Objections: Power and Self-Interest

There are objections to bringing care under the liberal paradigm of the worker, who contracts freely and self-interestedly in a capitalist labor market. These objections concern a perceived tension between care and contract, where “contract” is used to signal relationships entered as transactions between self-interested individuals, with terms defined by the parties. The first objection concerns power: when individuals with unequal power define the terms of their agreement, the more powerful individual will get better terms. The second objection concerns self- interest: contracts are self-interested, whereas care is altruistic.

1. The problem of power, discussed by Carole Pateman (1988), Okin (1989), Martha Minow and Mary Lyndon Shanley (1996), and Tamara Metz (2010), is that due to power inequalities between men and women, female primary caregivers in different-sex relationships may be pressured into disadvantageous agreements, and caregiving will amplify their vulnerability over time. For example, replacing mandatory alimony with contractual terms could remove protections from women made vulnerable through caregiving. Apparently freely entered contracts can perpetuate power hierarchies (Pateman 1988; Minow and Shanley 1996).

This is a problem for liberalism insofar as liberalism protects freedom of contract. If spouses freely choose an arrangement that makes one economically vulnerable, why should one partner be held financially responsible? Allowing spouses to contract regarding marital property might seem to protect liberal freedom - yet also threaten women’s equality. A number of theorists have attempted to answer this either by questioning the freedom of such choices or by appealing to egalitarian distributive principles to justify mandatory alimony or broader redistributive institutions for caregiving (Rawls 1997; Metz 2010; Alstott 2004; Okin 1989; Brake 2016).

The model I have proposed suggests another option, one compatible with those just mentioned. On this proposal, care is treated as work, but not as fully contractual. In the purest form of contract, contracting parties choose individualized terms. But law restricts the terms of contracts, by barring unjust enrichment, defining what we can contract, setting a minimum wage, and requiring worker protections. My proposed model limits agreements between spouses or partners by precluding unpaid care work without worker protections. Care work, it turns out, is in tension with the full and unrestricted application of contractual principles not because care is but because work is. Workers, even if their choices are free and the background distribution is fair, cannot contract into severely disadvantageous terms because of labor law protections.

However, legally protecting caregivers can increase women’s vulnerability to power inequality by encouraging interdependency (Robeyns 2011). One warning comes from recent empirical research on same-sex divorce in the United Kingdom by Charlotte Bendall and Rosie Harding. Their study suggests that legal recognition of same-sex marriage may increase financial interdependence, which the previous lack of recognition discouraged. Drawing on in-depth interviews with lawyers and clients in same-sex dissolution proceedings, they hypothesize that “resistance to both compensation and maintenance ... reflects pre-civil partnership approaches to relationship breakdown and the previous lack of legal support on the breakdown of longstanding same sex relationships.” But they predict that

[a]s those in same sex relationships find that they are no longer positioned outside of or “against” the law, approaches to money management in legally recognised same sex relationships may shift towards greater levels of financial interdependence. Given the assumptions around financial interdependency that are inherent in the legal recognition of same sex partnerships, and the consequent reduction in welfare to support to those in same sex relationships (including those who do not choose to marry or enter into a civil partnership), it seems likely that higher levels of financial interdependence within same sex couples will result.

(Bendall and Harding 2018, 151-152)

This supports the objection: if legally recognizing financial interdependence encourages it, can the state recognize unpaid care work without incentivizing it and thereby reinforcing gender norms that facilitate power imbalances and the exploitation of care? This is a crucial practical problem, not just for my proposal but for any account of spousal support, intimate caregiving unions (Metz 2010), piecemeal directives governing relationship practices (Chambers 2017), or caregiver protections. One (practical) question is whether it is possible to support care work without reinforcing gender norms. Another (theoretical) question is whether it is required by justice: if care work were protected as work, would its exploitation - its gender-structured imbalanced performance - be objectionable on liberal egalitarian grounds?5

It would. Even if care workers have a full - and ideal - set of worker protections, there is still reason for the liberal state to discourage imbalanced caring and the gendered imbalance in caring attitudes. The reason is the corrosive effects of imbalanced caring on self-respect. Due to the corrosive effects on self-respect, the state has reason to be concerned about any exploitation, in which one group subordinates its interests to another group, if that subordination is maintained by the basic structure.

2. Another theoretical problem arises from a tradition concerned that altruism may be corrupted by self-interest. This is the lingering reservation that there is something fundamentally antithetical between atti- tudinal care and paid work - that paid relationships are not authentic caring relationships, that work is less valuable than care, and that care is valuable precisely because it is not self-interested or done for reciprocation.

It might be thought that what we value about caring is its authenticity. Paid emotional labor - the smile of a flight attendant - is only valued because it mimics what is truly valuable: authentic care. If authentic care in the home is treated as paid labor, the objection goes, this more authentic care may be “corrupted” into a performance, a simulacrum of truly valuable care. But this objection overlooks the extent to which unpaid caregivers may perform care when tired, frustrated, or otherwise preoccupied.

This objection arises from the long tradition of seeing care and contract, in its self-interested aspect, as oppositional - by conservatives who oppose treating marriage as a contract rather than an altruistic union and by feminists who oppose the self-interested rational contractor model (see Brake 2012, 102-107). Feminists have pointed out the ubiquity of noncontractual relationships and the unrealistic abstraction of the model of the atomistic contractor. A broader range of moral and political philosophers (famously, GWF Hegel in his Philosophy of Right [1995]) have argued that contractual relationships are incompatible with the altruism of caring relationships.

To respond, it is important to distinguish legal contracts, or legally binding agreements, from relationships characterized by mutual self- interest. Caring relationships are compatible with contractually entered legal arrangements: legal contracts can protect caregivers, and treating legal marriage (or marriage-like law) as contractual in some ways both respects liberties and removes sexist assumptions from law (Brake 2012, 102-107). But this does not speak to the deeper perceived tension between caring relationships and relationships entered from a self- interested standpoint. This alleged opposition might be marshalled to defend the conceptual dichotomy between work and care.

From the moral point of view, encouraging unpaid caregivers to see themselves as workers who are owed compensation might seem morally detrimental. In most cases of caring, tensions will arise between prioritizing the cared-for, the caring relationship, or self-interest. Often, the carer’s sacrificing self-interest for the cared-for, as parents do for their children, is seen as morally praiseworthy.6

I find this tension somewhat overstated: a relationship entered into out of self-interest can also be authentically caring, and authentically caring relationships can be regulated to protect the interests of each party. Law can protect against vulnerabilities arising in care relationships. Furthermore, as John Tomasi (1991) has pointed out, altruism conceptually depends on the giver’s having an entitlement to what is given. Recognizing the caregiver’s separate interests, from this perspective, is a condition of altruism. While the self-interested contractor may seem morally inferior when contrasted with the altruistic self-sacrificer, the caregiver’s ability to make self-protective claims precludes the morally defective alternative of entitled, parasitic exploitation.

My proposal might seem vulnerable to practical reductios. Does it imply that children owe payment to their parents for care received? No, because children are not in a position to agree to terms and because imbalanced caring for those who cannot care for themselves does not have the corrosive effects on self-respect that subordinating one’s needs to those of an equal does. (Although, of course, caring for dependents can take a heavy toll on the caregiver’s physical and mental health.) But the proposal could have other implications for family relations: for instance, perhaps adult children who provide uncompensated care for elderly parents would have a larger claim against their estate than their siblings.7

Care ethicists concerned with the creeping commodification and con- tractualization of intimate life might object that this strategy seeks to gain respect and power for caregivers by assimilating care to work. Care is valuable itself, and not merely qua work. This is true, and I have argued elsewhere that the liberal state has reason to recognize this value. My point is not that care is valuable only qua work but that caregiving can be work and deserves the protections and respect accorded to work.

For those concerned with commodification, as well as socialist feminists who argue that feminism is incompatible with capitalism, my proposal might seem like a reductio of liberal feminism - rather than attacking commodification and markets, it subordinates one of the last holdouts to market norms to those very norms. I do not assume that the ideal feminist liberal egalitarian society would be capitalist; but in a capitalist society, the power of market forces should be recognized and regulated.

For care is not, in fact, a holdout to market norms, although it is idealized as such. Much caregiving is paid and subject to market norms, without the protections offered to other workers. Romanticizing care as altruistic, or free from market pressures, serves both to rationalize excluding paid caregivers from full legal protections as workers and to obscure the work done within the home by women. Markets pressure care in many ways. Caring for children or for elderly people or others who need care is expensive, and women who do such care have to weigh the costs of care and their earnings from paid work. Markets shape not just caregiving but the choices to have children and to marry (McClain 2013; Becker 1993).

The larger problem is the extent to which instrumentalizing workers, treating them without dignity and as replaceable, and commodification - treating all goods as reducible to money - have crept into all aspects of life. Regulation to protect workers’ rights is a way to push back against the former. Policies valuing attitudinal care and caring relationships, in which others are valued for their own sakes, not instrumentally, push back against both. Even if care is recognized as work, the value of caring relationships, their unique goods, and the distinctive vulnerabilities of caregivers can simultaneously be acknowledged.8

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