20th WCP: Care and Justice: Re-Examined and Revised

Martha Minow uses the phrase "dilemma of difference" to describe the dilemma created in a liberal framework that structures debates about equality in terms of two policy options: the formal equality option of equal or same treatment and the substantive equality option of different or "special" treatment. She argues that the framework creates a dilemma because each option risks creating or perpetuating further disadvantages for members of oppressed groups. When policies concerned with eliminating discrimination attempt to minimize the significance of difference by treating all people the same, then differences that really do matter are ignored. But highlighting difference and singling out members of groups for "special treatment" also risks perpetuating stereotypes associated with difference and having those identified as different and needing special treatment internalize messages about their difference as inferiority and inequality. Minow sums up the dilemma in the following: "when does treating people differently emphasize their differences and stigmatize or hinder them on that basis? and when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis? ... I call this question `the dilemma of difference'" (Minow 1990a, 20, her emphasis).

This paper is organized into two parts. In the first, I highlight the relational features inherent in the language of equality as a way of uncovering that which underlies and is assumed in moral and political arguments for equality. When we discover that liberal options catch us in the dilemma because both options assume assimilation into current structures, new light is shed on attempts to come to grips with a dilemma that has been particularly vexing and problematic for feminist theory. In the second part, I apply the two-fold strategy of evaluating feminist opposition to equality analysis evident in care ethics and of providing a relational critique of liberal theory's treatment of difference to highlight the connections and intersections between care and justice so as to open a way to resolving the dilemma of difference.

The Logic of the Sameness/Difference Debate

The underlying assumption of policy options of either formal and same treatment or substantive and different treatment is that for purposes of determining treatment, a case or person can be identified as either the same as or different from someone or something, a something that turns out to be an unstated norm or standard from which to draw comparisons and make judgments about equality or inequality, sameness or difference. These aspects of language are so much a part of our stream of life that we assume and rarely question the norms that are already embedded in social practices and political contexts. By asking a simple question, Minow makes the standards apparent and unsettles their presumed fixity: "[a] reference point for comparison purposes is central to a notion of equality. Equality asks, equal compared with whom?" (Minow 1990a, 51).

Once we recognize that differences are defined relationally and that judgments about equality depend on the relationships we draw between cases that confront us and an assumed norm or standard, the significance of other sorts of relationships become apparent. Judgments about similarities to and differences from norms are made in and emerge through a background complex of relationships amongst people embedded in social practices and political contexts. The norms become so entrenched in social practices and political contexts that they are assumed, go unstated, and are taken to be objective standards from which impartial judgments about difference and determinations of proper treatment can be made.

Statements prescribing equality logically presuppose the existence of agreed-upon standards and rules for determining inequalities and judging injustices. Claims of inequality presume a standard of comparison from which one differs and assume a state of equality that one ought to have. Once these standards and rules for treatment are in place and familiar, a reasonable strategy is to deny difference and demand the same treatment as those in power. In this context, members of disadvantaged groups apply the logic of treating like cases alike, assert their fundamental similarity to those in power, and use this as a strategy for securing equal treatment. It is easy to comprehend how arguments that appeal to the relevance of any differences fall prey to being misappropriated as justifications for unequal treatment or misinterpreted as expressions of one's freedom to choose different roles and activities. These fears that reclamations of difference are politically dangerous are particularly evident in the literature on the ethic of care.

We need to note that both strategies of asserting or denying difference leave the norms in place and unexamined and thereby vindicate the goal of assimilation into current structures. Assimilation, as Young points out, "always implies coming into the game after it has already begun, after the rules and standards have already been set, and having to prove oneself according to those rules and standards. In the assimilationist strategy, the privileged groups implicitly define the standards according to which all will be measured" (Young 1990, 164). Either the different person denies the difference and performs the activity in the same way according to the same rules or the different person affirms the difference and is judged less capable or incompetent. Either the different person denies the difference and struggles in a world not built to accommodate the difference or the different person affirms the difference as grounds for positive measures and risks being perceived as undeserving and in need of special treatment. As Young puts it, "[w]hen participation is taken to imply assimilation the oppressed person is caught in an irresolvable dilemma: to participate means to accept and adopt an identity one is not, and to try to participate means to be reminded by oneself and others of the identity one is" (Young 1990, 164).

The idea that norms are so much a part of a stream of life that they are assumed and rarely questioned is central to feminist critiques of traditional theory of all sorts. In the realm of moral and political theory, the idea finds its application in the critique of justice as but one model for moral and political theory. Those who defend an ethic of care argue that the justice approach with its focus on same or different treatment displays a limited understanding of human relationships and of the interdependency of human agents. In the remainder of this paper, I shall use relational insights gleaned from the examination of the language of equality as a way of bridging the gap between liberal conceptions of equality, generally viewed as relevant to the realm of the political, and the care perspective, generally viewed as relevant to the realm of the personal and moral. Relational insights can be fruitfully employed to undermine the tendency to think of care ethics as in tension with and a rejection of equality analysis, to examine the intersections between care and justice, and to explore the ways in which each approach can be seen as informing the other and transforming the whole in a way that resolves or perhaps dissolves the dilemma of difference.

Intertwining Justice and Care

There are a number of feminists who respond to the pitfalls of the dilemma of difference by rejecting the concept of equality in favour of categories of analysis such as domination, autonomy and empowerment. I am not prepared to jettison the language of equality. Even these concepts, which are taken to be rejections of equality analysis, rely on the logic of equality discourse. The analyses rest on judgments of the different and unequal life prospects, amounts of power, and opportunities of women as compared to men. Appeals to the injustices of the various aspects of women's oppression, for example, assume agreements that women's inequalities in power, in autonomy, in opportunities, etc. are unjust. Moreover, for the purely strategic reason that working within the accepted discourse and structures to effect change is effective, the language of and arguments for equality and equal treatment should not be abandoned. A basic relational insight is that judgments of equality and inequality are fundamental aspects of social relations. They are embedded in social practices and cannot be avoided.

Perhaps most fundamentally, I am not convinced that these feminists are rejecting equality in favour of something else, autonomy, say, or liberation. Rather, the dissatisfaction with equality theory has its source in a misrepresentation of all liberal theorists as supporting a purely formal conception of equality, a misrepresentation evident in Gilligan's understanding of justice. Gilligan writes: "an ethic of justice proceeds from the premise of equality--that everyone should be treated the same" (Gilligan 1982, 174). One respondent, whom Gilligan takes to exemplify justice reasoning, answers the question about what morality is by saying: "I think it is recognizing the right of the individual, the rights of other individuals, not interfering with those rights" (Gilligan 1982, 19). For the formal equality theorist, respect for individual freedom requires negative rights of non-interference and equality is satisfied when individuals have equal liberty rights. But justice can be dissociated from this libertarian interpretation of equality as the purely formal right to equal treatment.

Once it becomes clear that the justice approach is supportive of, or at least, not necessarily hostile to, an account of positive rights, the contrast between care as a responsibilities approach and justice as a purely individual rights approach is no longer tenable. Gilligan distinguishes the care and justice perspectives in the concerns expressed by one woman she interprets as exemplifying the care perspective: "[t]hus while Kohlberg's subject worries about people interfering with each other's rights, this woman worries about `the possibility of omission, of your not helping others when you could help them'" (Gilligan 1982, 21). At least on the surface, depicting care in terms of a responsibility to help others is not so obviously different from liberal substantive theory's support for positive measures as the recognition of different people's needs for different treatment in order to achieve equality. Moreover, construing responsibilities in the care approach as responsibilities to avoid harm and to respect others as moral equals makes it evident that the care Gilligan describes assumes two of the foundational principles of classical liberal theory. To depict care as a moral injunction to refrain from hurting others and to advocate a responsibility to "look out for each other" assumes the moral principle that each person deserves equal concern and respect. To adopt a stance of care is to be committed to treating people with equal concern and respect.

Gilligan and liberal substantive theorists agree that the purely formal right to equal treatment is not sufficient to meet the demands for equal concern and respect for others. So far, we have what might be described as a "caring justice". But will a substantive interpretation of equality and justice address all of the concerns raised by a care perspective? To answer this question, we need to provide a critical analysis of care because care, as Gilligan depicts it, does not live up to its full political potential. What is distinctive and positive about the care perspective becomes apparent when we make relationships rather than care the focal point for theorizing about equality. We begin by moving away from thinking of care as an uncritical response to helping or taking care of others in personal relationships. We then determine what concern for others requires by examining the relationships members of oppressed groups are in and the perspectives they develop on the structures. What we need, in other words, is a "just caring".

Beginning with the fundamental fact that at points throughout our lives we all require care, whether in the form of parental care, health care, educational care, or care in old age, allows us to acknowledge that people are neither totally dependent nor independent, but are more accurately described as interdependent. In contrast to the liberal tendency to focus on what individuals need to be independent autonomous beings, a focus on our interdependence in relationships of all kinds shows how precarious our independence from others is and how inevitably intertwined the notions of autonomy and responsibility for others are. The notion of interdependence puts relationships in the foreground and begins to show how the focus and thrust of both justice and care theory changes when relationships of all sorts are the central concern. Focussing on relationships and the impact of them on people's lives rather than on the activities of caring for others opens the way to providing a more adequate account of the complex construction of difference than Gilligan recognizes.

Gilligan falls into generalizing about experiences shared by all women and fails to grasp the complexity of the interlocking factors of oppression and its multiple effects on self-concepts and identity. Difference is constructed as inequality and inferiority in various ways, has multi-layered impacts on self-concepts and identity, and affects life plans and opportunities in diverse ways. Expanding the network of relationships within which care exists beyond the personal and dyadic ones on which Gilligan and care ethicists tend to focus calls for a reevaluation of care as an orientation uniquely associated with women or relevant only in personal relationships or captured merely as a moral stance of concern for others. Once we acknowledge the significance of all sorts of relationships to identity and self-concepts and to people's levels of freedom for satisfying interests and needs and for developing various capabilities, the resulting account of care provides a new perspective on justice and on what is needed to treat people with equal concern and respect.

The idea of the fundamental significance of human interdependence emphasizes the ontological significance of all kinds of relationship to self-concepts and identity and the moral and political significance of being in a network of complex and ever-changing relationships. Relational theory expands care from women's activities in interpersonal settings to an orientation more properly linked to members of oppressed groups in general. It explains that those who are oppressed and excluded from spheres of power and influence need to adopt stances and strategies in relation to those in power that are sensitive to the effects and implications of their relationships to the powerful. They need to know about the laws and decisions made in the public sphere because they are affected by them. Relationships with the law and with public officials affect the relationships people have elsewhere and even their ability to create, sustain, or end relationships. Members of oppressed groups have valuable insights into what caring for and being concerned about others requires because they have had to be aware of how the actions of the powerful prohibit or diminish the provision of care for them and those they care for and about. These relational insights call for attending to the perspectives of people in all sorts of relationships as a way of understanding what is needed for equality. Perspectives can reveal what is required for "just caring".

I will end by applying some of these insights in a brief discussion of a policy issue. Critics of Gilligan have used examples of sexual harassment and sexual assault to defend justice as prior to or more important than care and to separate out contexts where care is appropriate from ones where justice is appropriate. I want to argue that a more adequate response to these sorts of examples is to construct a notion of "just caring" that moves away from exclusive attention to care as concern for others in interpersonal relationships. We need to examine the social practices of a society that define these actions in ways that circumscribe oppressive relationships and perpetuate inequalities. Not only do we realize why care as "concern for others" is not sufficient for addressing injustices at the level of political and public relationships, but we also learn that women's perspectives on sexual harassment and sexual assault need to form the base for understanding these inequalities and changing institutional structures. These perspectives generate an account of our responsibilities to others that has not been evident in justice theory so far, an account that needs to be sensitive to differences with respect to people, positions, social practices, and political contexts.

On the one hand, a critical perspective on care is needed to know what justice requires because it is needed to know what treating people in all kinds of relationships with equal concern and respect requires. On the other hand, justice cannot be assessed without a focus on relationships and a capacity to take a variety of perspectives into account. We need to be more attentive to different people's perspectives on the structures of power, in particular of those people who continue to be on the margins or outside those structures. Justice theory needs to take account of the diverse needs of different others, how they perceive their needs and how all this affects what is required to treat them with genuine concern and respect.

In the process of realizing that genuine respect for the perspectives of all those who are oppressed results in challenges to the norms assumed by liberal structures, we find a way of escaping the dilemma of difference and thereby strengthen the case for inclusion, not assimilation. But the possibility for enabling and enacting change rests on permitting genuine interactions, ones in which the dominant and powerful recognize the validity and value of different perspectives. These interactions are places where complex intertwinings between the different approaches to morality can and do take place. The relationship between care and justice, then, does not have to be in terms of the assimilation of one perspective into the other, but can be in terms of each perspective informing the other and transforming the whole.

Notes

(1) These fears were realized in practice in EEOC v. Sears, Roebuck, & Co. The Equal Employment Opportunity Commission charged that Sears was guilty of discriminating against women because women were underrepresented in higher-status and higher-paying jobs at Sears. The lawyers for Sears argued that the statistics of underrepresentation did not reflect discriminatory hiring policies, but instead reflected women's free choices to make family and children their priority. Lawyers for Sears cited Gilligan's research in support of their argument that women just have different interests, projects, and goals and that these differences explained their underrepresentation in jobs that required more time and travel. In other words, by using a libertarian-type defence of the right to choose without interference, Sears argued that female employees, who were merely choosing to avoid jobs that took them away from their families, ought to have their free choices respected. Women at Sears were being treated equally with men because they had the same right to compete for better jobs and to choose not to do so too. The case exemplifies the complexity of the arguments and the many dimensions that make difference a dilemma in a liberal framework. The Sears case has been discussed extensively in the feminist literature. See Williams (1989); Minow (1987; 1990b); and Scott (1990).

(2) Merle Thornton argues that as a goal for feminism, equality is "stretched beyond its usefulness" (Thornton 1986, 96) and supports instead a feminist analysis of liberation. Elizabeth Gross argues that feminist theory has shifted from "a politics of equality to a politics of autonomy" (Gross 1986, 193). Although she acknowledges that "the aspiration towards an equality between men and women was nevertheless politically and historically necessary", she takes the goal of equality as merely a "prerequisite to the more far-reaching struggles directed towards female autonomy--that is, to women's right to political, social, economic and intellectual self-determination" (Gross 1986, 192-193, her emphasis).

(3) "Just Caring" is a phrase also used by Rita Manning as the title of Chapter 4 of her book, Speaking from the Heart, (Manning 1992) and of an article in Hypatia. Manning argues for a greater role for the ethic of care by demonstrating that while principle-based ethics give us minimum standards for moral behaviour, care goes beyond this in giving us rules for positive moral responses to others.

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