Political Practices of Care. Joan Tronto

Ratio Juris. Vol. 17 No.
4 December 2004 (425–53)
Political Practices of Care:

Needs and Rights*
JULIE A. WHITE AND JOAN C. TRONTO
Abstract. In this paper the authors argue that the exploration of the nature of needs
and rights should begin with the actually existing organization of care and of justice
in society. The authors raise two key concerns with this organization: 1) the invisi-
bility of care to some, and 2) the inaccessibility of rights to others. Recent work by
care scholars has called attention to the ways the current organization of care work
perpetuates the myth of self-sufficiency for some, while reducing others to mere
dependents. Law and Society scholars have demonstrated the problems of uneven
access to legal remedies within the current organization of the legal system. Address-
ing these concerns simultaneously reveals both the problems of the current organi-
zation of needs and rights as well as illuminating alternative possibilities. The
authors argue, first, that a justice perspective, based on rights is inadequate because
its presumed universality is belied by the reality of the inaccessibility of rights to
many. Second, the authors argue that a care perspective, currently formulated upon
the assumption that only some people have needs, is also flawed because its pre-
sumed particularity distorts the human experience and subsequent policies. Instead,
the authors need to conceive of care in a public way that permits both rights and
needs to be understood as applicable to all. The authors propose some initial
thoughts about how to create such a public concept of care.
1. Introduction
Stone (2000) makes a compelling case that as a society we are confronting a
“care crisis.” In calling for a care movement to address this crisis Stone
argues that justice for care-workers and family care providers is a necessary,
perhaps even sufficient condition for more adequate care provision. Better
day care, for example, is more likely to be provided by experienced care
workers with stable relationships to those for whom they care. A stable
* This paper was prepared for presentation at the Annual Meeting of the American Political
Science Association, Boston, Massachusetts, August 29–September 1, 2002.
© Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.
426 Julie A. White and Joan C. Tronto
workforce is therefore necessary to adequate care provision. Justice for

workers is in turn necessary for a stable workforce. Thus, despite much con-
ceptual work emphasizing care and justice as alternatives to one another, in
actual practice, Stone sees them as mutually reinforcing.
Stone’s work heeds a call heard in some of the more recent literature on
care, that while feminists must clearly articulate the limitations of the justice
tradition, we must also recognize its contributions. Liberal models of justice
may be inadequate to dealing with neglect, the argument goes, but they have
been historically important to identifying and often remedying some forms
of domination, particularly those associated with public life. If we are con-
cerned to develop care as a public value, we must explore both conceptu-
ally and politically the relationships between care and justice, between needs
and rights.
In this paper we argue that this exploration should begin with the actu-
ally existing organization of care and of justice. We raise two key concerns
with this organization: 1) the invisibility of care to some; and 2) the inac-
cessibility of rights to others.
Recent work by care scholars has called attention to the ways the current
organization of care work perpetuates the myth of self-sufficiency for some,
while reducing others to mere “dependents” (Tronto 1993; Fraser and
Gordon 1996; Kittay 1999). Law and Society scholars have demonstrated the
problems of uneven access to legal remedies within the current organization
of the legal system. Addressing these concerns simultaneously reveals both
the problems of the current organization of needs and rights as well as illu-
minating alternative possibilities.
The outline of the argument is as follows. We begin by reviewing some
philosophical attempts to bring justice and care together. While this work is
often motivated by conceptual concerns about the potential parochialism of
care, we find the turn to justice in order to remedy these concerns is only
partially attentive to the politics of rights. Similarly, within critical legal
scholarship, the debate about the potential of rights and their relationship
to needs is only partially attentive to the politics of needs. Both these debates
are limited by their formalistic approach to the relationship between care
and justice, needs and rights. In response to these limitations, we propose
grounding the critique and reconstruction of care in an analysis of the
current organization of rights and needs and the political discourses sur-
rounding them. In this vein, we make two kinds of arguments. We argue,
first, that a justice perspective, based on rights is inadequate because its pre-
sumed universality is belied by the reality of the inaccessibility of rights to
many. Second, we argue that a care perspective, currently formulated upon
the assumption that only some people have needs, is also flawed because
its presumed particularity also distorts the human experience and subse-
quent policies. Instead, we need to conceive of care in a public way that
permits both rights and needs to be understood as applicable to all.
© Blackwell Publishing Ltd 2004.
Political Practices of Care 427
2. Care and Justice: The Limitations of a Philosophical Approach

“Can an ethic of care without justice adequately resist evil?” (Card 1990).
Can the practice of care without justice adequately resist paternalism and
parochialism? (Tronto 1993). Care theorists have responded to these ques-
tions in a variety of ways. Nel Noddings has argued that indeed care can
stand alone as a guiding ethic. But the vast majority of work on care argues
for the necessity of justice to both the ethic and practice of care. Some
common claims include: 1) while care may make a strong governing prin-
ciple for personal relations, we need justice to ensure right treatment of the
stranger (Card 1990); 2) (a variation on 1) a care orientation may govern our
personal interactions, but our public interactions require a justice orienta-
tion; 3) we need justice to guide our allocation of care (Tronto 1993; Bubeck
1995); 4) care should define our relationship to others, but “rights” create
the space for the inclusion of the “self” in the network of care; 5) we need
justice in order to move beyond the particularity of care; 6) we need justice
to protect care workers from exploitation (Kittay 1999); and 7) a reversal,
justice needs care because justice requires the empathy of care in order to
generate its principles (Okin 1990).1 We will not review here the full range
of responses to the “care, with or without care justice” question. But a brief
overview of Noddings (1984), Kittay (1999), Okin (1990), Gilligan (1993) and
Bubeck (1995), on this question lays the groundwork for understanding the
political motivation for the turn to justice in the context of care.
To start with, we might ask how different is the different voice Carol
Gilligan describes? Gilligan (1993) contrasts care and justice orientations,
yet she frequently depicts them both as simultaneously oppositional and
as compatible, even mutually necessary to one another.
In this conception, the moral problem arises from conflicting responsibilities rather
than from competing rights and requires for its resolution a mode of thinking that
is contextual and narrative rather than formal and abstract. This conception of moral-
ity as concerned with the activity of care centers moral development around the
understanding of responsibility and relationships, just as the conception of morality
as fairness ties moral development to understanding right and rules. (Gilligan 1993,
19)
At least initially for Gilligan, “care is about responsibilities rather than

rights, engagement rather than abstraction, connection rather than separa-
tion; it presumes the centrality of relationship rather than individualism”
(White 2000, 77). But Gilligan also suggests the complementarity of justice
and care noting:
At the same time, however, these languages (care and justice) articulate with one
another in critical ways. Just as the language of responsibilities provides a web-like
1
For an extended discussion see White 2000, especially chaps. 4 and 5.

imagery of relationships to replace a hierarchical ordering that dissolves with the

coming of equality, the language of rights underlines the importance of including in
the network of care not only the other but also the self. (Gilligan 1993, 173)
It is not clear from Gilligan’s account of justice and care whether we must
choose one language or the other or whether there is a necessary comple-
mentarity between the two. This ambiguity created the space for a variety
of responses.
Nel Noddings offers what is perhaps the strongest defense of care as an
ethic that can stand alone: “I shall reject ethics of principle as ambiguous
and unstable. Wherever there is a principle, there is implied its exception
and too often principles function to separate us from each other. We may
become dangerously self-righteous when we perceive ourselves as holding
a precious principle not held by the other. The other may be devalued and
treated “differently” (Noddings 1984, 5). A review of her work suggests why
many responded to Noddings by arguing against the abandonment of
justice. An ethic of care for Noddings governs our relationships with an
“inner-circle” and this ethic arises out of feelings, as opposed to principled
reasons. There are those we prefer to care for, and we must prefer to care
for them because of some natural affective tie.2 Noddings’ commitment to
the exclusivity of care as a guide to practices seems to leave few conceptual
resources for challenging these ties as the basis for the distribution of care.
Hence her controversial conclusion about our moral obligations to distant
strangers:
Our obligation is limited and delimited by relation. We are never free, in the human
domain, to abandon our preparedness to care; but, practically, if we are meeting those
in our inner circles adequately as ones caring and receiving those linked to our inner
circles by formal chains of relation, we shall limit the calls upon our obligation quite
naturally. We are not obliged to summon the “I must” if there is not possibility of
completion in the other. I am not obliged to care for starving children in Africa,
because there is no way for this caring to be completed in the other unless I abandon
the caring to which I am obligated. I may still choose to do something in the direc-
tion of caring, but I am not obliged to do so. (Noddings 1984, 86)
For Noddings, moral obligations are circumscribed by an inner-circle, the

boundaries of which are largely understood as established by natural affec-
tive ties. In suggesting that we are not obligated to care for the starving in
Africa because it would force us to abandon the “caring” to which we are
obligated, Noddings raises the important practical issue of scarcity, but
naturalizes a parochialism. The boundaries of the inner-circle she describes,
who is included and who is excluded from the sphere of obligation, is not
taken to be a political question.
2
Noddings distinguishes between what she calls natural caring and ethical caring. Natural
caring is exemplified by the mother-child relationship: Noddings 1984, 79.

Diemut Bubeck raises her challenge to Noddings on exactly this point:
It may be the case that carers need to draw boundaries if they are to prevent their
caring disposition from being exploited but there is a further question as to which
boundaries are justified. Prejudice and parochialism certainly do not provide justifi-
able boundaries, nor does their existence prove that the disposition to care itself has
boundaries. (Bubeck 1995, 224)
Bubeck starts with the scarcity problem which she frames with the question,
“when the needs of two people are mutually exclusive, how do we resolve
this as carers?” To address this dilemma, the distribution of care in the public
sphere should follow two principles: the harm minimization principle—
each person’s need is to count for one and nobody’s need for more than
one—and the principle of equality—everybody’s needs receive equal con-
sideration. This she notes involves a kind of calculus that Noddings denies
carers engage. But the conflicting demands for care require such principles
of justice to resolve them. In this sense she sees principles of justice forming
an organic part of the practice of care.
Bubeck has difficulty, however, bringing together her defense of the
importance of “relatedness” with this turn to justice. “Relatedness” is the
key difference between care in the public sphere and care in the private
sphere. “Relatedness” may justifiably influence the amount and type of care
given, it does not, she argues, make a difference to the ultimate quality of
care. These are difficult claims to reconcile but they are motivated by a
concern to avoid Noddings’ parochialism and to ensure that, “the absence
of relatedness [ . . . ] does not necessarily imply the absence of any impulse
to act on behalf of others who are more or less unknown strangers” (Bubeck
1995, 223). The turn to fairness as a way to protect strangers from neglect
requires the commodification of needs and of care in a way that allows us
to talk about fair exchange. But if things like relatedness are relevant to care
as a process, such a distributive model will often fail to match needs with
appropriate care.
“Relatedness” is a concern for those worried about the quality of care as
it is experienced by those in need, but it is also a concern for those worried
about the quality of life and work for careworkers. Day care providers,
school teachers, and nurses, for example, are often expected to put up with
work conditions that would be unacceptable to those employed in other
sectors because they are supposed to be motivated by forces different from
auto-workers. They do their jobs because they care about the kids, or they
care about patients. In labour disputes, management in these sectors is rarely
above using this care argument to ward off a strike or to convince workers
that just getting to care is itself an important form of compensation for their
work. Eva Kittay has explicitly taken up the question of “dependency
work,” arguing that the turn to justice is required to ensure care of the care-
taker. After noting that the Rawlsian model (Rawls 1971) inadequately
accounts for the situation and circumstances surrounding dependency, she

proposes a third principle of justice based on the model of the doulia. Attend-
ing to dependency and dependency work requires this amendment to the
principles of justice. Yet, as she herself acknowledges, Rawlsians might well
resist amending the principles of justice in this way, arguing that the concern
for dependency runs counter to the assumption of moral autonomy and
impartiality embedded in the justice tradition.
Finally, Susan Okin has argued that in fact the care tradition is already
embedded in the justice tradition. “Some recent distinctions that have been
made between an ethic of justice and an ethic of care, may be at least over-
drawn, if not false” (Okin 1990, 15). Okin argues that the voice of responsi-
bility, care, and concern for others is central to Rawls’ account of justice.
Specifically, on her reading, Rawls’ theory requires both empathy and
impartiality. “If we, who do know who we are, are to think as if we were in
the original position, we must develop considerable capacities for empathy
and powers of communication with others about what different human lives
are like” (Okin 1990, 32). Impartiality is a requirement but this is not incom-
patible with the requirement that coherent thinking about justice happens
through empathy with persons. “To think as a person in the original posi-
tion is not to be a disembodied nobody [ . . . ] Rather it is to think from the
perspective of everybody, of every ‘concrete other’ whom one might turn
out to be” (Okin 1990, 34).
It is not clear, however, that such a thinking project can be undertaken in
a manner compatible with impartiality and this is both unclear in Rawls and
unclear in Okin. For Okin to claim that benevolence or empathy plays a role
in deriving the principles of justice, she seems to need certain particulari-
ties—one’s relative position of privilege, for example—to be available to
those behind the veil. After all, the difference principle can be said to be
motivated by benevolence, rather than the rationally calculated self-interest
of non-risk-takers only if its proponent is privileged, knows this, and so
would be giving rather than getting according to this principle (White 2000,
104–9). Empathy as it is understood within the care literature is a relation-
ship between two actual agents with distinct self-histories who manifest
emotional understanding across their distinctness. The condition of impar-
tiality behind the veil of ignorance, even if it is understood as requiring
thinking from the position of everybody rather than a disembodied nobody,
accomplishes understanding through the substitution of one self for another,
not through relational interaction.
More important for our purposes than the epistemological dilemma pre-
sented by the Rawlsian veil of ignorance is the question of what motivates
Okin to argue that concerns for care are accommodated within the justice
framework. Okin’s attempt to wed empathy to impartiality is telling for it
is ultimately the partialist impulse of care, the fear that care is too readily
compatible with parochialism, that again motivates the concern to argue the
two are mutually necessary to one another. Particularly for those concerned
to develop care as a public practice, parochial care and paternalistic care are
problematic. They are inconsistent with other public values to which care
theorists may be strongly committed. But as the attempts we have outlined
here suggest, justice in its current form, wed to care as it is often understood,
can produce conceptually incoherent alternatives.
3. Rights and Needs: The Limitations of the Critical Legal Approach

Just as with much of the literature on justice and care, much of the public
law literature assumes there are important differences between the language
of rights and the language of needs.3 Faced with this “disjuncture,” some
have argued that the struggle should be to “Europeanize” American rights,
to create a society that recognizes and guarantees “positive” as well as
“negative” rights. Others have argued that there are “substantial pragmatic
reasons to think that abandoning the rhetoric of rights would be the better
course to pursue for now” (Tushnet 1984, 1394).
Mark Tushnet outlines a critique of rights that he understands as a “cre-
ative destruction that may help us build societies that transcend the failures
of capitalism” (Tushnet 1984, 1363). Tushnet presents four related critiques
of rights that characterize American legal debate: 1) rights are unstable—
significant but relatively small changes in the social setting can make it dif-
ficult to sustain the claim that a right remains implicated; 2) rights are
indeterminate—the claim that a right is implicated in some settings pro-
duces no assured consequences; 3) rights talk converts real experiences that
we ought to value for their own sake into empty abstractions; 4) the use
of rights in contemporary discourse impedes advances by progressive
social forces (Tushnet 1984, 1363–4). Tushnet acknowledges that one strat-
egy in response to these critiques would be to struggle to develop a more
complete set of “positive rights.” But he resists this strategy on pragmatic
grounds:
I cannot pretend to have an argument against that course and would not want to
weaken my comrades’ efforts to build a society that guarantees positive as well as
negative rights. But there do seem to be substantial pragmatic reasons to think that
abandoning the rhetoric of rights would be the better course to pursue for now.
People need food and shelter right now, and demanding that those needs be satis-
fied—whether or not satisfying them can today persuasively be characterized as
enforcing a right—strikes me as more likely to succeed than claiming that existing
rights to food and shelter must be enforced. (Tushnet 1984, 1394)
Jeremy Waldron has responded to Tushnet on this score, rejecting Tushnet’s

strategic claims and arguing that needs talk must be reformulated or
3
This section’s discussion of Tushnet and Waldron draws from Gilliom and White 2001.

translated into the language of rights if it is to serve in the struggle for

empowerment.
Waldron works through each of Tushnet’s four concerns. Waldron con-
cedes that rights claims are often indeterminate, but so, he argues, are needs
claims. Even with something as seemingly straightforward as “P must have
X in order to survive, be healthy and function properly,” Waldron argues,
“the concept is evidently a contestable one; and contestable not just between
these different analyses, but also in our understanding of the abstract terms
in which each is couched [ . . . ] ‘healthy,’ ‘function properly,’ and so on”
(Waldron 1996, 93). Needs are not essential or uncontested; they are as open
to contestation as are rights claims. And they do not produce determinate
consequences; we cannot advocate needs claims as a guarantee that
resources will be provided. Rights may not be political trumps but neither,
it would appear, are needs.
Nor, Waldron suggests, is needs talk advantageous from a moral per-
spective: “Talk of needs sounds somehow more compassionate, more open,
more responsive, less aggressively individualistic, less male, than the table-
thumping adversarial rhetoric of rights” (Waldron 1996, 95). But this is
merely the way needs talk presents itself initially—“it doesn’t take long
before that attribute too is being exploited by its users for the intensification
of their demands” (Waldron 1996, 96). Needs talk too can be instrumental
and self-serving. Similarly, perhaps one of the most common criticisms of
rights talk is that it is non-relational and as such is deficient in its approach
to questions of responsibility. Rights talk would seem to be about an obli-
gation only to non-interference, while needs talk by contrast, would appear
to imply a positive duty of assistance. But the distinction between an
obligation to non-interference and a duty to positive assistance does not
actually hold up. Waldron argues that the rights tradition from its very
beginnings has always implied corresponding duties and some of these
have been positive and substantive responsibilities: “Rights can be used to
express demands for assistance and positive action. It is true, however, that
they do so in a certain style or spirit, which needs talk cannot capture. We
should consider whether that spirit is really something we want to abandon”
(Waldron 1996, 102).
He argues it is not. Here Waldron draws on the work of Patricia Williams,
specifically her defense of rights talk as critical to advancing the position of
African-Americans. But Waldron sees the limitations of both Tushnet’s call
for needs talk and Williams’ defense of rights talk. Both fall prey to what he
calls “the myth of disjunction.” Waldron wants to move beyond an either/or
framework—a framework within which we must choose either rights talk
or needs talk. “Rights talk” he says, “provides an indispensable framework
in which talk of needs can be related to ideas about personhood, self-
assertion, and dignity” (Waldron 1996, 105). On this account, needs talk does
not disappear; rather it is appropriately subsumed within a rights frame-
work: “By taking needs, in other words, as a basis for rights, rather than an
alternative to rights we can give them a certain integrity and dignity that
claims of need do not always have on their own” (Waldron 1996, 105). By
grafting the language of needs onto the larger and more established lan-
guage of rights, Waldron attempts to overcome the “myth” of disjuncture
and point toward a practicable solution to the challenges in this area.
But why, we might ask, do the languages of need and care lack that
“certain integrity and dignity” that Waldron sees in the language of rights?
Waldron worries that while needs themselves are indeterminate, “the lan-
guage of needs is an objective language” (Waldron 1996, 102). As a conse-
quence needs do not have to be articulated by the subjects of needs claims
themselves. Their objectivity means needs can be diagnosed or assessed by
others. “Talk of the rights of an oppressed people comes most naturally from
their own lips, and it will sound disconcerting to those who think it wiser
or more politic for the oppressed to keep quiet. Talk of needs has no such
connotation: it sounds as natural in the mouth of a detached observer as in
that of the needy person” (Waldron 1996, 102). Waldron fears that the lan-
guage of need and the needy subject it implies tends to lead to a situation
in which experts speak for others rather than subjects in need speaking for
themselves: “needs can be represented as a matter of calm, technocratic
authority” (Waldron 1996, 102). Waldron concludes:
Thus rights talk and needs talk may both embody a form of respect; but only the
language of rights conjoins in its very structure the idea of respect for persons and
self-respect. Both rights and needs amount to a demand that certain interests be
attended to; but only rights talk presents those interests in the voice of one who
would be a full-fledged member of society, who is not going to go away and who
expects to be taken seriously as an enduring source of continuing demands. (Waldron
1996, 104)
We would argue that Waldron’s critique may less suggest a problem with
needs talk than a problem with the way we understand, “full fledged mem-
bership in society” or citizenship.
Needs talk is at odds with “self-respect” only if we cannot conceive of
needy selves as citizens. Recent feminist scholarship has challenged both
the concept of autonomy and its common equation with economic self-
sufficiency, and the connections between autonomy and liberal citizenship.
Ultimately all selves are needy. But because the liberal conception of citi-
zenship is tightly linked to a conception of independence and autonomy,
this fact is often obscured:
On the most general level, to require care is to have a need; when we conceive of
ourselves as autonomous, independent adults, it is very difficult to recognize that
we are also needy. Part of the reason that we prefer to ignore routine forms of care
as care is to preserve the image of ourselves as not-needy. Because neediness is con-
ceived as a threat to autonomy, those who have more needs than us appear to be less
autonomous, and hence less powerful and less capable. (Tronto 1993, 120)

While Waldron begins by acknowledging the determining role of politics in

meaning making, he concludes by suggesting that needs talk and self-
respect are essentially at odds with one another. The tension between needs
talk and self-respect is, as Tronto points out, generated by a particular con-
ception of the self which is neither essential nor apolitical. It is not merely
that needs are indeterminate. So are the meanings of self and citizen. And
it is only when we have constructed citizen-selves as autonomous, self-
sufficient, and “not-needy,” that needs talk is at odds with respect. It is this
conception of the citizen-self that legitimates paternalism toward those
who admit needs.
Waldron’s suspicions about needs talk are not unfounded. But they do not
identify a problem with needs talk itself but a problem with the political
context in which talk about needs unfolds. Needs themselves may be con-
tested and indeterminate; who actively participates in the contestation is
often over-determined by relationships of gender, class and racial privilege
that masquerade as the authority of an expert, a detached observer. The
cloaking of political interests in claims of objectivity is a strategy that effec-
tively maintains the status quo.
4. Starting with the Actual: The Inaccessibility of Rights,

the Invisibility of Care
Care theorists often argue that the turn to justice is necessary to “avoid the
problem of evil.” But in this section we will argue that these accounts
suggest a confidence in the politics of rights that, in light of an analysis of
actual practices of rights mobilization, may not be warranted. Similarly,
Waldron’s account is attentive to these politics but his analysis leaves
unquestioned the assumption that the language of needs and the language
of citizenship are at odds. In so doing it is inadequately attentive to the
politics of needs. In this section we argue that a more adequate approach
begins with an analysis of actual legal practices and the existing organiza-
tion of care work.
Law and Society scholars have paid significant attention in recent years
to the way individual rights claims work (or do not) in actual practice
(Scheingold 1974; McCann 1994; Silverstein 1996; Epp 1998; Gilliom 2001).4
And much of the work in the tradition of the ethic of care, in particular
Gilligan’s own initial study, focuses on the way needs claims are negotiated
in the context of real life moral dilemmas. In both the Law and Society
literature and much of the work on care a reliance on purely formalistic
or hypothetical approaches to understanding “rights” or “needs” is rejected.
4
While some Critical Legal Studies scholarship takes up similar questions, an ideal-typical dis-
tinction between CLS and Law and Society scholars would emphasize the more formalistic
approach taken by CLS scholars and a more empirical emphasis on the actual workings of rights
claims among Law and Society scholars. This will be taken up in greater detail shortly.

Yet, despite what would appear to be a natural affinity, there has been little
cross-over scholarship.5 We suggest that bringing these literatures together
can be both methodologically and theoretically productive.
Gilligan’s argument in response to the earlier work of Lawrence Kohlberg
is both a methodological and a substantive one: She examines the process
of moral problem-solving in the context of real-life moral dilemmas, dilem-
mas requiring for their resolution, “a mode of thinking that is contextual
and narrative rather than formal and abstract” (Gilligan 1993, 19). And sub-
stantively she argues that a focus on particular needs rather than universal
rights should not be understood as deficient moral reasoning but rather as
an alternative and equally legitimate approach to moral dilemmas. The lan-
guage of moral orientation, of moral dilemmas is a language common
throughout much of the care literature. This almost certainly stems from the
fact that much of the contemporary work takes Gilligan as its starting point.
Her work reflects a response to a research tradition in moral psychology
which takes for granted the centrality of the individual as the unit of
analysis. Gilligan also sought to draw out the connections between moral
dilemmas as individuals experienced them in actual practice and broader
processes of socialization. But Gilligan’s analysis focuses chiefly, almost
exclusively, on the processes of socialization to gender roles within the
family. The connection between other, broader societal structures and these
“dilemmas” is critical to understanding care as both an orientation and a
practice. Seeing these connections requires a method that is both empirically
oriented and conceptually critical.
A methodological approach which begins with an individual—with a
study of the way individuals confront real life moral dilemmas as they nego-
tiate needs and respect rights—becomes politically useful only as the con-
nections between the individual’s experiences and the larger organizational
and institutional structures that shape those experiences are explored and
articulated. Daniel Chambliss’ study of the practices of nursing care within
a hospital context attempts to make just such connections. He suggests that
even the language of “dilemmas” works to obscure the fact of these con-
nections. And yet drawing these connections has real organizational, real
political consequences:
The language of dilemmas individualizes ethics, making morality a personal issue.

The individual is advised to get more education, to change her thinking, to clarify
her principles. “Dilemma” refers to an ethical difficulty as something to be solved
in the mind of the professional person, an internal balance of positions. The troubled
person is said to “be conflicted,” as if in a fight with herself. This neatly avoids the
possibility that she has a conflict with someone else. Talk of “ethical dilemmas”
diverts attention from the structural conditions that have produced the problem in
the first place. This is naturally in the interest of the status quo and is relatively
unthreatening to powerful interests within the hospital. This is why so many
5
Gilliom 2001 is an important exception which we will discuss in some detail shortly.

hospitals can readily accept an “ethics committee” and its debates about ethical
issues. Initially, some powerful hospital staff may feel threatened but the threat is
contained by framing issues as “difficult dilemmas” rather than seeing them as
symptoms of the structural flaws of the health care system. At the beginning of my
research in one hospital, I was repeatedly told by friendly informants not to speak
publicly (in seminars, e.g.) about what they all agreed was the obvious key to
nursing’s ethical problems, namely, the organization of the hospital and the health
system. “Talk about psychology, not organization,” one said. They worried that if I
spoke of organizational problems, administrators would swiftly shut down my
project. (Chambliss 1996, 92–3)
Chambliss offers a sympathetic account of nursing. Nurses are in a difficult

position as front-line care providers in the context of institutions that often
have internally contradictory missions—delivering care and making a profit,
for example. Yet Chambliss (1996, 92–3) resists understanding these dilem-
mas as dilemmas of conscience arguing instead that these are “practical
problems dumped on nurses from other units, other institutions and from
the society at large.” Though they are almost certainly both dilemmas of con-
science and practical problems, understanding the connection between the
ethics and the politics of care requires attention to both.
It also requires an engaged method of study. To understand the politics
of care, Chambliss completes 110 interviews and on-site observation in hos-
pitals over a three year period. Similarly, Law and Society scholars often see
their work as a response to limitations within the more formalistic and
abstract approaches taken within Critical Legal Studies (CLS) and reflected
in Tushnet’s work. Both approaches position themselves as politically pro-
gressive and share a concern with the limitations of the liberal paradigm.
Mark Kelman outlines attributes of CLS beginning with the three central
contradictions of liberalism, the first of which is, “the contradiction between
a commitment to mechanically applicable rules as the appropriate form for
resolving disputes (thought to be associated in complex ways with the
political tradition of self-reliance and individualism) and a commitment to
situation-sensitive, ad hoc standards (thought to correspond to a commit-
ment to sharing and altruism)” (Kelman 1987, 3). This is a familiar critique
to those who have worked within the care tradition. Care theorists have
frequently articulated a similar aversion to rules, or simple recourse to prin-
ciples, to resolve moral dilemmas.
But the CLS response to the inadequacy of liberalism has focused almost
exclusively on the law itself, on the conceptual inadequacy of the key tenets
of liberalism as they are embodied in American constitutionalism. Kelman
(1987, 20) remarks, “the CLS focus on case law and ideology is seen by many
traditional leftists as reflective of a distasteful desire among elite school law
professors to ‘stay clean’ in the libraries, to avoid either dirty academic work
(gathering data about how the law actually functions on the shop floor or
in the Legal Aid office) or the even dirtier organizing work with those who

are privileged in traditional Marxist thought as our political saviors, the

proletariat.” This dirty work has more often been done by those who would
identify themselves as Law and Society scholars.
Scheingold would be identified within this tradition. Scheingold (1974, 5)
argues that the myth of rights is premised on a direct linking of litigation,
rights, and remedies with social change. The connections are far from
straight-forward. Rights consciousness, access to the legal system, and legal
judgment itself are political processes. Scheingold argues that the myth of
rights “must be exchanged for a more complex framework, the politics of
rights, which takes into account the contingent character of rights in the
American system”:
To think about rights as officially articulated goals of public policy leads directly to
a more politically sensitive perspective. It is immediately clear that the courts are
only one of a number of authoritative agencies that articulate goals for the polity.
Formal recognition by the courts may therefore improve the bargaining position of
those upon whom the judge look with favor. Judicial acceptance does not, however,
mean that the goal will be embraced more generally nor that the social changes
implied will be effected. If there is opposition elsewhere in the system, the judicial
decision is more likely to engender than to resolve political conflict. In that conflict,
a right is best treated as a resource of uncertain worth, but essentially like other
political resources: money, numbers, status and so forth. The value of a right will
therefore depend in all likelihood on the circumstances and the manner in which it
is employed, and for the social scientist this boils down to a matter for careful empir-
ical analysis. (Scheingold 1974, 7)
Scheingold’s work is the foundation for several such empirical studies. In

the following section we turn to one such study, Gilliom (2001), which
explores the limits of privacy, and the virtual absence of privacy rights
among one welfare population.
4.1. The Inaccessibility of Rights

Unexamined language and actions can help us understand more profoundly than
legislative histories or administrative or judicial proceedings how we decide upon
status, rewards, and controls for the wealthy, the poor, women, conformists, and non-
conformists. (Edelman 1974, 296)
Gilliom (2001) offers an assessment of rights claims in practice that draws

from his experience working with interviews with 50 welfare recipients
throughout Appalachian Ohio. Over the course of these interviews recipi-
ents frequently voiced their frustration, sometimes their anger, with welfare
bureaucracy. Those interviewed often felt that case managers were “nosey,”
that they were “butting in,” and that much of the information that was being
collected was, “none of their business.” They frequently resented the fact
that welfare workers, “know everything except the last time you shit”

(Gilliom 2001, 75). Given their dependency on the system, the new and more
invasive forms of surveillance and record-keeping employed by this system,
this is hardly surprising. But what is, at least initially, surprising is the virtual
absence of rights claims as a way of framing their objections to the system.
This is surprising for at least two reasons. First, as Mary A. Glendon
among many others has argued, “rights talk” is supposed to be a pervasive
feature of American legal and social culture. Second, in the case of welfare
politics in particular, it wasn’t so long ago that welfare rights organizations
were having significant success (Glendon 1991). Yet after reviewing 50
transcripts Gilliom finds only four interviewees using the language of
rights.
For these women, I will argue, the interplay of law, everyday life, and individual
experience do not make for a mix in which rights talk is a central theme as they strug-
gle with welfare surveillance. For them, there is no doubting the fact that “the law
is all over” (Sarat, 1990). The law surrounds them as rules, as threats, and as com-
mands; it is there as police officers, caseworkers lawyers, and fraud control investi-
gators; it is there in constructing their status as dependents of the state. The law is
all over, but, to put it bluntly, rights are not all over. These emancipatory, empow-
ering, entitling elements of our legal system evade the women studied here and
rarely emerge in their ways of speaking or acting about their problems. To them, I
think, most of what they associate with “the law” is exclusive, threatening, and
mean-spirited. (Gilliom 2001, 11)
Where does this leave us with respect to the question of rights and needs?
If rights talk is indeed inaccessible to these women in the way Gilliom’s
analysis suggests, what is to be done? Gilliom’s story is not an unfamiliar
one. Scheingold, writing in the early 1970’s, notes: “Welfare agencies fail to
provide the full range of benefits to which the poor are entitled according
to the law. The poor are ordinarily not aware of all of their entitlements, they
are generally not very aggressive in making claims, and they are easily
intimidated by agencies upon which they are heavily dependent. In short,
the poor lack legal competence” (Scheingold 1974, 140). Yet as he goes on to
note citing the work of Piven and Cloward, in the 1960’s this discrepancy
between provision and legal entitlement provided the space for political
organization. Then legal entitlements played an important role in organiz-
ing efforts; why do not they play such a role now?
In the conditions and contexts in which they live—united by the abusive practices
in welfare administration, rural isolation, and low education [ . . . ]—it is not hard to
understand how an individualistic privacy claim based on the nobility of the law
would fail to make sense. (Scheingold 1974, 111)
Gilliom neither wants to defend, nor to critique rights. But he does conclude
that rights have little relevance for the women in his study. Further claims
to privacy rights in this context are not recognized as, probably because
these women correctly suspect that they would not function as, emancipa-
tory tools. Citing Bussiere (1997), he notes a long standing tension in Amer-
ican welfare politics between the language of rights and the demands of
caring for children. Even in the context of National Welfare Rights Organi-
zations (NWRO), it was a subject of much disagreement:
The disagreements between the male strategists and the AFDC mothers went beyond
tactical questions to disputes over the very language in which subsistence needs
ought to be couched and legitimated. Although AFDC mothers and their children
received tangible benefits from court victories, the language of welfare rights that
the NWRO male leaders and LSP (Legal Services Program) lawyers aroused ambiva-
lence among some members of welfare the NWRO [ . . . ] Although finding inspira-
tion in a natural-law understanding of human rights, the NWRO women groped for
a way to think about motherhood and subsistence needs that resonated more directly
with their particular experiences raising children single-handedly under daunting
circumstances. The disagreements between the men and the women produced so
much friction that the NWRO members ousted the male leaders in the early 1970s.
(Bussiere 1997, 100–1)
Neither Bussiere nor Gilliom suggest the inevitability, the philosophical or

empirical necessity, of tension between the language of rights and the
demands of care. What their works do suggest is that if “rights talk” is the
hallmark of American liberalism, it is curiously absent among some of
its populations. Across historical and spatial contexts, for populations of
economically vulnerable mothers, “rights talk” is both unfamiliar and
uncomfortable. The call to turn to “justice” as remedy to the limitations of
care, seems nonsensical.
4.2. The Invisibility of Care

One consequence of beginning with the actual organization of “needs” in
contemporary societies is that it prompts consideration of what gets recog-
nized as a “need” and what does not. Once again, the division of people into
those who are understood as vulnerable and those who are taken to be
autonomous shapes the politics of this recognition.
For the vulnerable, there are often genuine political struggles about defin-
ing “needs.” Because the vulnerable are defined as needing the help of
others they are also frequently positioned as needing the authority of others,
specifically needing the authority of caregivers to define their needs for
them. Some vulnerable groups are able to assert a countervailing view of
their needs. ACT-UP is an example of people, marginalized by mainstream
conceptions, who asserted their own capacities to define their needs. The
disability rights movement has deliberately used the language of rights to
insist that they be permitted to shape and to define their own senses of
needs. But many of the most vulnerable, the infirm, disabled, children, etc.,
are unable to assert their own needs. For such individuals, they are often at
the mercy of “experts” and care givers.
All humans have needs, but some people’s needs are resolved within the
context of a private household or through a market process that seems to be
an exchange rather than the fulfilling of a “need.” The discourse of “needs”
itself already suggests that one is in trouble. For the most part, we do not
think about the fulfilling of needs through market exchanges as fulfilling
“needs.” The market became a prominent way for satisfying needs, as no
less an analyst of the market than Adam Smith asserted: “It is by treaty, by
barter, and by purchase, that we obtain from one another the greater part of
those mutual good offices which we stand in need of” (Smith 1981, 27).
Yet Smith’s description of “those mutual good offices which we stand in
need of” is not the usual locution to describe how we obtain things. On the
contrary, whereas buying and selling is seen as a natural state of human
activity, the very use of the language of needs is to invoke unequal relations
in which one party is making a judgment about another. The language of a
“special needs” child, for example, is not about a child’s exquisite taste for
caviar, but about that child’s inabilities. Nancy Fraser described the func-
tions of needs talk in 1989: “needs-talk functions as a medium for the making
and contesting of political claims: it is an idiom in which political conflict is
played out and through which inequalities are symbolically elaborated and
challenged” (Fraser 1989, 161–2).
Notice, then, that to invoke the language of “needs” is to create the con-
dition for a discussion of those who are somehow “lesser” and require the
intervention and assistance of those who are “normal.” Thus, the people
who are viewed as having “needs” are those who are least well prepared to
defend their capacities to assert anything about the nature of their needs.
In debates about people’s “needs,” the majority, the powerful, or the
expert, often substitute their own accounts of needs for the voices and views
of those who are affected. Consider this argument from two sides, first from
the side of welfare recipients, who were deemed as “needy” in their depend-
ency upon the state, and second, from the side of “needy” middle class
children whose needs are, nonetheless, invisible.
That women and children on welfare should be viewed as “dependent”
upon the state is a remarkable turn in the political rhetoric that accompa-
nied the passage of the so-called Personal Responsibility Act (welfare
reform). One of the classic justifications for the welfare state has been that
it prevents vulnerability and dependency. Harking back to the classic liberal
abhorrence of dependence, (think of Rousseau) one goal of a robust welfare
state was to provide a collective entitlement and solution to the problem of
individual vulnerability (Goodin 1985). In the current rhetoric, though, this
created a new “need,” for women on welfare had become “dependent” upon
the state. To the political leaders who posited this account, such dependency
was also degrading. The solution, they suggested, was to put all of those
women to work.

But there is also another account of the needs that the welfare reform bill
was meant to correct. The bill begins with a discussion of marriage and of
the need for two parent families to raise children. The unwritten subtext of
this legislation relies upon the fact that the kinds of jobs that most non-
professional women can get pay very badly (they are, for the most part, care
jobs), so in order to escape from welfare, most women would need to marry
(i.e., find an eligible man who will help to pay for those kids). Of course, in
their rush to support marriage, right wing activists ignore the fact that a very
large percentage of the women on welfare have been victims of domestic
violence or sexual abuse.6 By recreating a kind of private dependency as a
substitute for public dependency, welfare reformers have not changed the
status of women as dependents, and they may have made some women
more vulnerable to abuse. Nonetheless, through a careful manipulation of
the “politics of needs interpretation,” reformers were able to make this relin-
quishing of a federal entitlement into something that they argued better
meets poor people’s needs.
We might next turn to an analysis of needs in a quite different context, the
up-bringing of middle-class children and “privileged irresponsibility.” In
recent years, it has become popular to use the language of “privilege” to
mean the opposite of what it once meant. Privilege originally referred to an
earned benefit: For example, admittance to the faculty club is a benefit that
comes from membership in it, and one has had to do something (either join
the faculty or apply for admission to the club) to be a member. Increasingly,
sociologists and others write about “privilege” not as an earned benefit, but
as something bestowed by ascription, for example, Peggy McIntosh’s notion
of “white skin privilege” (McIntosh 1988). Contemporary uses of privilege
thus confuse achievement and ascription.
“Privileged irresponsibility,” is closer to the original meaning of privilege
(Tronto 1993). It refers to the ways in which the division of labor and exist-
ing social values allow some individuals to excuse themselves from basic
caring responsibilities because they have other and “more important work”
to perform. To use the language of Waerness (1990), privileged irresponsi-
bility is a special kind of personal service in which the recipients of others’
caring work presume an entitlement to such care. Such an entitlement “runs
in the background,” i.e., it is not to be noticed, discussed, or remarked upon.
Consider, as an example, the ideological version of the traditional division
of household labor. A breadwinning husband “takes care” of his family by
earning a living; in return, he expected his wife to convert these earnings
6
“By 1997 quantitative research conclusively established that, although domestic violence is a
factor in approximately 6 percent of all U.S. households, 20 to 30 percent of women receiving
welfare are current victims of domestic violence—a considerable overrepresentation” (Raphael
2000, 5).

into comfortable shelter, edible food, clean clothing, a social life, manage-
ment of the household, and so forth. Nor did the breadwinner husband
think it was a part of his responsibility to know very much about the com-
plexities of food preparation, household management, etc. Such men rarely
learned how to “take care of themselves.” Care work, invisibly and effi-
ciently performed, was a privilege of his role. As to the caring needs he had
and had met by the labor of those around him on “the other side of the pay-
check” (Bridges 1979), he felt no sense of responsibility.
McIntosh and others who write extensively about “privilege” assume that
when people learn that they are privileged by ascription, they will go
through a process of “consciousness raising” and surrender their privilege,
since it is unjust. Privileged irresponsibility operates under a somewhat dif-
ferent logic in which the needs made invisible by privilege do not undergo
re-examination once they are made visible.
Privileged irresponsibility is rarely visible, either. One of the great bene-
fits or privileges that comes from being in a position of superiority in a hier-
archical system is that one need not consider one’s role or responsibility in
maintaining that system. Thus, such systems come to rely upon the pecu-
liar ignorance of the beneficiaries of the system (Mills 1997; Walker 1998).
Such privileged irresponsibility usually takes the form of complete igno-
rance of a problem, but it may also involve a mistaking of the needs in the
situation.
Unless basic questions about the nature of social responsibility are
rethought, there is no reason to expect that noting this privilege will cause
any discomfort. It may be the case that (to use the same example) the
husband recognizes that he is getting a good deal, but he is likely to think
that his wife is also getting a good deal. Especially in a culture that empha-
sizes that each of us is only responsible for our own lives, and ignores the
caring that supports such lives, such privilege is very difficult to unseat.
Privileged irresponsibility always concerns personal service and not nec-
essary care. The problem however, remains, how does one know what con-
stitutes personal service and what necessary care? Furthermore, whose
account of essential needs will prevail? Usually, the privileged also expect
that others will provide the personal service that they require on terms that
are agreeable to them.7 The idea that this situation reflects a proper division
of labor in society, however, and not the outcome of a public account of
needs, prevents any reconsideration of responsibility.
Consider, as an example, the difference between how middle class and
working class parents conceive of childrearing and of what “needs” their
7
“You want someone who puts the children before herself,” said Judy Meyers, 37, a mother
of two in Briarcliff Manor, N.Y., who works for a health insurance company. “But to find
someone for the right amount of money is not so easy”: Caren Rubenstein, Consumer’s World:
Finding a Nanny Legally, The New York Times, 28 January 1993, C1.

children have. As Lareau (2000) has argued, middle class people are likely
to think of the task of raising their children as the task of identifying and
developing their children’s talents. Working class parents, on the other hand,
are likely to conceive of childhood development as a process of natural
growth which requires little prodding or support from adults. The result is
that middle class children are likely to require a retinue of supporting adults
and a plethora of material objects for their proper growth. From the stand-
point of middle class parents, who usually cannot provide such services for
their own children but have defined these goods as essential, these forms of
care fall more into the category of necessary care. And since parents pay for
professionals for such care on the open market, they are likely to have to
pay dearly for such services. At the same time, though, notice that the time
crunch faced by middle class parents who are trying to pack as much enrich-
ment into their children’s lives as possible requires them to use another array
of personal services: launderers, house cleaners, food preparers at fast food
restaurants and in grocery stores, who are not well paid and not profes-
sional. Notice then how the somewhat invisible care workers providing
various personal services are ignored.
From the standpoint of working class parents, for whom many of the frills
of middle class children’s lives are seen as inessential, all of this care work
probably constitutes personal service.
The privatization of reproductive care that has accompanied the growing
public nature of productive work reflects as well the relative social power
of different groups to make their contributions more highly prized and rec-
ognized. Relatively more powerful people in society have a lot at stake in
seeing that their caring needs are met under conditions that are beneficial
to them, even if this means that the caring needs of those who provide them
with services go unmet. More powerful people can fob the work of care on
to others: men to women, upper to lower class, free men to slaves. Care work
itself is often demanding and inflexible, and not all of it is productive. People
who do such work recognize its intrinsic value, but it does not fit well in a
society that values innovation and accumulation of wealth.
4.3. Analysis: The Actual and the Historical Organization of Needs and Rights
One reason why this is so disturbing is that we thus note that while “rights”
talk and “needs” talk are initially posited as alternative ways to make sense
out of political requirements, in fact both rights talk and needs talk end up
silencing the same individuals: those who are less well off. Those who are
least well off in society are likely to be deprived of the ability to use rights
talk and needs talk in order to describe their circumstances and make argu-
ments for their political positions.
An important question to ask, however, is why rights talk and needs talk
become distortions of the possibilities for some to express their views
politically. To ask the question another way, what must be true of the
“normal” asserters of rights whose needs are met by the market in order for
this circumstance to come into existence?
The most important characteristic of them, if we are to take Adam Smith’s
ideas seriously, is that they are capable of “trucking” and bartering, of
engaging in exchange relationships. Note that Smith, writing in eighteenth
century Scotland, could presume the existence of a household that met
most of the caring needs of the individuals who lived within it. Now
that families are no longer capable of providing so many care functions,
the question of how such needs are to be met becomes a public question.
But rather than recognize the ways in which the fiction of the autonomous
individual continues to belie the nature of who gets described as needy and
who not, we continue as a culture to “background” the “private” work of
care.
What happens, then, when such “private” care becomes public? What
happens when we foreground the carework that is the necessary back-
ground condition for growth and prosperity? What happens when we rec-
ognize that it is not a needy few but most people, indeed all people for at
least part of their lifetime, that require care?
The current organization of care is such that the needs of real people can
be ignored. Thus, the reality of needs talk, like rights talk, is to keep us from
recognizing what is actually going on.
In sum, we have recognized the realities of both “rights talk” and “needs
talk” amount to a similar problem.
If Waldron is correct that there are limits to needs talk, though, the solu-
tion to his problem may be found in having a more sophisticated account
of the nature of needs and rights. As Waldron suggests, rights have corre-
sponding duties. Perhaps one way to rethink the connection between needs
and rights is to rethink the relationship of rights to duties.
The liberal justice tradition is often interpreted as so tightly wed to con-
cepts of autonomy as self-sufficiency and freedom as non-intervention that
such connections between needs and rights, between rights and duties seem
impossible to draw. Although what follows is sketchy, it is important to rec-
ognize that in the eighteenth century, the notion of public duties to care was
not as far removed from the conception of a good society as we would like
to read back into the founders of market liberalism. Furthermore, one crucial
dimension in transforming care from a concern for all to a concern for only
some is the way it became engendered in this discussion.
One way to put the argument about the need for public care is to see it
precisely as the duties Waldron has described as accompanying a flourish-
ing theory of rights. To say that people have a duty to care for others seems
out of keeping with neoliberal ideology. But it is a basic tenet of earlier liberal
thinking. Locke is well known for his theory of natural rights, but we quickly

forget that he also believed that people have a basic natural duty to preserve
all mankind:
Everyone as he is bound to preserve himself, and not to quit his station wilfully; so
by the like reason when his own preservation comes not in competition, ought he,
as much as he can, to preserve the rest of mankind, and may not unless it be to do
justice on an offender, take away, or impair the life, or what tends to the preserva-
tions of the life, the liberty, health, limb or goods of another. (Locke 1993, par. 6)
Other eighteenth century natural law theorists also believed that there were
natural duties that paralleled natural rights. Giambattista Vico, in a rhetori-
cal flourish, describes justice in this way: What is justice? It is constant care
for the common good (Vico 1990, 67). The notion of “duty” was a value and
also a point of concern for the Scottish Enlightenment thinkers, such as
Smith and Ferguson, who were concerned that the easier way of life emerg-
ing in commercial society had the effect of removing the more masculine
and robust elements of service from male citizens. Indeed, Ferguson (1995)
frequently used the term “effeminate” to describe the dangerous elements
that he saw emerging in a greedy, commercial society. Smith also feared that
the more masculine virtues of courage would be lost as societies became
more commercial.8
Smith still had a public concept of care insofar as he described the wide
range of state interests in creating a unified community, borrowing the
French term, police. This language of “police powers” continues in Ameri-
can law as well, describing the creation of the conditions for a well governed
state, or, if you will, the conditions of public care. Smith’s notion of what
constituted and was permissible as a public concern for care became more
narrow, but he did allow that there were some concerns that could only
belong properly to the community as a whole (Smith 1981).
Nevertheless, it is interesting to observe that by the end of the eighteenth
century, with the rise of the sentimental family (Okin 1982), discussion of
human interconnections that rested on a premise other than self-interest had
begun to find its place in the private sphere only. Although echoes of repub-
lican virtue continued to sound, for the most part the notion of public care,
of caring for the commonwealth, was viewed as a chimera at best and a
self-serving deception at worst. Smith, setting a tone for modern market
societies, was happy to put greater faith in an invisible hand.
8
“[ . . . ] perhaps, the delicate sensibility required in civilized nations sometimes destroys the
masculine firmness of the character. In general, the style of manners which takes place in any
nation, may commonly upon the whole be said to be that which is most suitable to its situa-
tion. Hardiness is the character most suitable to the circumstances of a savage; sensibility to
those of one who lives in a very civilized society” (Smith 1976, V.1.23).

Just as we have tried to contextualize the organization of care and its rela-
tionship to justice by attending to their institutionalization in current prac-
tices, we have tried to assess the relationship between needs and rights,
rights and duties within contemporary liberal theory, against a longer
history of liberal political thought. Taken together these analyses serve to
ground both the political and conceptual reconstruction of care with which
we conclude.
5. Reconstruction: Care as a Public Value

In devising a political vocabulary for care one useful approach will be to try
to discern what “public care” might be. The term “public” is not especially
popular in the United States, whatever it modifies, “public schools,” “public
housing,” “public transportation,” “public hospitals,” etc., carries the stigma
of being inadequate. Despite this danger, we shall suggest that describing
care as a public value is one way to escape from the limitations of “rights
talk” and “needs talk” as a way to frame the discussion about care. We shall
suggest that, though it does not do so at present, it might be possible to
reconceive of care as a public value in which the need for care is shared by
all members of the society, and not just by those who have been defined by
their difference as incapable.
5.1. Care as a Public Value for Everyone

This reconstructive project requires two steps. The first step is to recognize
that thinking of care as a public concern is not so foreign to our ways of
thinking and to recognize the point at which public care became, instead,
the more limited notion of “welfare.”9 We have posited that two pieces were
instrumental in moving the argument in this direction. First, the distrust of
public activity that led to the championing of markets played a destructive
role in arguments for public accounts of care. Second, a gendered dimen-
sion in developing the separation of public and private, autonomous and
dependent, is deeply implicated in the process of “othering” the needy so
that the ongoing separation of the “able” from those needing care could
be drawn. Let us review some of the ways in which we have made this
argument.
We began by asserting that attention to two aspects of the current organi-
zation of care and justice form a critical starting point from which to con-
9
For example, Holmes and Sunstein 1999 begins with an analysis of property rights, illustrat-
ing the incredible public expense of private property rights as we think about enforcement and
protection of those rights. Illustrating the way in which even rights to non-interference depend
on the state to be legally and politically meaningful, effaces the distinction between positive
and negative rights. This distinction has been crucial to the objection to the welfare spending
and more fundamental commitment to public care.

ceptualize care as a public value. Despite the claim that rights are by their
very nature universal claims, there is much evidence to suggest that this uni-
versality is a myth and that rights are differentially accessible: Living in
poverty makes accessing one’s rights considerably more difficult, perhaps
even difficult enough to eliminate rights consciousness altogether. Further,
the current organization of care work perpetuates the invisibility of care
work to a socially privileged few and makes it appear that only those who
are somehow deficient have “needs.”
Gilliom steers clear of either defending or critiquing rights; he simply
wants to suggest that for the women in his study, rights do not appear as
helpful tools and that their need to care for their families produces success-
ful strategies of resistance to attempts by the state to exercise control through
surveillance.
While there is clearly much to be lost in the departure from the conventional lan-
guages of public conflict, what these claims and critiques based in particular need
bring as an alternative to rights is important. What they may give up in nobility, they
may gain in accessibility. What they may give up in their capacity to unite and uni-
versalize, they may gain in personal relevance. And what they may give up in their
potential to lead to widespread demands for fundamental change, they may gain in
the realization of short-term and much needed little gains in the effort to get through
the day. (Gilliom 2001, 12)
The sense one gets reading this is that these women have given up a lot.
They are making trade-offs others do not have to make. It is worth asking
how we might reconstruct policy so that trade-offs like these are no longer
necessary for these women.
While there have been periods in American welfare policy when depend-
ence on the state for cash benefits was not pathologized (Fraser and Gordon,
1997), the 1980’s ushered in a new period of public hostility to the poor and
welfare dependent. Ronald Reagan spoke the language of class warfare but
in his war the privileged were the aggressors. We have had now more than
twenty years of public rhetoric from the two sides of the aisle disdaining the
“sense of entitlement” among the poor. And the 1996 welfare reform codi-
fied these sentiments. Legal Aid has been significantly handicapped—a pub-
licly funded program that provided legal services to the publicly dependent,
it was seen as “biting the hand that fed it.” Under these circumstances it is
hardly surprising that there is little talk of rights among the welfare recipi-
ents Gilliom interviewed, little in the way of a contemporary welfare rights
organization, and little prospect that the disparity between legal entitle-
ments of the poor (such as they are) and provision to the poor, will create
the space for a movement.
The disdain for the dependent, the concern Waldron voices that the lan-
guage of needs is inconsistent with full-fledged membership in society, are
assumptions that must be challenged in order to make rights accessible to a

population without them. Tronto articulates such a challenge in the context

of work on care:
By not noticing how pervasive and central care is to human life, those who are in
positions of power and privilege can continue to ignore and to degrade the activi-
ties of care and those who give care. To call attention to care is to raise questions
about the adequacy of care in our society. Such an inquiry will lead to a profound
rethinking of moral and political life. The connection between fragmented views of
care and the distribution of power is better explained through a complex series of
ideas about individualism, autonomy, and the “self-made man.” These “selfmade”
figures would not only find it difficult to admit the degree to which care has made
their lives possible but such an admission would undermine the legitimacy of
the inequitable distribution of power, resources and privilege of which they are the
beneficiaries. (Tronto 1993, 111)
Stephen Holmes and Cass Sunstein voice a parallel set of concerns about the
“illusion” of autonomy in the context of concerns about the law.
Individual freedom, however defined, cannot mean freedom from all forms of
dependency. No human actor can single-handedly create all of the preconditions for
his own action. A free citizen is especially dependent. He may feel “independent”
when he goes into a do-it-yourself store and buys a do-it-yourself kit. But his
autonomy is an illusion. Liberal theory should therefore distinguish freedom, which
is desirable, from nondependence, which is impossible. Liberty, rightly conceived,
does not require a lack of dependence on government; on the contrary, affirmative
government provides the preconditions for liberty. (Holmes and Sunstein 1999,
204)
Thus, the first step of this reconstructive project is to confound current ways
of dividing needs and right, care and justice.
5.2. A Duty to Public Care

The second step of our reconstructive project, which we shall only briefly
consider here, is to identify what elements a public concept of care would
contain. Public care requires two profound switches. There has to be a switch
away from some of the assumptions of market society. There has to be a
switch toward more democratic and open expressions of human needs. We
will consider each of the propositions in turn.
The assumption that human actors are autonomous agents who primarily
“truck and barter” ignores the reality of human vulnerability and inter-
dependence. All humans have “needs,” and though they can rely on the
market to meet some needs, the market has to assume that there are indi-
vidual agents capable of making decisions based on their interests. Such an
assumption in the first place puts into the background all humans who are
not so capable, which includes all humans for at least a part of their lives.

Further, even if we were willing to completely background such humans,

there is no reason to believe that the market will accurately reflect the views
of agents who can express themselves. Any market will distort human needs
to some extent, inviting people to substitute fantasy for reality, their over-
identification with the wealthy (Smith 1976) with a more sober assessment
of their real needs. Late capitalist markets, with their rapacious logic requir-
ing the constant creation of new needs and desires, distort even more com-
pletely basic human needs in their desire to convince people to purchase
more commodities.
When the market becomes the distributor of care in the first resort, the
logic of care is transformed into the logic of work, or of accumulation. The
pressures to conform to production models of the use of time, to manage-
rial logics of greater efficiency, substitute for the element that care most
genuinely requires: creation and sustenance of human relationships.
Bemoaning the importance of the market as a prominent current institu-
tion for distributing care, however, does not solve the problem of care. In
order to solve it, we need to return to a political understanding of the inter-
relationship of care and justice, of needs and rights.
We seem to have arrived at an impossible point, though. The advantage
of the market, whatever its weaknesses, is that it is an efficient mechanism
for accommodating diverse conceptions of needs and desires. Care is
always, at its best, particular: shaped to the needs of individual recipients
of care and individual providers, shaped to the ongoing relationships among
them. How is it possible to make a collective provision for something so
particular?
The answer lies in what we think is universal and what we think is par-
ticular in each case. We now labor under the misconception that rights are
universal. We have shown that they are not, and that those who are in some
ways most in need of asserting their rights never use that language to
describe their situation. We also now labor under the misconception that
needs are particular, and indeed, only the vulnerable have needs. This
account distorts the reality of human interdependence and allows some to
shun their duties of responsibility.
What is most important, then, is that there be democratic processes by
which rights can be asserted for and by all, and needs understood and
frankly explained by and for all. There should be, in the end, a duty to care
about public care, which requires a recognition of collective responsi-
bility for all needs. The goal is to start from these three presumptions:
1) everyone is entitled to receive adequate care throughout their lives;
2) everyone is entitled to participate in relationships of care that give
meaning to their lives; 3) everyone is entitled to participate in the public
process by which judgments about how society should ensure these first two
premises are framed.

The first point sounds as if it is backsliding to the rights tradition, it seems

to be classically an entitlement of a “social right,” as Thomas H. Marshall
asserted. Note, though, we have not argued against a rights tradition, simply
that it not be the only way to understand the place of care in public
life. Nevertheless, it is not enough to assert any entitlement to care as if
it were a good to be distributed. The second and third points are also
critical.
The second point is critical because people’s views of good care do vary
by race, class, ethnicity, religion, region, ideology, and even personality.
Thus, the notion that one model of care will work for everyone is absurd.
Platitudes such as that every frail elder person should be confined to a
nursing home, or that every family should take care of its own violate the
ways in which humans vary in their abilities to give and receive care. Just
as no one should be forced to receive care of a type that they find demean-
ing, neither in a good society would we insist that family members, for
example, must provide care; Finch (1996) calls this “a right not to care.”
The third point is critical because simply to say that people will think of
“others” when they are acting in altruistic ways10 is not to say that they will
genuinely reflect upon the needs of others as opposed to imposing their own
sense of the needs of others onto care provision. We have earlier seen how
the practice of presuming that everyone’s needs and desires are like one’s
own causes people to act in ways that currently perpetuate vicious circles
of care. Such a posture can only be turned around through reflection upon
people’s real accounts of their needs. Democratic processes are required to
assure that the voices of all people, not just the powerful, middle class, and
so forth, are heard.
This requirement for democratic process may seem unrealistic given how
unrepresentative most political institutions in the United States are. But
most care is local: One does not need to think about democratic processes
to create care as operating only on the highest level. White has demonstrated
that in specific care settings, those that are organized more democratically
succeed more thoroughly (White 2000).
These three premises are only the beginning of a discussion about trans-
forming American notions of public care. They do suggest, however, how
rights and duties need to be rethought in order for us to escape from the
current separations of people into those with care needs and those whose
privilege makes them seem as if they are people without care needs.
10
There is empirical evidence to suggest that, at times, Americans ignore both their instincts
to make people rely upon themselves and their dislike for the particular lives of others. Kelman
1988 argues, for example, that despite the culture of individual self interest, there is a lot of evi-
dence to suggest that people do behave in a way that reflects a “public spirit.” Furthermore,
he notes, the more people observe altruistic behaviour, the more likely they are to behave altrui-
stically: ibid., 52–3.

The argument we have made in this paper surely would change the land-
scape of American politics and political discourse in fundamental ways. It
would do so in a way that would make our society more humane.
(For Julie Anne White)

Ohio University
Department of Political Science
Bentley Annex
Athens, OH 45701
U.S.A.
E-mail:whitej@ohiou.edu
(For Joan C. Tronto)

Hunter College, CUNY
Department of Political Science
695 Park Avenue
New York, NY10021
U.S.A.
E-mail:jtronto@hunter.cuny.edu
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Ratio Juris. Vol. 17 No.

4 December 2004 (425–53)

Political Practices of Care:

workforce is therefore necessary to adequate care provision. Justice for

2. Care and Justice: The Limitations of a Philosophical Approach

At least initially for Gilligan, “care is about responsibilities rather than

© Blackwell Publishing Ltd 2004.

imagery of relationships to replace a hierarchical ordering that dissolves with the

For Noddings, moral obligations are circumscribed by an inner-circle, the

© Blackwell Publishing Ltd 2004.

Diemut Bubeck raises her challenge to Noddings on exactly this point:

accounts for the situation and circumstances surrounding dependency, she

3. Rights and Needs: The Limitations of the Critical Legal Approach

Jeremy Waldron has responded to Tushnet on this score, rejecting Tushnet’s

© Blackwell Publishing Ltd 2004.

translated into the language of rights if it is to serve in the struggle for

© Blackwell Publishing Ltd 2004.

While Waldron begins by acknowledging the determining role of politics in

4. Starting with the Actual: The Inaccessibility of Rights,

© Blackwell Publishing Ltd 2004.

The language of dilemmas individualizes ethics, making morality a personal issue.

© Blackwell Publishing Ltd 2004.

Chambliss offers a sympathetic account of nursing. Nurses are in a difficult

© Blackwell Publishing Ltd 2004.

are privileged in traditional Marxist thought as our political saviors, the

Scheingold’s work is the foundation for several such empirical studies. In

4.1. The Inaccessibility of Rights

Gilliom (2001) offers an assessment of rights claims in practice that draws

© Blackwell Publishing Ltd 2004.

Neither Bussiere nor Gilliom suggest the inevitability, the philosophical or

4.2. The Invisibility of Care

© Blackwell Publishing Ltd 2004.

© Blackwell Publishing Ltd 2004.

© Blackwell Publishing Ltd 2004.

© Blackwell Publishing Ltd 2004.

© Blackwell Publishing Ltd 2004.

5. Reconstruction: Care as a Public Value

5.1. Care as a Public Value for Everyone

© Blackwell Publishing Ltd 2004.

© Blackwell Publishing Ltd 2004.

population without them. Tronto articulates such a challenge in the context

5.2. A Duty to Public Care

© Blackwell Publishing Ltd 2004.

Further, even if we were willing to completely background such humans,

© Blackwell Publishing Ltd 2004.

The first point sounds as if it is backsliding to the rights tradition, it seems

© Blackwell Publishing Ltd 2004.

(For Julie Anne White)

(For Joan C. Tronto)

© Blackwell Publishing Ltd 2004.

© Blackwell Publishing Ltd 2004.

© Blackwell Publishing Ltd 2004.

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