A Right to Care
8 Anne Alstott argues that primary caretakers of children ought to be supported financially from the public purse, so that they might be enabled, empowered, or freed to participate in wage and labor markets, improve or commence their own education, or better their eventual retirement options. Alstott thus joins a growing number of feminist public intellectuals (such as Deborah Stone and Mona Harrington), law professors (including Mary Becker and Martha Fineman), and political philosophers (most prominently Eva Kittay) in arguing for greater public support for the many women and some men who do the world's "dependency work": the years-long labor, largely unpaid, of providing the material support, continuous care, and emotional nurturance to infants, children, the aged, the disabled, and others who would die or suffer serious deformation without it.
But Alstott's argument is distinctive, both in its particulars and in its larger philosophical assumptions. On the particulars: where previous argument suggested that financial support should come in the form of direct payments to the caretaker and as compensation for the labor, Alstott argues for deposits to accounts targeted at improving the caretaker's eventual autonomy. But more important, the philosophical ground for the proposal is quite different. Fineman, Becker, and Kittay all argue that the largely unpaid or underpaid and profoundly relational nature of dependency work, combined with its obvious social importance, jointly constitute a challenge to both the liberal valorization of the autonomous life and the efficiency and desirability of labor markets for promoting that life. We need to modify or abandon that liberal conception, all of these thinkers have argued, so as to better understand the "public value" of relational caregiving labor, and thereby pave the way for its public support.
Alstott's tack is different. She agrees that there is a tension between the liberal ideal of an autonomous life and the distinctively tethered demands of unpaid dependency labor. But she does not criticize the ideal of autonomy in reference to the reality of dependency labor. Instead she argues that the limits on autonomy occasioned by such labor should lead us to compensate the dependency worker for his or her autonomy deficit.
Alstott's proposal for caretaker grants thus rests on traditionally liberal ground, and opens up a novel line of argument for the public economic support of caretakers: if Alstott is right, liberalism might underscore, rather than undercut, these claims for support. In these comments I want to further that novel line of argument. The dependency worker in a liberal state, I will suggest, has a right to the sort of support Alstott advocates. An individual has a right, more specifically, to provide care to her or his dependents without risking impoverishment or dependency. That right to provide care without risking impoverishment or dependency is comparable in importance and priority to the widely recognized core liberal rights of privacy, speech, property or contract. We might call this right to care, for short, "doulia rights"-borrowing from Eva Kittay's provocative coinage of the term "doulia," a term that was itself borrowed from the Greek, and meaning the material support needed by and owing to the caretaker who provides for the most dependent among us. "Doulia," as used by Kittay, is the support (or supporter) one needs when caretaking, so as to ward off the impoverishment or dependency entailed by the nature of the work-as Alstott notes, the lack of exit opportunities, extending over a period of years, the emotional and moral commitment to the work that precludes strikes or work stoppages, the potential for emergency or uninterrupted round-the-clock presence on the job, and so on. A "doulia right," briefly, is the caretaker's right to provide high-quality care (continuous, long-term, and uninterrupted) for dependents, but without a resulting risk of extreme impoverishment. If this right exists, then we should support dependency workers from the public purse because the state has an obligation to somehow ensure that individuals can engage in those practices-caretaking-protected by the right to care.
I offer this argument as an extension of Alstott's, not as a challenge to it. Whereas her case is founded on the liberal goal of autonomy, I believe that the basic moral principle at stake is that caretakers have a right to this support.
I'm not sure this will be viewed as a welcome extension. It is noteworthy that Alstott, Kittay, Fineman, and Becker have not put the case in this way. Alstott's avoidance of rights discourse is especially striking, given her evident desire to couch the argument for support of caretakers in terms of liberal values. Still, the avoidance of rights arguments is understandable. At least two familiar features of liberal rights, as constructed in our legal culture, suggest a deep inhospitality of rights (and of liberalism) to the needs of caretakers, and hence an incompatibility between the logic of rights and caretaker interests.
First, as construed in this country (less so elsewhere) rights have been almost uniformly "negative": rights provide a shield against wrongful or excessive state action, but rarely if ever an entitlement to state action, or a mandate that states accept some sort of responsibility for our well-being. Rights delineate what the state may not do; they do not delineate what the state must do. Thus, for example, we have negative rights against state censorship, but no positive right to the education, or the material resources needed to provide one; we have rights against various forms of police misconduct, but no positive right to state protection against private violence. A "doulia right," if it exists, is a quintessentially positive right: the right it protects is the right to something from the state, not a right to be kept free of it.
Second, rights in this country (again, less so elsewhere) have consistently valorized what might be called the "heroic individual": the untethered person making his mark upon the world through independent thought, speech, and action. The "doulia right," even if couched in terms of autonomy, is not of this nature. It protects the potentially autonomous self against threats to autonomy posed by the demands of relational, tethered, and other-directed, albeit socially valuable labor.
Both the content of the doulia right-support for the relational laborer-and its form-imposing obligations on the state to affirmatively assist individuals in their private lives, rather than imposing constraints against state intervention into private lives-are seemingly at odds with the understanding of individual rights at the core of political liberalism. Most feminists (Alstott is an exception) who have addressed this issue have thus seen liberalism, and the rights tradition it has fostered, as irremediably hostile to the needs and interests of caretakers.
We should not, though, mistake a historically contingent feature of rights with their necessary core. That rights have been, to date, and for the most part, negative limits on states, rather than positive declarations of state obligations, and have traditionally protected independent individualist action and freedom from relational bonds rather than the freedom to engage relationally without undue harm, is not an unalterable truth about rights. As important as the limits of liberal rights are their aspirational and rhetorical possibilities. If we focus on the possibilities offered by rights rather than their limits, other features are revealed. Three specific features suggest an affinity between rights and the sorts of protections being urged for dependency workers, and-although not labeled as such-actually figure prominently in Alstott's argument. Together they suggest a case for the right to a protection of the sort Alstott is proposing, in outcome if not in form.
First, rights rhetorically acknowledge what we fundamentally value. They are invoked to protect aspects of life that we collectively view as so central to both individual and social wellbeing. We have rights to speech, and religion, for example, at least in part, because we have been largely convinced that robust debate and free inquiry and unfettered spiritual exploration are essential to a healthy society and to healthy, mature, adult life.
Second, rights protect against the lingering harmful effects of historical societal domination, policing against harms that have proven resistant to the ordinary mechanisms of political and moral reform. We have rights to nondiscrimination on the basis of race, for example, in part because of the legacy, felt in the private and social spheres as well as the public one, of a scarring history of slavery, social and economic subordination, and irrational discrimination against African-Americans.
And third, we have rights where ordinary economic and political levers of change prove unavailing in efforts to improve individual well-being. We have rights, for example, although not constitutionally protected rights, to a minimum wage and safe working conditions because of a justified fear that without them, free contract will at times not yield a bargain that raises workers above subsistence levels of compensation, and we have rights to legislation that does not discriminate on the basis of sex or sexual orientation, in part, because of a justified fear that without them, the political process will reflect traditional conceptions of gender and sex roles that have proven over time to be dysfunctional.
All of these features of rights suggest that a right, not simply a sound policy justification, supports something like the support that Alstott and others propose. Dependency labor is essential to a decent and liberal society: without this care, and a lot of it, we will not have the entrepreneurs, iconoclasts, free thinkers, producers, consumers, mavericks, artists, and dissidents so valued by liberals and libertarians both. More fundamentally, care is necessary to both the eventual independence and the moral development of healthy adults, on any definition of health or maturity. Dependency labor is also often a substantial part of, although by no means essential to, a decent adult life: for many, parenting is the central adventure of a lifetime, and for many more, whether it is enjoyed or not, it is immensely consuming and demanding labor. The provision of care to our dependents is as central to most of our lives as the enjoyment of culture, of nondiscrimination, freedom from state harassment, and of political and civic participation, now protected by liberal rights. Caretaker rights recognize as well as protect the fundamental value we place upon the provision of care to dependents.
Second, that dependency labor is so underpaid or unpaid as to leave those who provide it vulnerable to impoverishment, dependency, or the infringement on autonomy described by Alstott, is in large measure a function of the gender of those who perform it: the undercompensation and devaluation is a part of the near-intractable legacy of a history of gender-role differentiation that has proven harmful to all of us, but disproportionately so to women. Caretaker rights may prove as essential to unraveling and reversing that legacy as antidiscrimination rights in employment.
And third, as Alstott's "No Exit" imagery suggests, the very nature of dependency labor precludes effective workplace and legislative bargaining to achieve the protections for dependency labor she and others seek. Caretakers do not readily walk off the job when a more appealing opportunity comes along. That fact alone is crucial: it means, in effect, that dependency labor has all of the vulnerabilities, but virtually none of the freedoms, of "at will" employment. Likewise, the time-consuming nature of the work, coupled with the need of single parents to engage in wage labor simultaneously, severely limits the political participation of the most economically vulnerable of these workers. It is hard even to vote, much less lobby, when there are dishes, diapers, homework, housework, meals, bottles, and baths at the end of a ten-plus hour day waiting tables, scrubbing floors of other people's houses, making beds in hotel rooms, or working cash registers. Without a partner, a community, or collective economic support, active civic or political participation in the life of one's community is virtually unthinkable. The "doulia right" recognizes the dilemma and issues a moral imperative that the state meet it.
Does the rights argument for caretaker support add anything? In one sense, no: this is not the sort of right that can be located in our founding documents or that will be or could be addressed by courts. Doulia rights, if they exist, must be given content by legislatures through the normal mechanisms of democracy, not by courts through the extraordinary means of judicial review. What is added, then, is an argumentative dimension, not an institutional change of direction. But that argumentative dimension might be substantial. Premising a right to provide care without risk of impoverishment, we can have a discussion about the best way to guarantee the right: whether through the grants proposed by Alstott, through subsidized private insurance, through employment benefits, or, for that matter, through more expansive definitions of traditional marriage. But whatever the merits of particular solutions, the danger that I see is simply that outside of the context of rights-of an agreed upon imperative to structure our political and social life so as to protect this activity-Alstott's wise proposal will be met by and then drowned in a tide of competing needs for scarce public resources, even apart from the principled libertarian objections that she ably counters in her proposal. The recognition of rights, if nothing else, in the realm of public, legislative argument, provides a way to make sense of our collective needs in light of our understandings of what we value. <
Robin West is a professor of law at Georgetown University Law Center and the author, most recently, of Re-imagining Justice. She lives in Baltimore with her husband and three children.
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Originally published in the April/May 2004 issue of Boston Review.