kant and Rawls" 92 Virginia Law Review (2006), pp. 1391-1438) for such
a reading. On this reading, it’s no longer an argument that aims to identify what private society or private persons should
do – which opens up the door for all of Nozick’s libertarian objections – but an ideal argument that emphasizes what a
‘public society’ or the public authority must do. According to this interpretation, there is therefore a crucial difference
between a ‘private’ conception of social cooperation and a ‘public’ conception of social cooperation that isn’t captured
by Kittay’s or any other voluntarist interpretation of Rawls’s position.
lxiii I expand upon this point with regard to Kant’s position in… [reference deleted].
lxiv Therefore, first, to make private care relations rightful, Rawls and Kittay owe us an account of why the state must
have standing in all particular fiduciary care-relations. Consequently it does not only relate to parental relations, but also
to relations between all (licensed) professionals and their clients, such as relations between lawyers and their clients,
physicians and their patients, professors and their students. It is this aspect of the account that I find somewhat lacking
in the accounts provided by Kittay and Rawls. Second, although Rawls and Kittay have a well developed account of
redistributive systemic measures, such as those securing everyone so-called ‘welfare’ rights, or ‘universal’ rights to food,
housing, health care, education, and so on, they also owe us an account of why the state has a right to institute such
measures. I have suggested a way in which they can give such an account.
lxv Naturally, the state’s obligations towards married couples and domestic workers also have such a two-fold structure.
On the one hand, the state will enable uphold private right, namely through public institutions (governed by public right)
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necessary to enable enforceable private rights concerning marriage and domestic workers and their employers, and on
the other hand, there will be public right provisions to ensure wider institutional protection of weaker groups in these
relations - whether they be the workers, the physically challenged, or women – to ensure that they can be or become
active citizens taking part in public society and reason. Hence, in addition to instituting public legal institutions
protecting everyone’s rights under private fiduciary laws, the state will also provide an institutional framework that not
only ensures that everyone is subjected to systems that are under public control, but also which secure the systemically
weaker groups rights by giving them claims on these institutions, namely to welfare, education, health care and so on.
lxvi The main point is that the theory of justice will distinguish between a private right and a public right account of care
relations, even though public right is part of the solution to enforceable private right (transform it into enforceable
private right). Hence even when we analyze care relations from the point of view of justice, we don’t to analyze all the
relations through only one pair of lenses. Instead the perspectives of private and public right complement each other in
their analyses of just care relations as provided by the state. To simply a little, the two perspectives are fundamentally
different in that the private right perspective analyses the relations through bilateral lenses – the relations between the
particular caregivers and care-receivers – and then sees public authorities, as governed by public right, as constitutive of
making these rightful. In contrast, the public right perspective focuses on how these public authorities function as
systems of law as well as on the question of how to ensure that particular care relations function within a just systemic
whole. The public right lenses are fundamentally omnilateral or systemic lenses, and their aim is to ensure that the wrong
kinds of private dependency relations don’t arise in ‘the basic structure’ or in the public political, economic and financial
systems. In this sense public right ensures that the public institutional whole protects each and is consistent with
everyone being able to work themselves into active citizens participating in public life (insofar as their mental capacities
allow for it).
lxvii Nevertheless, I do not mean to preclude the possibility, nor need my argument preclude the possibility, that on the
metaethical or metaphysical level ethical principles and/or freedom might be prior to principles of justice. This is why I
am quite sympathetic to Held’s proposals that the ethical perspective in important ways is prior to the perspective of
justice and that it demands that we act from a moral motivation. My argument in this paper has been that even if this is
the case, it does not entail that the perspective of care is prior to the perspective of justice. Another way of saying it is
that the perspective of virtue is not identical to the perspective of justice and that there are ways in which the perspective
of justice is prior to the perspective of virtue. In addition, I have suggested that the perspective of justice is not a single
perspective, but two complementary perspectives – namely that of private right and public right. When our approach to
care relations makes use of the distinctions between private and pubic right as well as the important way in which care
cannot be prior to justice, the account that follows seem to unite much liberal thought and care theory in a way that
captures the concerns of both.
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