Justice and Care Relations

We may identify three distinct trends in the existing Kantian literature on justice and care relations. First, some important work - such as that by Carol Hay (2013) and Sarah Clark Miller (2012) - utilizes Kant’s ethics, and especially his account of imperfect duties, to explore Kantian approaches to care for others and for oneself (including under conditions of oppression). Second, some Kantian-influenced care theorists - the pathbreaker being Eva Kittay (1999) - re-envision John Rawls’s Kantianism to explore issues of justice regarding dependency and care relations. Third, some-such as Barbara Herman (1993b) and myself (2007,2012a, 2012b, 2020b)17 - argue that the starting point for a Kantian account of rightful care relations must be his account of right (justice), rather than his account of virtue (first-personal ethics). On this approach, justice concerns enforceable rights. Virtue (maxims, including motivations) cannot be enforced; indeed, any attempt at enforcing virtue both necessarily fails and deprives persons of their innate right to freedom. That is to say, as noted earlier, to act virtuously according to Kant is to act only on maxims that can be thought or willed as universal laws for rational beings and that incorporate the moral motivation (duty). A maxim is a subjective rule of action, meaning it is the principle that is governing how I - from my first-personal point of view - go about pursuing an end in the world. Now, no one external to me can make me set any particular end and act from a moral motivation: others can threaten me or make me act consistent with an end, but they cannot make me set a particular end, let alone set that end because it is the right thing to do (act from duty) (1996a, MM 6: 239). Which maxim I act on - what and why I do what I do - is, in other words, not within reach of coercion - and coercion is the legal-political means. Moreover, switching from the analysis of virtue to that of right, Kant argues that all rightful uses of coercion - that is, any uses of coercion that are just - must be consistent with each person’s innate right to freedom. The latter, in turn, is defined as their right to “independence from being constrained by another’s choice . . . insofar as it [their exercise of freedom] can coexist with the freedom of every other in accordance with a universal law” (1996a, MM 6: 237). Hence, if somebody uses coercion or threatens me with coercion in an attempt to make me virtuous (set a particular end and act from moral motivation), not only will they necessarily fail (as trying to do so is metaphysically confused) but they will also thereby wrong me by threatening me or by committing battery. Hence, virtue cannot be enforced, and any attempt at doing so will fail and involve judicial wrongdoing, and these kinds of philosophical problems are major reasons why I believe that Kant’s account of virtue cannot do the work of his account of right with regard to care relations either.

Turning to Kittay’s revised Rawlsian account, I believe that also it doesn’t work as a complete critique of rightful care relations. The main problem is that this type of account - so, a problem it shares with Rawls’s own account - is that it only provides an account of public right (of citizens’ legal claims only on their public institutions) and not one of private right (of persons’ legal claims on each other as private persons), which is why it struggles to critique family law (as many feminists since Susan Moller Okin (1989) have pointed out in relation to Rawls’s theory).18 In other words, even if we accept that these accounts can justify the state’s right to redistribute resources to care-receivers and care-providers, it cannot (as Rawls cannot) provide an account of family law (private law); the caregivers’ castle remains out of reach for these Rawlsian theories of justice. To account for family law, I argue in the following,19 we need to develop one of Kant’s core proposals, namely that the home requires its own private right (law) analysis, namely an analysis he calls “status right.” We will also see that once an account of innate right is combined with such an account of private right, an account of public right (systemic justice) can complement them, yielding a more complete theory of rightful care relations. That is to say, as indicated earlier, a core proposal of Kant’s that I believe care theory can draw upon is that a sufficiently nuanced account of rightful care relations requires several distinct lenses of right: innate right, private right, and public right. Innate right is the right to freedom and some important rights that are analytically related to it, private right is an account of rightful private relations, whereas public right is an account of citizens’ claims on the public authority. An important aim in the following is correspondingly to show why it is a mistake to think that any one of these analyses can do all the philosophical work with regard to critiquing rightful care relations.

To illustrate this latter regarding the need for a multifaceted analysis of care relations, let me also briefly indicate how Kant’s philosophy can help us see some sources of the problems characteristic of much natural right or libertarian style analyses of legal guardianship, including feminist analyses of this kind. To start, as is well known, natural right analyses that seek to explain all rightful relations as occurring between two agents struggle to make sense of legal guardianship, since guardianship involves someone (sometimes referred to in this literature as “patient”) who lacks exactly such agency. As emphasized by A. John Simmons (1994) in his attempt at providing a Lockean analysis of care relations involving anyone who cannot assume moral responsibility for their actions - due to immaturity or illness or disability - the problem is that the care-receiver cannot exercise rights and so is not an agent in this sense of the word. Hence, the special analysis needed is one that doesn’t fail to keep this fact in mind, and he thinks that this is where Locke fails since he argues that corresponding to parents’ rights to their children is the children’s duties to their parents. But children need special rights exactly because they are incapable of exercising rights or duties (obligations); hence, in some irreducible way, children cannot be agents insofar as they need special rights. Moreover, if children are not yet agents as they cannot exercise rights, how can they have rights at all? This, Simmons concludes, is a philosophical problem Locke (and Simmons on his behalf) cannot solve because this kind of natural rights analysis requires two agents, but in the Lockean sense of an agent, there is only one here, and hence it is not possible to envision a rightful care relation as existing on this analysis.

Correspondingly, if one follows the feminist natural right advocated by Virginia Held (2006), not only does it seem impossible to get into view an independent voice for dependents, since the only way to do so appears to go via their caregivers, in which case the relation between two agents collapses in similarly problematic ways. In addition, it seems impossible on these kinds of approaches to explain how the rights of, say, abused children correspond with the duties of particular responsible adults. Again, this is a problem you find already in Locke’s analysis of parent- child relations: Locke argues that abusive parents forfeit their rights and so foster parents become the rightful parents of abused children. He is unable to explain, however, who has an enforceable obligation to become foster parents - a problem that only becomes more intractable once you not only assume abusive but deceased parents. And to mention a final challenge often noted on this type of position, it appears impossible to make sense of any distinction between human care rights and non-human animal rights since insofar as we are so incapacitated that we cannot be agents, it seems our functioning levels are not different in kind and may even be lower than many non-human animals.20 Kant’s analysis of status right in combination with his accounts of innate and public right provides a solution to all these problems that is consistent with a basic philosophical commitment to each person’s innate right to freedom. Moreover, it is an account that shows a principled way of accommodating embodied, social concerns of nature that is worth taking seriously. Reasons of space makes it impossible to go into detail here, but let me sketch some of how this account goes - starting with innate right.21

Kant’s account of innate right - understood as rights analytically related to each person’s innate right to freedom - is ingenious. Kant argues that although we can distinguish between our person and our bodies from the point of view of virtue, from the point of view of right - a perspective that is inherently spatiotemporal as it concerns enforceable restrictions on interactions in space and time - there is no such distinction. Hence, from the point of view of right, the relationships between our bodies and our legal persons must be thought of as analytic: my legal person and my body must be regarded as coextensive (1996a, MM 6: 237f). So, if you take my money from the table, you steal from me, whereas if you wrench it from my hand, you commit battery (as you subject my legal person to violence). Moreover, anyone who, in acting on another’s behalf, physically handles their body when incapacitated - such as a physician caring for an ill person or a parent caring for a child - must be seen as exercising a right to legal guardianship over us (and, so, must act within the boundaries specified by relevant laws). In other work (2012b, 2020b), I demonstrate how this analysis of innate right is also useful and important for understanding classical feminist issues such as women’s right to abortion, rightful sexual interactions, and the seriousness of legal wrongs that deprive anyone of their right to bodily integrity, such as rape. Indeed, in my view, this is one of the places where the strength of Kant’s account of absolute moral prohibitions and the idea of doing wrong in the highest degree shows itself: because we are embodied beings, we can be trapped in situations from which there are no morally good ways out, where the choice facing us is either to let someone wrong us (materially and/ or formally) or to use violence against others that is inconsistent with treating them as having dignity (formally wronging them). People whose social (racialized, sexual, gendered) identities are severely oppressed run the real risk of having to face the kind of brutalizing violence that leaves them with no morally good way out; good self-care becomes impossible.

Furthermore, if we follow Kant’s lead and recognize that an analysis of right must accommodate embodied, social human concerns (1996a, MM 6: 217), we can better explain why crimes that involve bodily wrongs, such as rape, are particularly heinous - with added heinousness tracking such violence within intimate relations of trust, such as spousal rape or incest - and should be punished more severely than those that do not and why some kinds of bodily wrongdoing are more heinous than others. Being subjected to bodily violence can unground human beings in fundamental ways, the aftermath of some of these acts are particularly hard to handle, and some bodily wrongs are more heinous than others because of the ways in which the violence comes at us (cf. earlier discussion of Brison in relation to Kant’s account of the predispositions to good in human nature). Kant’s account of innate right together with the earlier account of human nature can therefore help us capture the importance of reforming how our legal-political and health-care systems respond to sexual assaults, for instance by changing how we conduct assault trials and how police and health-care personnel care for people who have been subjected to sexual assaults. We need, in other words, to reform these legal-political systems of care because they do not currently fulfil their intended function of providing a public means through which we - human beings - can pursue their rightful claims against one another in ways that are consistent with self-care. After all, if they did, it would simply not be the case that so many victims of sexual assault decide that they would rather not pursue justice than to go through the medical and legal processes that doing so entails. That is to say, some victims find that going through these medical and legal processes is within what they can responsibly put themselves through - indeed, some find it empowering to do it. From the point of view of our legal-political system, however, the fact that some can do it is insufficient. Insofar as we want a functioning legal-political system, the fact that very many judge that going through the current processes is something they cannot responsibly do to themselves is of central importance. Institutional reform is therefore needed so that these institutions no longer continue to exacerbate the trauma undergone by those who have been subjected to violence and such that they can reasonably be trusted to be part of restoring rightful relations (and not as it currently is; it is statistically very unlikely that they will win) and facilitate healing for the victims. Again, the aim of a legal-political system must be reconcilable with our highest good being to bring happiness and morality into union: it must be possible, in other words, to go through these legal-political process with a reasonable hope that doing so will be a means through which to start the process of full emotional (embodied, social, and moral) healing.22

In addition to his account of innate right, as mentioned earlier, Kant has a unique (private right) account of what he calls “status relations.” Kant rightly considers this account to be a novel contribution to the history of legal-political thought (1996a, MM 6: 282). Status relations involve relations where persons have claims not only against one another with regard to some object (as we do in private property and contract right) but to one another’s (legal) persons. These relations involve rights to shared homes (personal lives) and not to be abandoned. Moreover, such status relations are of three kinds: marital relations (between two equals who consent to forming a legal “us” involving a shared home); parent-child relations (between two unequal parties where one party - the child - has not consented to the relationship), which can be developed into a fuller account of legal guardianship; and relations between families and their servants (between two unequal parties where the one party’s consent - the servant’s - is complicated by a lack of material independence). Kant proposes that in order to conceive of these relations as rightful - as consistent with each person’s innate right to freedom and not as involving unjustifiable dependency, including enslavement - we need laws that take into account the ways in which these relations involve (sometimes asymmetrical) dependencies and fusions into one, shared legally recognized home. As we saw earlier, we cannot, for example, analyze relations between parents and children by assuming both to be morally responsible agents. After all, children are incapable of moral agency insofar as they need special rights and they have neither consented nor can they consent to be in the relationship; they did not consent to being born, and they cannot choose to take care of themselves instead of being cared for by a guardian.

Similarly, Kant argues that we should not analyze relations between families and their servants through ordinary contract law - which much legal practice in the world (wrongly) does today - since such analyses fail to take into account the asymmetrical material dependency of the servant upon the family in whose home the servant lives without being a full, equal member of the household. Kant then argues that these dependency relations can be made rightful only through publicly posited status law (including family law) - thereby dismantling the so-called “man’s” (or the “caregiver’s”) “castle,” understood as the notion that the home is in principle beyond proper reach of the law. Although Kant’s writings are heterosexist, his philosophical ideas can also explain why it is important for same-sex couples and people in polyamorous relationships to have the right to marry; to have the right to marry is to be able to establish a legally recognized and protected home (Varden 2007, 2020b). In sum, then, Kant’s analysis of status relations shows why establishing a public authority - a legal-political authority that represents everyone and yet no one in particular - that determines, applies, and enforces these laws is constitutive of making these dependency relations rightful, namely by giving all parties in the relationship a proper legal voice.

The earlier analysis of the embodied and social aspects of human nature - good and bad - adds to this analysis of rightful care relations by explaining important features of law and by capturing how to reform legal-political systems so that they can become more suited for human needs. For example, the account of our embodied, social human nature can explain both why domestic emotional abuse and neglect can be tempting and why it is particularly damaging. Not being safe and cared for in our own homes stunts our projects of developing, transforming, and integrating our predispositions to good in human nature because when we are vulnerable, we often have to act primarily from the animalistic attitude of survival. The earlier account of emotional health can also explain why being a parent or legal guardian of another human being requires taking into account the cared-for’s particular emotional patterns, and it also speaks to how any reasonable law recognizes that it is truly difficult to get all of this right (as we do not have direct access to another’s subjectivity). Moreover, given the complexity of human nature, improving our legal-political systems of care will include making these systems more flexible such that they are suited to the complexity of particular caring relations.

For example, parents who are struggling with drug abuse may need relief only in periods when they are unable to manage their addictions. Hence, we may imagine that in more developed or well-functioning health-care systems, parents who manage their drug abuse, including by ensuring that their children are taken care of by authorized legal guardians when their drug abuse becomes unmanageable, may not be required to forfeit their parental rights just because of their drug addiction. Furthermore, according to this Kantian approach, a public authority cannot view itself as authorized to deprive a child of access to their parents unless the parents have been proven (in court) to have committed a crime and the state provides legal guardians who will take good care of the children. Being forcefully separated from our parents is extremely traumatic for human beings as it deprives us of the background conditions we need as human children to feel safe and to develop and integrate our animality and humanity as we strive to become morally responsible persons with good lives. Hence, such separations not only deprive children of some of their most basic rights but also exemplify particularly devastating failures of justice. Among the examples of such failures are the forced separation of many indigenous children from their parents by various states - such as the Sami children in Norway - throughout much of the 20th century. The United States is currently separating many children from their parents in detention facilities for immigrant families. According to this Kantian analysis, this aspect of Norwegian history with regard to the Sami people and U.S. history with regard to immigrants will be an irrevocable source of shame and its devastating impact will continue to be felt in generations to come, by those who have been subjected to it, by those who took or are taking part in it, by all of us who permitted it on “our watch,” and by all of those who have to live with the aftermath of these horrific failures of states with regard to status relations.

In addition to his novel account of status relations, Kant has a rather complex account of systemic justice, or what he calls “public right.” In contrast to Lockean and other natural right theories, according to which the rights of the state are seen as со-extensive with the rights private individuals hold against each other, Kant argues that once the state establishes its law-governed monopoly on coercion (as it must), it must reconcile this monopoly with each citizen’s right to freedom through public right (law). The right to freedom is the right to be independent from subjection to anyone else’s arbitrary choices and to be dependent on universal law only (1996a, MM 6: 237). For Kant, this means that the state must assume special responsibility for many inherently systemic issues such as poverty, land use, the economy, and the financial system. For example, the state must ensure that all citizens always have legal access to means such that the possibility of freedom for any one citizen is not subjected to any other citizen’s private arbitrary choices, such as the decision to provide charity or employment.23 In addition, over time, the state must reform itself such that it rids itself of any notions of inherited authority and instead seeks to build an institutional, including educational, whole through which all citizens are taken care of and, insofar as their capacities allow, can work their way into beings able to participate in knowledgeable ways in public debate and public reason.24

From early on (Varden 2006), I have argued that this systemic approach to poverty provides important arguments for why it is particularly troublesome for states that much of the hard care labor in the world is undertaken by poor persons (servants) and/or by women. The state is responsible for building a legal-political institutional whole, in which the labor of caring for dependents does not fall asymmetrically on people whose socioeconomic situation tracks historical oppression and in which caregivers receive insufficient payment, or even no payment at all. Moreover, the earlier account of human nature emphasizes the urgency of this point: it is of central importance for emotionally healthy human beings that they are not drowned in exhausting care for others and also are given time and space to care about their own personal development. To fulfill its entrusted public function, the state must reform its legal-political institutional framework such that no one person or social group faces no real chance of working their way into an active, flourishing condition. In addition, of course, states must ensure that no citizen or group of citizens can rightfully choose to make it impossible for another citizen or group to get out of situations in which caring for their own well-being is practically (materially) or emotionally impossible because their “proper” role is to care only for others. Providing legal-political conditions in which each and every citizen (whether capable of moral responsibility or not) is recognized as having a right to freedom (to set and pursue ends of their own) and can exercise their duty of demanding rightful honor (of being publicly recognized as honorable insofar as they haven’t deprived others of their rights) is to provide all citizens with legal- political conditions consistent with moral valuing, namely with human beings regarding themselves and each other as having dignity (a pricelessness) and, so, (ethical and judicial) rights. Finally, elsewhere (2020b), I use the earlier account of human nature to explain why the project of providing safe homes (and not just shelters) for all citizens is a project any minimally just state must undertake and prioritize early in its development toward a more flourishing state. Although shelters suffice temporarily, and could be adequate for some rational beings, human beings need access to a home, because homes are typically necessary for us to heal and to develop, transform, and integrate our predispositions to good in emotionally healthy ways.

Finally, for the purposes of care relations, the following idea of Kant’s is particularly fruitful: as mentioned, all citizens have a claim on the public authority (rather than only on other private persons) that they face conditions in which they are taken care of insofar as their capacities are insufficiently developed or (temporarily or permanently) impaired and in which they can work their way into an active condition insofar as their capacities allow. This right to rightful care is a basic right each person born on the territory of a state holds against everyone else as matter of public law (it is a public right claim against the public institutions). To put this idea differently: as a citizen, each person born on the territory of a state has an innate right to freedom that gives them a right (ultimately) to be dependent only on the public (and not a private) authority with its law-governed legal-political institutions as that citizen seeks to realize themselves as a free being insofar as their capacities allow. Insofar as their capacities do not allow, they have a right to be taken care of within the framework of laws constitutive of legal guardianship. Because the public authority is one that represents each person and yet no one in particular, to be so dependent on it is to be dependent upon ourselves - understood in terms of a representation of our general will - as we are cared for and seek to realize ourselves (insofar as possible). And as we become capable of participating in the public processes of the rule of law, we are not thereby subject to others’ private choices. Rather, we take active part in self-governance through public law by taking part in public discussions in informed ways and by having the right to compete (based on merit) to be entrusted with public positions of authority (such as to hold public administrative offices, and to act as licensed professionals such as physicians, lawyers, or professors, etc.). The earlier account of human nature furthermore helps us envision how to reform the legal-political systems of right not only so as to ensure that everyone is secured their basic innate, private, and public rights but also to ensure that they are up to the task of providing legal-political solutions that work for us as the human beings we are. Our legal-political systems must work for those of us who are rational beings capable of moral responsibility and for those of us who are not. They must also work for all of us as embodied, social human beings who live in societies marked by serious (historical) oppression.

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