Justice as care

Abstract

Late last year, I was asked to contribute to an interdisciplinary seminar on the theme of care. Speakers were drawn from a variety of fields, ranging from nursing to geology to plant sciences to, in my case, restorative justice. Each was asked to reflect briefly on how care featured in their personal work or their academic disci‐ pline. That was probably an easier task for the social scientists on the panel, though even the physical scientists spoke eloquently of how much they cared about their research and its impact. In pondering what I could say on the topic, my thoughts went to a book I had read recently entitled, Caring and the law, in which the author, legal scholar Jona‐ than Herring, proposes that the West is facing a ‘crisis of care’, and one that mod‐ ern law is ill-equipped to deal with. This crisis has been occasioned by a range of demographic and societal changes that mean that more people are now spending longer periods of their life, either dependent on the care of others or responsible for providing care to others. Yet while the burdens of care are increasing, the resources to deliver it are diminishing. It is not care itself that is the burden. Care is a basic human need and a funda‐ mental social right. None of us could survive at birth or in infancy without receiv‐ ing altruistic care from others in the form of food, nurture and protection, and we cannot develop or thrive thereafter as persons without the constant giving and receiving of care. Care is essential to human existence; we literally cannot live without it. But that is not something properly recognised by the modern liberal legal order or by the competitive market economy. Care is also a fundamentally relational reality. That is to say, it necessarily takes place in the context of personal relationships that involve attachment, vul‐ nerability, compassion, interdependence, self-giving and mutual obligation. But, Herring argues, the law prizes a different – and perhaps more stereotypically mas‐ culine – set of values to do with personal rights, autonomy, rationality, equality and freedom of choice. The law’s assumed subject is the solitary, unattached, selfsufficient, individual adult male, and its chief concern is to protect his sovereign rights and freedoms from the interference of others. As Herring (2013: 46) explains: