Can Care Ethics be Institutionalized?

Toward a Caring Natural Law

Theory*

[*A revised version of this paper has been accepted for publication in the Journal of Politics,

where it will appear as “Care Ethics and Natural Law Theory”].

Daniel Engster
Assistant Professor
Department of Political Science
The University of Texas at San Antonio
6900 North Loop 1604 West
San Antonio, Texas 78249
[email protected]

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 Carol Gilligan’s In a Different Voice (1982) established care ethics as a major new

perspective in contemporary moral and political discourse. Yet, two decades after the original

publication of this work, it remains unclear whether care ethics can provide the basis for a

distinctive political theory, or as Gilligan herself indicates, represents only a supplement to

theories of justice (Gilligan 1982, 173-174). Taking up the latter line of argument, a number of

scholars have argued that care ethics is appropriate only for private moral relations among

intimates but unsuited for a general political morality (Barry 1995, 252-256; Habermas 1990, 179-

181; Kohlberg 1981-84, 2:229; Mendus 1993; Puka 1990, 1991). Some feminist scholars have

criticized this argument as an attempt to contain care to private relations, but have failed to show

how care ethics can be translated into a consistent and robust institutional political theory (Tronto

1993, 87-91).

This article develops an institutional political theory of care by integrating care ethics and

natural law philosophy. Martha Nussbaum, John Finnis and others have in recent years revived a

natural law approach to morality and politics that avoids the biological and metaphysical premises

of classical and medieval authors (Finnis 1980; Nussbaum 2000). Yet their theories remain tied to

an implicit and contentious teleology of human flourishing that limits their plausibility. The

argument here is that care ethics can provide an immanent and free-standing foundation for natural

law that avoids the problems of recent natural law theories, and, in turn, that natural law can

provide a framework for formulating a concrete and institutionally-oriented caring political theory.

Shifting the basis of natural law from a naturalist teleology to care ethics entails some amendments

to natural law principles. But the two theories are generally complimentary and symbiotic: the

revival of natural law can be successfully carried out by drawing upon care ethics, and care ethics

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can be formulated into a robust political theory by building upon the insights of natural law

philosophy.

The Particularity of Care

There are a number of different ways of defining care ethics, but a core element in all

definitions is an emphasis on the concrete and particular (Dancy 1992). Care ethics takes the

concrete needs of particular individuals in specific circumstances as the starting point for what

must be done (Tronto 1994, 105). Care ethics is thus distinct from moral theories that start out

from broad principles and rules of action, and it is this particularism that has led many writers to

conclude that it is unsuited for general moral and political relations among people. Two of the

writers who have developed this critique of care ethics most forcefully are also two of their

strongest proponents. Nel Noddings and Jacques Derrida both identify care ethics as a superior

moral orientation to impersonal theories of justice based upon principles and rules, yet both also

argue that it is untranslatable into a general moral and political theory.

Noddings roots care ethics in the “attitude which expresses our earliest memories of being

cared for and our growing store of memories of both caring and being cared for,” and as such,

claims it is “universally accessible” (Noddings 1984, 5). All people have experiences of being

cared for, and most have experiences of caring for others, that they intuitively recognize as good.

Everyone thus implicitly acknowledges the morality of caring relations – even if only among

family or friends (49, 79-81). To reject care on principle is to reject the basic conditions of human

development and sociability.

Caring is superior to principled moral theories, she continues, because it involves attending

to the particular needs of concrete others. Here she draws upon Martin Buber’s account of ethical

relationships in I and Thou (32). Buber describes the I-Thou relationship as one of total and

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immediate identification between two individuals. Noddings elucidates this relationship as one of

engrossment.

Caring involves stepping out of one’s own personal frame of reference into the

other’s. When we care, we consider the other’s point of view, his objective needs,

and what he expects of us. Our attention, our mental engrossment is on the cared-

for, not on ourselves. Our reasons for acting, then, have to do both with the other’s

wants and desires and with the objective elements of his problematic situation (24).

In contrast to this notion of engrossment, principled moral theories distance us from the concrete

and personal qualities of other human beings. Rather than meeting others on their own terms, we

subsume them under objectifying categories. “The other’s reality becomes data, stuff to be

analyzed, studied, interpreted” (36). What is lost in these moral theories is connection with the

other concrete person. One acts from principle rather than for persons in a manner that can be cold

and calculating – and sometimes downright evil as, for example, when we view the other as

foreign, menacing or in some sense deficient (Noddings 1989). Care places the particular needs of

individuals at the foreground of moral action so that attention to immediate human concerns take

priority over abstract principles and programs.

Noddings’s definition of care necessarily entails a particular and situational morality. She

acknowledges that we may “care about” strangers in the sense of maintaining “an internal state of

readiness to try to care for whoever crosses our path,” but she distinguishes this perspective from

“the caring-for to which we refer when we use the word ‘caring’” (Noddings, 1984, 18). Caring

per se requires personal contact and varies according to individuals and situations. Indeed,

because of the particularity of care, Noddings is wary of passing judgment on the caring activities

of others. What is good for one individual in one situation may not be good for another in another

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situation. “Since so much depends on the subjective experience of those involved in ethical

encounters, conditions are rarely ‘sufficiently similar’ for me to declare that you must do what I

must do” (5). Care ethics does not then stipulate any substantive norms, but rather consists of an

attitude of attending to the other’s wants and needs. The goal “lies in trying to discern the kinds of

things I must think about” in caring for others (13-14). Thus even though Noddings argues that

care represents a universal morality, she claims it occurs only in intimate relations where it is

highly variable and subject to the practical judgments of the care-giver.

Following directly from her definition of care, Noddings argues that caring cannot be taken

as a model for general moral relations or a political theory. Caring occurs in circles of intimates

and friends who are engrossed in one another. These circles may be linked through chains of

affection when members of one circle form relations with members of another (46-48).

Individuals may also choose to extend care to other particular strangers because they recognize it

as the moral thing to do (83). Noddings calls this an ethical relationship of care. But she rejects

“the notion of universal caring – that is, caring for everyone – on the grounds that it is impossible

to actualize and leads us to substitute abstract problem solving and mere talk for genuine caring”

(18). A person can only care for so many particular others, and since each of these must be treated

particularly without general rules or principles, we must hold in abeyance our readiness to care for

those whom we do not yet know. Noddings similarly rejects the possibility of translating care

ethics into political theory. The commitment to caring, in fact, “invokes a duty to promote

skepticism and noninstitutional affiliation. In a deep sense, no institution or nation can be ethical.

It cannot meet the other as one-caring or as one trying to care. It can only capture in general terms

what particular ones-caring would like to have done in well-described situations” (103). General

legal rules and policies do violence to the particular and variable needs of individuals. Noddings

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therefore advocates a form of philosophical anarchism: the caring individual should distance

herself from the uncaring world of law and politics and attend primarily to those particular

individuals within her circle of care.

In the “Force of Law,” Jacques Derrida even more forcefully develops this critique of moral

and political theory from a caring perspective (1990). Derrida, too, associates morality with a

caring perspective that emphasizes concern for “singularity, individuals, irreplaceable groups and

lives, the other or myself as other, in a unique situation” (949). Rather than drawing upon Buber’s

notion of total identification with the other, however, he invokes Emmanuel Levina’s notion of the

face-to-face encounter as his model of caring justice. In the face-to-face encounter, we are

overwhelmed by the infinite uniqueness and particularity of the other and our very categories of

understanding are overflowed. Given this understanding of the caring relationship, Derrida

suggests that caring justice is probably impossible even among the closest of friends and intimates.

“To address oneself to the other in the language of the other is, it seems, the condition of all

possible justice, but apparently, in all rigor it is…impossible (since I cannot speak the language of

the other except to the extent that I appropriate it and assimilate it according to the law of an

implicit third)…” (949). Nonetheless, Derrida is in fundamental agreement with Noddings about

the nature of morality, associating it with infinite attention to the needs and perspectives of others.

His pessimism about our ability to identify completely with others serves primarily to remind us

that, even when relating to our closest friends and lovers, there are parts of their being that always

escape us.

Derrida’s skepticism about the possibility of caring among intimates makes him even more

critical than Noddings of the justice of laws and institutions. He posits a sharp dichotomy between

“[caring] justice (infinite, incalculable, rebellious to rule and foreign to symmetry, heterogeneous

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and heterotropic) and the exercise of justice as law or right, legitimacy or legality, stabilizable and

statutory, calculable, a system of regulated and coded prescriptions” (959). Law is always unjust

because it fails to respect the particularity of individuals by treating them more or less the same

according to fixed rules and statutes. A judge may take into account some of the unique

circumstances of a person or case in applying the law, but is constrained by statute and precedents

(or what Derrida calls the law’s interest in conserving itself) to fit particular cases into general

categories (981-91). This conflict between law and justice is, from Derrida’s perspective,

irresolvable. The legal system’s interest in consistency and continuity as well as the idea of equal

treatment under the law necessitate a restriction of caring justice, and the moral idea of infinite and

differential care cannot be formulated into general principles or laws.

Having drawn this sharp distinction between justice and law, Derrida adds that the distinction

is never so simple in practice. Law is validated because it is supposedly based upon justice, and

justice requires law in order to be manifested and enforced (959-61). The two are therefore

intermingled in practice even though opposed in theory. The practical lesson Derrida draws from

this aporia is that the infinity of justice “cannot and should not serve as an alibi for staying out of

juridico-political battles, within an institution or a state or between one institution or state and

others” (971). Politics always makes claims on justice, and this is what makes the deconstruction

of politics possible (945, 957). Deconstruction appeals to justice in order to reveal the violence of

laws and policies – not as exterior to politics but as always inherent within its founding and

conserving acts (989) – and in doing so aims to make laws and policies more open and receptive to

the otherness and difference of individuals. Derrida thus proclaims against his critics who have

seen in deconstruction a tendency toward political quiescence and moral apathy that just the

opposite is true: “Deconstruction is justice” (945).

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 One must be juste with justice, and the first way to do it justice is to hear, read,

interpret it, to try to understand where it comes from, what it wants of us,

knowing that it does so through singular idioms…and also knowing that this

justice always addresses itself to singularity, to the singularity of the other, despite

or even because it pretends to universality. Consequently, never to yield on this

point, constantly to maintain an interrogation of the origin, grounds and limits of

our conceptual, theoretical or normative apparatus surrounding justice is on

deconstruction’s part anything but a neutralization of interest in justice, an

insensitivity toward justice. On the contrary, it hyperbolically raises the stakes of

exacting justice; it is sensitivity to a sort of essential disproportion that must

inscribe excess and inadequation in itself and that strives to denounce not only

theoretical limits but also concrete injustices, with the most palpable effects, in

the good conscience that dogmatically stops before any inherited determination of

justice (955).

Derrida’s rousing call to action here belies the claim that deconstruction is apolitical, but confirms

its antipathy toward general moral and political theories. Deconstruction remains forever critical

of general moral and political theories because they make claims on caring justice that they

systematically and by their very nature necessarily violate.

Toward a General Theory of Caring Justice

A number of feminist writers have argued that Noddings’s (and by extension Derrida’s)

definition of care is inadequate and may actually promote uncaring relations (Bubeck 1995; Card

1990; Goodin 1996; Hoagland, 1990, 1991; Tronto 1994; White 2000). In turn, they have

8
formulated more acceptable definitions of care that provide the basis for expanding care ethics into

a general moral and political theory. Yet, none has thus far articulated a fully developed theory.

One criticism of Noddings’s and Derrida’s definition of care is that it accords little

importance to caring for oneself, except perhaps as a means to provide further care for others.

Susan Hoagland writes that a premium is placed in Noddings’s theory on “always being other-

directed” so that “being moral” comes to be indistinguishable from “being exploited” (Hoagland

1991, 255). The model care-giver by this definition would seem to be a martyr, servant or slave.

Indeed, Diemut Bubeck observes that such an ideal of care “lies at the heat of women’s

exploitation as carers,” since a good caregiver by this account selflessly gives herself to others

without considering or complaining about the unjust distribution of caring activities (Bubeck 1995,

176-78). Moreover, as Gilligan argues in her account of women’s moral development, there is

something deficient in a wholly other-regarding caring morality (Gilligan 1982). A mature moral

perspective involves concern for oneself and one’s own well-being within relations of care. Grace

Clement builds on this point to argue that “genuine care” requires the autonomy and concern for

oneself, since an individual must first recognize her own distinct needs before she can recognize

and empathize with those of others (Clement 1996, 27-31).1

A second criticism of Noddings’s and Derrida’s notions of care is closely related to this

first one. A number of critics have argued that the intense dyadic relationships described by

Noddings and Derrida are likely not only to result in the exploitation of the caregiver, but also in

smothering paternalism of the cared-for. Robert Goodin writes that “the trouble with subsuming

individuals into relationships of ‘we’ness,” such as Noddings’s proposes, “is precisely that we then

risk losing track of the ‘separateness of people. Within a full Buberian relationship of ‘we’ness,

we are a single entity, a single personality. Then any can speak for all. That, in turn, makes it easy

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for everyone to impose upon (to exploit, if not strictly dominate) any or indeed every other” (1996,

507). Julie White observes in a similar vein that Noddings “assumes that needs are transparent to

the caregiver” in such a way that the caregiver’s perceptions are privileged in the process of

interpreting needs (White 2000, 116-120). Whatever he or she perceives the other to need appear

to be true based upon the special relationship between them. Jean Grimshaw counters this view of

care by arguing that good care always entails an element of distance between the partners in

relationship.

If I see myself as ‘indistinct’ from you, or you as not having your own being that is

not merged with mine, then I cannot preserve a real sense of your well-being as

opposed to mine. Care and understanding require the sort of distance that is needed

in order not to see the other as a projection of the self, or self as a continuation of

other (Grimshaw 1986, 183).

Interestingly, Derrida acknowledges the importance of distance in his Politics of Friendship (1997,

251-257; 1988, 640-642). In every relationship of friendship, he argues that the friend wants not

only to be treated as a concrete, unrepresentable individual person but also as a generalized other

or moral person just like everyone else. Friendship thus involves the delicate process of trying to

balance the demands of attending to the other’s particular needs while also respecting his or her

general personhood. This obligation to respect the other’s general personhood follows logically

from Derrida’s claim (borrowed from Levinas) that the other can never be fully comprehended.

The only way to respect the otherness of the other is to respect his or her personhood - or in other

words, to remain somewhat distant from them - even while attending to his or her particularity

(1997, 52-65). When Derrida turns to discuss the differences between caring justice and legal

justice in the “Force of Law,” however, he ignores this objectifying element of his theory of

10
friendship and defines caring justice strictly in terms of an infinite attentiveness to the other. An

important element of caring thus drops out of his discussion.

One final criticism of Noddings’s and Derrida’s theories relates to their potential

parochialism. Noddings in particular argues that we can only extend care to those whom we

personally know thus rendering “as ethically insignificant our relationships with most people in the

world, because we do not know them and never will” (Card 1990, 102). Joan Tronto notes that,

given this definition, appeals to care ethics “could quickly become a way to argue that everyone

should cultivate one’s own garden, and let others take care of themselves” (Tronto 1994, 103,

171). Surely, this is not what Noddings and Derrida intended.2 Any adequate definition of caring

must include some attention to the effects of our care (or lack thereof) on other third-parties.

Joan Tronto has formulated a theory of care that addresses these criticisms and lays the

groundwork for a caring political theory. Like Noddings and Derrida, she claims that caring

begins with the willingness “to suspend one’s own goals, ambitions, plans of life, and concerns, in

order to recognize and to be attentive to others” (128). Yet, she departs from their definitions by

arguing that care is not just a disposition or attitude, but a general practice with certain distinctive

features including attentiveness, responsibility, competence and responsiveness (Tronto 1993, 118-

119, 126-137). Moreover, she argues that the practice of caring is distorted when conceived

narrowly in terms of asymmetrical and dyadic relationships, and instead should be understood to

encompass attention to one’s self, one’s loved ones, third-party others, the social environment and

world. She defines care most generally “as a species of activity that includes everything that we

do to maintain, continue, and repair our ‘world’ so that we can live in it as well as possible”

(Tronto 1993, 103). By defining care as a practice and placing it in an overall social context,

Tronto avoids the dangers of self-effacement and parochialism inherent in Noddings’s and

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Derrida’s accounts of care. Her emphasis on the importance of responsiveness in caring

relationships also avoids the potentially paternalistic elements of their definitions. A good care-

giver will not impose her own notions of care on others but rather will always remain attentive to

the other’s needs and concerns as he or she express them (Tronto 1993, 136). One might, of

course, question the expressed needs of others, or suggest to them needs they have not yet

imagined, or refuse to meet their needs on the grounds that they conflict with the care of self or

others. But this element of responsiveness at least ensures that the otherness of the other will be

acknowledged and respected rather than assimilated into one’s own understanding of the good.

By broadening the definition of care to address some of the shortcomings of Noddings’s and

Derrida’s definitions, Tronto opens the way for developing care ethics into a general moral and

political theory. When we turn to her political theory of care, however, the results are

disappointing. She argues that a caring political theory consists of liberal democracy infused with

a more caring citizenry. Indeed, she argues that “care is only viable as a political ideal in the

context of liberal, pluralistic, democratic institutions” because care presupposes “a politics in

which there is, at the center, a public discussion of needs, and an honest appraisal of the

intersection of needs and interests” (158, 168). Institutional principles such as the rule of law, the

protection of rights and a commitment to due process “constitute part of care” because they

promote “listening and responding” (215 n6). Democratic participation and debate are similarly

important because they allow citizens to articulate and discuss their needs.

Tronto is surely correct to argue that rights and democracy are important to a caring political

order, but they certainly do not guarantee it. Rights may just as easily lead to a highly

individualistic and selfish society as a caring one, and participatory democracy may lead to

majority tyranny and the oppression of minority groups. The success of Tronto’s theory thus

12
comes to depend primarily on her claim that a caring political order will be a liberal democratic

society inhabited by caring citizens. These citizens will vigilantly criticize and address power

inequities wherever they may exist and make certain that all people are adequately cared for

through provisions for good schooling, adequate health care, and so on (Tronto 1996, 145).

Unfortunately, Tronto provides no suggestions for how such a caring citizenry might be fostered.

She argues, in effect, that our existing liberal democracy would be more caring if people only

cared more. Her proposal for translating care into political theory thus remains highly abstract,

utopian, and ultimately incomplete.3

Seyla Benhabib outlines a different approach for translating care ethics into a general moral

and political theory by integrating aspects of care theory with Habermas’s communicative ethics.4

She begins by criticizing mainstream liberal theories of justice that associate morality with the

standpoint of the generalized other. Her prime example is John Rawls who in his Theory of Justice

suggests that we ought to place ourselves behind a veil of ignorance when thinking about justice so

that we may abstract from all “contingencies” of race, class, gender, history, and identity and

formulate general principles acceptable to all. Benhabib charges that Rawls’s theory falls into

“epistemic inconsistencies” because a person cannot know the wants and needs of others without

knowing something about their contingent individual characteristics (1992, 161-64). Perhaps even

more dangerously, by depriving individuals of information about the particular characteristics of

others, Rawls’s theory implicitly encourages individuals to treat others just like themselves. In

practice, this usually means subsuming the views of all individuals under the perspective of the

dominant group (153, 163). Benhabib suggests instead that a theory of justice acceptable to all

must take as its point of departure the wants and needs of concrete others in all their particularity

(i.e., the orientation of care).

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 Benhabib argues that a more particular and caring moral and political theory can for the

most part be constructed out of Habermas’s theory of communicative ethics with its emphasis on

rational debate and agreement conducted through procedures that are open and fair to all. Yet,

Habermas, too, remains attached to the standpoint of the generalized other by suggesting that

individuals should put aside their particular interests when engaging in moral debate in order to

achieve consensus with others. By contrast, Benhabib argues that individuals engaged in moral

debate should attempt to understand one another in all their infinite particularity, and strive only to

sustain a continuing moral conversation through reasonable and fair procedures (37-38). She thus

shifts the focus of moral debate from achieving rational consensus to maintaining moral

relationships.

Benhabib does not explicitly draw out the moral and political implications of her theory

beyond suggesting that it requires a set of rights and institutions for ensuring open and fair debate.5

Nor is it, in fact, clear that her theory can be translated into a broad moral and political theory.

Rather than treating care as a practice, she takes as her model of caring the intimate, face-to-face

relation described by Noddings and Derrida arguing that we must in each case be attentive to the

other’s “concrete history, identity, and affective-emotional constitution” so that he or she “feels

recognized, and confirmed as a concrete, individual being with specific needs, talents, and

capacities” (159). In other words, we must bring the deeply caring attitude of intimate relations to

bear on our relations with all others. Benhabib, however, fails to explain how this might be

possible. Noddings and Derrida both pointed out the difficulty of translating intimate caring

relations into a general moral and political theory, and Benhabib offers nothing to counter their

views. In fact, her theory highlights some of the dangers and difficulties of attempting to extend

an attitudinal approach to care to general moral and political relations. Stephen White writes that

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the focus on intense and intimate care can result in “communal suffocation” when applied to

general moral and political relations among strangers (White 1991, 104-105). Simone Chambers

further wonders whether careful attention to the history and needs of concrete others is not

contrary to the practicalities of politics. “Public policy is made about categories of people.

Categories and classifications, by definition, generalize and so do not reflect variation in

circumstances” (2000, 76). Because Benhabib fails to address these problems, her theory, like

Tronto’s, remains incomplete.

Nancy Fraser suggests that Benhabib’s political thought can be made more viable by

replacing her emphasis on the standpoint of the individual concrete other with the standpoint of the

collective concrete other (Fraser 1986). The standpoint of the collective concrete other is different

from the standpoint of the generalized other in that it focuses on the particular needs and concerns

of groups of individuals within cultural contexts rather than on ahistorical, disembodied

individuals. It is different from the standpoint of the individual concrete other because others “are

encountered less as unique individuals than as members of groups or collectivities with culturally

specific identities, solidarities and forms of life” (428). Fraser does not develop this theory of the

collective concrete other into a general or moral political theory, but one might look to advocates

of group and cultural rights such as Iris Marion Young or Will Kymlicka for guidance (Kymlicka

1995; Young 1990). A political theory organized around collective identities might include

protections for the autonomy of different groups, provisions for group representation, and positive

measures to ensure the preservation of cultural identities through resources for cultural and

linguistic education.

Attention to group rights certainly has an important place within a caring moral and political

theory, but as a caring moral and political theory, group rights approaches fail in two respects.

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First, they do not outline an overall caring political theory but focus narrowly on one aspect of

such a theory – attentiveness to groups and cultures. Second, group theories abandon care ethics’

characteristic concern with individual particularity and approach individuals as members of

groups. The individual is accorded certain rights and resources based upon his or her group

affiliation rather his or her particular uniqueness. The face-to-face relation is replaced with the

group-to-group relation, quite contrary to care theory. Selma Sevenhuijsen observes that such an

approach to care might be counter-productive insofar as it encourages individuals to subsume their

particular identities to those of the group and think in terms of ‘them’ and ‘us’ rather than seeing

the public realm as a forum of caring where “we can give shape to commonality on the basis of

diversity” (Sevenhuijsen 1998, 146). The point here is not criticize group rights theories per se,

but to highlight their inadequacy as possible frameworks for developing care theories. While these

theories may have an important place within caring moral and political theories, they cannot take

the place of them.

A number of other writers have further enumerated various aspects of a caring political

theory in defending the view that care ethics can be expanded beyond intimate private relations.

built upon the insights of Tronto, Benhabib and Fraser. Grace Clement, for example, contends that

the public/private dichotomy used to define the proper spheres of justice and care is misleading.

Caring activities underlie and pervade peaceful public behavior, and justice is important for

ensuring moral relations not only among public citizens but also private individuals (Clement

1996, 69-75). Clement likewise argues that the simple contrast between caring and rights is

invalid (Clement 1996, 80-83). Rights can be fruitfully conceived as rules specifying what people

can do in relation to one another, and as such, may be used to institutionalize the commitments of

care. “Indeed,” Rita Manning writes, “the blossoming of the language of positive rights seems

16
designed for this purpose” (Manning 1992, 154). Positive rights bring the priorities of care to the

public sphere by establishing general caring relations among all people. In a similar vein, she

suggests that social welfare programs, at their best, “exemplify the defining features of an ethic of

care” by providing for the specific needs of particular individuals and groups (Clement 1996, 90).

However, she adds that if these programs are to avoid the problem of paternalism, they must

“begin with a public discussion of needs” and promote “healthy relationships between caregivers

and care recipients” (Clement 1996, 104-105).

Julie White develops this last point in greater detail (White 2000; see also Sevenhuijsen

1998). When social welfare programs are conceived within the distributive paradigm, they almost

invariably manifest paternalistic relations. Some group of experts decides to allocate some set of

goods to individuals usually without “recognizing the particular identities of the actors involved”

(White 2000, 72). White contends that these programs are uncaring (and often ineffective) both

because they ignore the particular needs, circumstances and resources of those individuals whom

they are intended to serve, and also because they fail to treat these individuals with the respect due

to mature autonomous subjects – and hence often arouse suspicion and resistance. She thus argues

that a caring approach to social welfare programs must involve a democratic process of needs

interpretation in which the “needy” are given the opportunity to define their needs as well as

devise and participate in programs designed to meet these needs (White 2000, 136, 164-167,

passim).

Fiona Robinson takes this argument one step further in calling for a “critical ethics of

care.” Like orthodox versions of feminist care ethics, she begins from “an understanding of

morality characterized by sustained and focused moral attention arising out of the attachments and

connections between concrete persons” (Robinson 1999, 110). Yet she further adds that caregivers

17
also must look beyond the immediate needs of individuals to understand the ways in which these

needs have been created by social institutions and relationships.

What this means is not simply that the powerful must learn to ‘care about’ the

suffering and the destitute in what could possibly – although not necessarily –

become a paternalistic act which preserves existing power relations. It means that

those who are powerful have a responsibility to approach moral problems by

looking carefully at where, why, and how the structures of existing social and

personal relations have led to exclusion and marginalization, as well as at how

attachments may have degenerated or broken down so as to cause suffering

(Robinson 1999, 46).

The goal of a political theory of care, according to Robinson, should be “a restructuring of political

action in such a way that enduring relationships can flourish and agents can focus their moral

attention and, ultimately, act with the virtues of care – attentiveness, responsiveness, and

responsibility” (Robinson 1999, 154). Unfortunately, she offers few concrete suggestions for

achieving this goal beyond arguing, like White, that social policies should be shaped in “close

face-to-face interaction between organizations and their constituencies…rather than in the upper

echelons of remote and rule-bound bureaucracies” (Robinson 1999, 160).

Clement, White and Robinson highlight important elements of a political theory of care, but

their theories, too, remain incomplete. Clement leaves unanswered what sort of rights and policies

might follow from a care perspective. White provides valuable advice on implementing caring

social welfare programs, but does not articulate an overall theory. And Robinson’s theory

ultimately seems to depend more on an attitudinal change in relations among people than any

specific institutional reforms.

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 Care and the Natural Law

All the writers discussed in the previous section take important strides toward developing a

political theory of care, but none successfully outlines a broad institutional theory capable of

giving expression to the various aspects of caring relations. The question thus remains whether

care ethics is capable of generating a distinctive political theory, or as a number of theorists

suggest, represents only a supplement to liberal theories of justice. In this final section, I argue

that care ethics can be developed into a comprehensive political philosophy by building upon the

work of two of the most prominent contemporary natural law (or neo-Aristotelian) theorists:

Martha Nussbaum and John Finnis.6 At the same time, I suggest that care ethics provides an

immanent foundation for these theories that overcomes some of their central shortcomings. In this

regard, my purpose is emphatically not to subsume care ethics within natural law theory but rather

to integrate the two theories into a new caring theory of natural law.

Care ethics and natural law theory share a number of important similarities. Both emphasize

the inherently social nature of human beings. Both also view the most basic intimate relationships

between individuals, such as parent-child relationships and friendship, as the model for theories of

justice. Both likewise suggest that just relations among people require attention to the particular

needs, concerns and characteristics of concrete individuals, and as such, endorse practical and

situational moralities. Nonetheless, feminists have been hesitant to draw upon natural law theories

in formulating their care theories - and with good reason. Traditional natural law arguments rest

upon a natural teleology that translates biology into destiny and difference into hierarchy (Ruhl

2000; Traina 1999). Women in this scheme are usually said to be biologically destined for child-

bearing and child-rearing but deficient in most other capacities. Indeed, the two most famous

historical proponents of natural law arguments, Aristotle and St. Thomas Aquinas, both judged

19
women to be naturally inferior to men and assigned them to subordinate social roles (Traina 1999,

10-11, 85-86).

Both Nussbaum and Finnis, however, argue that natural law theory can be reformulated

apart from a natural teleology, and hence in a manner devoid of the hierarchical elements that have

made it unattractive in modern times.7 In fact, both have argued that traditional interpretations of

Aristotle and Aquinas are mistaken, since neither philosopher rested his natural law theory on

natural teleology in the manner usually assumed (Finnis 1980, 23-55; 1983, 1-25; 1998; Nussbaum

1995). Leaving aside the question of whether their interpretations of Aristotle and Aquinas are

correct, I focus here on the sufficiency of their own natural law theories.

Nussbaum’s theory is based upon the capabilities approach to human well-being pioneered

in economics by Amartya Sen and inspired by her own research on Aristotle.8 The basic idea of

this approach is that there are certain capabilities that are so central to what it means to be a human

being, or we might say so essential to human nature, that a human being cannot be deprived of the

opportunity to exercise them without at the same time being stripped of his or her humanity

(Nussbaum 1995, 94-95). There are two components to this definition of capabilities: “first, that

certain functions are particularly central in human life, in the sense that their presence or absence is

typically understood to be a mark of the presence or absence of human life; and second – this is

what Marx found in Aristotle – that there is something that it is to do these functions in a truly

human way, not a merely animal way” (Nussbaum 2000b, 71-72). It is not enough, in other words,

that human beings are able to exercise the essential human capabilities; they also must be able to

exercise them at a certain threshold level of human dignity. Nussbaum formulates a list of ten

central capabilities essential for human existence, but acknowledges the potential for future

additions (Nussbaum 2000b, 77-80). Her current list includes the ability to live to the end of a

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human life of normal length (clause 1); to enjoy bodily health and bodily integrity (clauses 2 and

3); to develop and freely use one’s senses, imagination, emotions and reason (clauses 4 and 5); to

exercise practical reason and form a personal conception of the good (clause 6); to engage freely in

various forms of social interaction with others (clause 7); to live with concern for animals and the

natural world (clause 8); to be able to laugh and play (clause 9); and to exercise control over one’s

political and economic life (clause 10).

Nussbaum’s capabilities approach rests upon an evaluative concept of the human being that

singles out certain capabilities as essential for human flourishing (Nussbaum 2000a, 119).

Nonetheless, she insists that her theory is a “freestanding moral idea” that does not rely upon “a

particular metaphysical or teleological idea” (Nussbaum 2000b, 83). “The body that labors,” she

writes, “is in a sense the same body all over the world, and its needs for food and nutrition and

health care are the same.” She further adds that the “search for competence and mastery and

control over the conditions of their lives” is a common desire among all human beings around the

world (Nussbaum 2000b, 22). Drawing on Rawls, she thus suggests that her list of capabilities

represents “a type of overlapping consensus on the part of people with otherwise very different

views of human life” (Nussbaum 2000b, 76). No matter what else people might believe about the

nature of the universe and human existence, all can agree that the basic capabilities are good.

Nussbaum proposes her capabilities approach as the basis for a political theory. The aim “is

to provide the philosophical underpinning for an account of basic constitutional principles that

should be respected and implemented by the governments of all nations, as a bare minimum of

what respect for human dignity requires” (Nussbaum 2000b, 5). She argues more specifically that

every government should provide their citizens with the opportunity to practice at least a threshold

level of each of the capabilities (Nussbaum 2000b, 12, 74-75). In this respect, she acknowledges

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that capabilities approach is not a complete theory of justice. It does not specify the requirements

of an ideally or fully just society, but instead outlines only a decent social minimum of public

justice. Related to this point, Nussbaum argues that the political goal is to provide every

individual with the opportunity to exercise his or her capabilities in a minimally human way rather

than to promote the actual functioning of all these capabilities (Nussbaum 2000b, 86-96).

Individuals are left to themselves to choose which capabilities to develop or neglect (religion over

sexual expression, play over work) according to their own conceptions of the good. Societies, in

turn, are left to determine within reason the threshold level of each of the capabilities based upon

their own unique circumstances and histories (Nussbaum 2000a, 126).

Nussbaum presents her capabilities approach as a universal theory of justice but emphasizes its

particular value for women, the poor and disempowered who often lack the opportunity to develop

their fundamental capabilities because of cultural and financial factors. Her theory thus should

assuage the doubts of feminists and others who regard all forms of natural law arguments with

suspicion. Nevertheless, her theory as currently formulated is not entirely successful. One

problem is that her theory rests upon, despite her claims to the contrary, a particular metaphysical

doctrine. It may not rest upon a particular religious or cultural dogma (although it does appear to

have much in common with western liberal ideals), but it does posit an ontology specifying what it

means to be really human, or what Nussbaum calls an evaluative concept of the human being. As

such, it suffers from the same weakness that afflicts all political theories that rest upon

metaphysical definitions of human nature: her theory will be persuasive to those individuals who

agree with her evaluative conception of human nature but will be unpersuasive to all those who

regard domination and conflict as the essence of human nature, or who posit an essential difference

in the nature of men and women. In short, by resting her argument upon a foundational claim

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about human nature, Nussbaum casts her lot with all those other philosophers (Hobbes, Locke,

Rousseau) whose theories are easily dismissed by individuals who hold different notions of what it

means to be a human being (male and/or female).

A second problem of Nussbaum’s theory relates to her account of moral obligation. Her

argument, in brief, runs as follows: there is a set of basic capabilities that we are all obliged to

respect and foster in all human beings since otherwise we fail to treat them in a manner worthy of

the dignity of a human being. Covertly slipped into this argument is the assertion that we have a

moral obligation to treat others in a manner worthy of the dignity of a human being. This

argument works in traditional natural law teachings because the moral obligation to respect and

develop others’ capabilities is commanded externally by God or nature. Nussbaum’s secular

rendering of this theory, however, has no such external moral support. Even accepting

Nussbaum’s account of human nature and her list of basic human capabilities, one thus still might

question: why am I obligated to respect others and provide them with the opportunity to develop

their capabilities, especially when it may involve some cost to me? Nussbaum leaps from the

claim that all human beings have certain capabilities to the claim that we have a moral duty to

foster the capabilities of others – via political institutions – without providing any argumentative

link between these two claims. She simply assumes our duty to respect and promote the human

dignity of others.

John Finnis takes a different tact in outlining his natural law theory, but ultimately falls into

some of the same problems.9 Like Nussbaum, he sets out to defend a natural law theory

independent of metaphysics and a philosophy of nature, but as distinct from her, he also avoids

substantive claims about human nature and builds his case for natural law strictly upon practical

reasoning (Finnis 1983, 12-17). Practical reasoning is “thinking about what (one ought) to do…in

23
deciding, in adopting commitments, in choosing and executing projects, and in general in acting”

(Finnis 1980, 12). When a person adopts the practical point of view, “we mean that he must assess

importance or significance in similarities and differences within his subject-matter by asking what

would be considered important or significant in that field by those whose concerns, decisions, and

activities create or constitute the subject-matter” (Finnis 1980, 12).

Based upon this definition of practical reasoning, Finnis proceeds to outline a set of basic

human goods, which he notes are not yet to be taken as moral goods. Basic goods are those goods

that are self-evident to anyone who attends carefully and honestly to the relevant human

possibilities (Finnis 1980, 64-73). They are the sort of goods that “intelligence makes evident and

thus available to us” as “aspects of human flourishing or fulfillment,” and cannot be denied

without involving oneself in absurdities or contradictions (Finnis 1983, 71-72). Finnis’s list of

basic goods is similar to Nussbaum’s, and includes life, knowledge, play, aesthetic experience,

sociability, practical reasonableness, and religion (Finnis 1980, 86-90). Like Nussbaum, he claims

that none of these goods are superior to the others but all are potentially equally important to a

good life (Finnis 1980, 92-95). Individuals thus may choose to emphasize some of these goods

over others in their own lives, which explains the diversity of opinions among human beings about

the good life, but no one who honestly considers the range of possibilities open to human beings

and the fullness of human flourishing will fail to recognize the whole range of basic goods as

potential goods for all human beings (Finnis 1980, 127).

The next step in Finnis’s argument involves providing an account of moral obligation to

explain why we should respect and foster the basic goods in others, and for this he appeals to the

requirements of practical reasonableness. A person who seriously engages in practical reasoning

will recognize the full potentiality of human well-being, and hence the fundamental importance of

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all the basic goods regardless of her own particular preferences. She will further acknowledge that

the basic goods are potentially desirable for all human beings and respect their right to pursue

them. Finnis calls this latter requirement the requirement of fundamental impartiality, explaining

that “intelligence and reasonableness can find no basis in the mere fact that A is A and is not B

(that I am I and am not you) for evaluating his (our) well-being differentially” (Finnis 1980, 107).

There is, he notes, some room within practical reasonableness for self-preference, since “my self-

determined and self-realizing participation in the basic goods” is part of realizing “the forms of

human good” (107). But once an individual has realized a modicum of her own basic goods, she is

required by practical reasonableness to favor and realize the fulfillment of basic human goods

wherever and in whomever they exist. Finnis proceeds to list a number of other requirements of

practical reasonableness including most importantly the duty to foster the common good of others,

but this duty stems from the independent good of sociability rather than from practical

reasonableness itself. The crux of Finnis’s moral argument from practical reasonableness hinges

on the claim that a person must respect and foster the fulfillment of basic goods in others because

practical reasonableness makes “no arbitrary preferences amongst persons” (106). This

requirement amounts to a restatement of the Golden Rule: “Do to (or for) others what you would

have them do to (or for) you” (107-108).

A number of writers have criticized Finnis’s reconstruction of natural law theory by

claiming that it collapses without the backing of the philosophy of nature and human nature that

supported classical natural law theory (Hittinger 1987; Lisska 1996, 139-165; McInerny 1991,

146-148; Veatch and Rautenberg 1991; Weinreb 1987). Lisska succinctly summarizes many of

these criticisms with the following: “Traditionally, the concept of human nature or human essence

has played a central role in determining the list of goods that are to be sought. Natural law

25
philosophers, Veatch in particular, ask if the dependence on human nature for the determination of

the goods is eliminated, then what is the ground for these ends or goods?” (Lisska 1996, 143).

Finnis, for example, excludes from his list of basic goods “selfishness, cruelty and the like” on the

grounds that they “simply do not stand to something self-evidently good as the urge to self-

preservation stands to the self-evident good of human life” (91). Yet, in Genealogy of Morals,

Nietzsche argues just the opposite – that among “more primitive men” the qualities of “selfishness,

cruelty and the like” were self-evidently good to human life, vigor and happiness (Nietzsche 1967,

67). The point here is not to endorse Nietzsche’s account of goods over Finnis’s but simply to note

that a certain conception of human flourishing and good already stands behind Finnis’s list of basic

goods. The basic goods he lists are not self-evident but more precisely the sorts of goods that most

individuals enmeshed within the Judeo-Christian tradition tend to endorse. An unstated theory of

human nature therefore appears to stand behind his enumeration of self-evident goods.

A second, related problem arises in Finnis’s list of the requirements of practical

reasonableness. Finnis suggests that practical reason makes no distinction among goods or

persons, but is oriented toward the fulfillment of as many goods as possible in whomever they may

exist. Yet he simply asserts this point with little argumentation. A more practical rendering of

practical reasonableness might hold that individuals need be concerned with other people’s goods

only insofar as they impinge upon or contribute to their own endeavors to realize the good life.

Why, after all, must we – practically speaking – concern ourselves with others’ pursuits of goods

that we may not even consider to be personally worthwhile? Finnis is able to derive a theory of

moral obligation from his account practical reason because he stipulates a theory of practical

reason that rests upon moral presuppositions. To be reasonable for him means to be moral.

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 This brief discussion of Nussbaum’s and Finnis’s natural law theories aptly demonstrate

the problems confronting the revival of contemporary natural law principles. Natural law theories

appear necessarily to rest upon some metaphysical notion of human nature that render them

parochial and easy to dismiss. An alternative, immanent ground for these theories can be found,

however, in the intersubjective accounts of human existence developed by care theorists,

Habermas and others. The reason contemporary natural law theories such as those of Nussbaum

and Finnis are problematic is because they approach morality from the perspective of the self-

contained, atomistic individual whose essence or practical reason points the way to moral

obligations. These problems can be avoided by reformulating their theories in terms of the

inherently intersubjective nature of human existence – an idea that is already implicit within but

not central to their theories. Finnis’s theory is especially helpful in formulating this immanent

ground for natural law theory.

Sociability holds a special place among Finnis’s list of basic goods as an independent basis

of moral relations among human beings. In fact, Finnis writes that “very many, perhaps even

most, of our concrete moral responsibilities, obligations, and duties have their basis in [the

requirements of sociability],” but nonetheless subsumes these requirements within his account of

practical reasonableness (Finnis 1980, 125). Finnis first argues that companionship and

cooperation are basic goods of human life that all people at least implicitly acknowledge. This

claim can of course be made stronger to assert that we all need companionship and cooperation for

the fulfillment of any of our other basic goods (Baier 1993; 1997). Without the nurture of parents,

children would never develop practical reasonableness or language – not to mention that most

would have difficulty surviving for very long (Code 1987). Throughout our lives, we likewise all

depend upon others for the fulfillment of basic goods and needs – at home, in the marketplace, in

27
business and politics, during sickness and old age (Baier 1997; MacIntyre 1999). Sociability is not

then just a basic good of human beings, but also a basic requirement. Without the companionship,

cooperation and care of others we would simply not be who we are, which is not to say that we

need these goods to be essentially human. Rather the claim is that we are who we are – capable of

using language and reason and making moral judgments and interacting peaceably with others –

because we have enjoyed and continue to enjoy the care and cooperation of others, and being who

we are, we cannot help but to regard the basic requirements of sociability as good.

Finnis suggests that the basic requirements of sociability are most fully revealed in the

relationship of friendship. Drawing upon Aristotle and Aquinas, he defines friendship in the

following terms:

In the fullest sense of ‘friendship,’ A is the friend of B when (i) A acts (or is

willing to act) for B’s well-being, for the sake of B, while (ii) B acts (or is willing

to act) for A’s well-being, for the sake of A, (iii) each of them knows of the

other’s activity and willingness and of the other’s knowledge, and (iv) each of

them co-ordinates (at least some of) his activity with the activity (including acts

of friendship) of the other so that there is a sharing, community, mutuality, and

reciprocity not only of knowledge but also of activity (and thus, normally, of

enjoyment and satisfaction) (142).

Finnis’s definition of friendship here closely resembles the definitions of friendship and care

discussed above. It includes attention to others’ needs, responsiveness to their opinions, and

support for their capabilities. Yet, whereas writers such as Derrida and Noddings sharply

differentiate friendship from general social relations, and many feminist theorists see care as only a

supplement to general relations of justice, Finnis argues that the mutuality and attentiveness of

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friendship manifest in ideal form the requirements of all social relations. At least in diluted form,

all our moral relations with others require some modicum of mutuality, reciprocity and care.

The main difference between friendship and justice is the degree of intimacy among

people. Friendship is a kind of particular justice in which individuals attend immediately to the

particular needs of other individuals, while justice is a kind of general friendship in which

individuals attend indirectly to the particular needs of other individuals (Aquinas II-II. 58 7-9). In

both cases, mutuality, reciprocity and care are essential. Without some concern for the well-being

of others, including their particular wants and needs, there is no community among human beings.

Jessica Benjamin and Axel Honneth have recently defended this point by showing that disregard

for others is a central source of social conflict and strife (Benjamin 1988; 1995; Honneth 1996).

“Built into the structure of human interaction there is a normative expectation that one will meet

with the recognition of others, or at least an implicit assumption that one will be given positive

consideration in the plans of others” (Honneth 1996, 44). When individuals feel their particular

needs and opinions are not being recognized or their opportunity to exercise their basic capabilities

is being denied, they experience humiliation and anger and often resort to covert or open acts of

rebellion to demand recognition, or in other words, they counter unsociable treatment with more of

the same.

In friendship, one knows the particular goals and needs of the other and hence can

discriminately provide for them. In society, however, the particular goals and needs of others are

often unknown. Hence Finnis suggests that sociability requires respect for and attention to all that

will promote the particular good of every person within the community and maintain a relationship

among them. Since there are a variety of basic goods among human beings and individuals may

choose to rank them differently, this means respecting and fostering the whole panoply of basic

29
human goods. “In the case of political community, the point or common good of such an all-round

association…[is] the securing of a whole ensemble of material and other conditions that tend to

favour the realization, by each individual in the community, of his or her personal development”

(154).

Based upon this analysis of friendship and sociability, we arrive at the conclusion

(peripheral to Finnis’s theory) that the basic good (or necessity) of sociability provides an

independent reason for respecting and fostering the basic goods of others, and is the source of

“very many, perhaps even most, of our concrete moral responsibilities, obligations, and duties”

(143, 125). The argument may be briefly summarized in the following way: we all require social

interaction with others for our development and well-being; the minimum requirements of

sociability are defined by the practices of caring; and the practices of caring demand that we

respect and foster all the basic goods of concrete individuals. It is not necessary, then, to resort to

a philosophy of nature, or a theory of human nature, or an account of practical reasonableness to

justify the principles of natural law. A foundation for natural law exists in the basic requirements

of sociability encapsulated in the practices of care. We should care for others by respecting and

fostering their basic capabilities because, as Annette Baier writes, “free riding on the generative

scheme” of care and sociability is “at best churlish, at worst manifestly unjust” (Baier 1997, 30);

and even more basically because, as Benjamin and Honneth suggest, we have all come to want and

expect some modicum of care from others based upon our earliest experiences of human

interaction with our caretakers. One certainly might choose to ignore or thwart the requirements of

sociability associated with caring, (as many individuals choose to do everyday), without fearing

the imminent collapse of society. Yet insofar as one desires to behave morally toward others and

live within a moral society, and considers living within a society that maintains order by means of

30
coercion and force as wrong, one ought to respect and follow these requirements. Care is a

hypothetical imperative for anyone who seeks moral relations with others as their end.

In reorienting natural law theory from a philosophy of nature to an ethics of care, certain

amendments are necessary. The precepts of traditional natural law theory that derive from biology

and teleology, including those associated with hierarchy and sexuality, are all shorn away. Natural

law becomes limited to the subset of moral dictates associated with the requirements of sociability.

Reformulated in this way, natural law theory provides an exemplary framework for formulating a

caring political theory.

As noted above, natural law theorists do not sharply distinguish between friendship and

sociability, but instead assert a seamless continuity between them. The basic rules of sociability,

or justice, are a form of generalized friendship where each renders to others his or her particular

due (Aquinas, II-II. 58 1; Finnis 1980, 161-2). Rendering to each his or her due in this framework

means respecting and fostering their ability to pursue at their own discretion the whole panoply of

basic goods, and entails the protection and enforcement of human rights – which Finnis claims

represent simply a shorthand way for talking about “‘what is just’ from a special angle: the

viewpoint of the ‘other(s)’ to whom something (including, inter alia, freedom of choice) is owed

or due” (Finnis 1980, 205). A caring political theory begins, then, with a set of basic human rights

designed to protect individuals’ pursuit of basic goods, including rights to life, liberty and the

pursuit of happiness. The list of rights includes provisions for bodily integrity and physical

security as well as protections for free speech, assembly and religion, since all of these rights are

necessary in order to provide particular individuals with the widest scope possible for achieving

their goods as they define them. Since the goal of a caring political theory is not merely to carve

out a sphere of individual freedom but also to provide them with the opportunity to pursue the

31
basic goods in a dignified human manner, it also includes rights to bodily health and economic

sustenance – both because these are basic needs of individuals and because the pursuit of basic

goods can be severely compromised by illness and economic deprivation (Shue, 1980). For

similar reasons, it includes the right to a broad quality education for all individuals so that they

may enjoy knowledge, play, aesthetic experience and other goods; rights to childcare so that

women in particular will not be restricted by cultural norms from pursuing their other basic goods;

and cultural rights such as bi-lingual education and culturally-based curricula. The point of these

rights, after all, is not to forge a common good but rather to meet the needs and foster the goods of

particular individuals as they describe them. Practical considerations are certainly relevant here.

There are limits to how much any society can spend on, say, health care or child care, and just as

individuals face practical limitations to their particular care for others, so, too, do societies. But

every effort can be made given the resources of a particular country to foster as many of these

basic rights as possible. Nussbaum’s position here is sensible. She argues that every society

should work toward the goal of ensuring a threshold level of the basic capabilities given their

current possibilities, and regard it as a tragedy if any individual is deprived of the opportunity to

develop any of his or her basic capabilities (Nussbaum 2000a, 126-127).

A caring natural law theory must also include the right to political participation so that

individuals and groups can gain public recognition and support for their needs, and attain

representation in the political body that will ultimately be responsible for determining how rights

to health care, economic sustenance, education, childcare and the like are actually delivered. The

decision-making powers of democracy must be tempered, however, by respect for the rights

promulgated above. If caring for others means to respect and foster the opportunity of each and

every individual to exercise all of his or her potential capabilities, then there can be no justification

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for restricting any of the capabilities individuals have thus far identified as important for their

flourishing – unless, of course, they impede other individuals’ abilities to do the same. Thus, even

if a society of atheists saw no use for the right to practice religion freely, they would nevertheless

be wrong to abolish this right since some individuals might at some time develop the desire to

exercise this capability. In short, the collectivism of democracy stands in tension with the

particularism of care, and must be guarded against.

Closely related to this point is Julie White’s argument about the need for a democratic

process of needs interpretation. White, it will be recalled, criticizes distributive theories of justice

both because they adopt a paternalistic one-size-fits-all approach to social justice and also because

they fail to show respect for the particular wants, needs and abilities of the individuals whom they

are intended to aid. One might add based upon the above arguments that they also often deprive

individuals of the ability to develop and exercise their own capabilities in forming their life plans,

forming associations and so forth, by simply imposing programs upon them. Indeed, Finnis argues

that a central principle of natural law theory is the principle of subsidiarity, or the idea that larger

associations should never assume functions that can be performed efficiently by smaller ones,

since individuals must practically partake in their pursuit of goods to fully enjoy them (Finnis

1980, 146-147; 1983, 38-39). Bringing together White’s and Finnis’s arguments, we may thus say

that a caring natural law theory recognizes the importance of shifting policy-making away from

national and state legislatures and bureaucratic organizations whenever possible to local

communities and grass-roots organizations where individuals may actively engage in democratic

processes of needs interpretation and delivery.

Finally, natural law theory provides a framework for understanding rights within

relationships rather than as abstract possessions of individuals. Many feminist theorists have

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called for such a reconceptualization of rights but few have actually described it. Since roughly

the sixteenth-century, rights have been understood as possessions of individuals rather than as

guidelines for relations between individuals. Mary Ann Glendon has dubbed this “the missing

dimension of sociality” in modern rights talk (1991, 76-108). When rights are understood as the

nearly absolute possessions of “the lone rights-bearer,” (to quote Glendon once again), they can

have rather uncaring and unsociable implications – as, for example, when neo-Nazi groups are

granted the right to march through a predominately Jewish neighborhood. A more caring approach

to rights can be found in the pre-modern natural law understanding of rights as guidelines for

relations between individuals within a community. According to this understanding, rights are not

something people have as absolute and inviolable possessions but an expression of what is

generally fair and sociable in relations between them. That is, rights are ‘what is right’ in a given

situation between two or more persons in relation to an action, possession or state of affairs (Finnis

1980, 205-210). Understood in this way, rights are legitimately subject to certain limitations of the

common good – meaning here not the greatest good of the greatest number or the overall good of

some abstract entity called the community, but the good associated with respecting and fostering

the realization by each individual of his or her own personal good within the limits of sociability.

The prime example of this approach to rights in the classical natural law tradition is the

right to private property. Natural law philosophers traditionally defend the right of individuals to

own private property, but not as an absolute individual right (Langholm 1992). Finnis writes, for

example, that “arguments for founding property rights on alleged ‘metaphysical’ relationship

between persons and things with which they have ‘mixed their labour,’ or to which craftsmen have

‘extended their personality,’ are foreign to Aquinas” (Finnis 1998, 189). Private property rights

exist according to natural law theorists as an expression of the duty of sociability. Taking

34
possession of something is legitimate only because and insofar as one “gets things ready for” and

“shares them with, other people” (Aquinas II-II.66.2). Property owners within this framework are

rightfully entitled to the first use and enjoyment of the fruits of their labor so that they may fulfill

their own goods and provide for those of their dependents – a conclusion that also follows from an

ethics of care. But they are obligated by the very nature of property rights to devote the remainder

of their produce to the use and enjoyment of others, and government is well within the scope of its

legitimate authority to make sure that they do so (Finnis 1980, 186-187). Other restrictions might

similarly be placed on the use of property insofar as it impinges upon the good of others, such as

regulations related to working conditions, wages and the environment. Roman law, for example,

speaks of limitations on the right of one individual to raise a building that will obstruct a

neighbor’s light (Finnis 1980, 209). Natural law theory thus re-introduces the “missing dimension

of sociality” into rights talk by defining rights as guidelines for caring relations among people

rather than an absolute metaphysical possession of individuals.

A care theorist such as Noddings might still object that formulating care ethics into a

institutional political theory undermines and distorts the practice of caring. One may counter this

objection with an assertion that cuts in just the opposite direction: caring demands that we work to

develop caring political institutions. One reason that individuals in a society such as our own do

not show more care for one another is precisely because the collective caring institutions are not in

place to encourage and coordinate our caring actions. It is not that most people do not recognize

the goodness of lending a helping hand to someone in need; yet they sometimes refrain from doing

so because they wonder what their small contribution of time or money can actually accomplish.

Caring political institutions can facilitate caring actions by providing individuals with viable

outlets for their care. Indeed, one would expect (and here the argument must remain speculative)

35
that a caring political system would encourage individuals to themselves become more caring.

Individuals would come to see their rights not as absolute possessions but as guides for

intersubjective relations with others. They would be encouraged through the principle of

subsidiarity to undertake caring activities within their communities. Most generally, the basic

protection and support accorded to each in pursuing his or her goods would be likely to promote a

more open and tolerant citizenry. Arguing for the rights of women in the eighteenth century, Mary

Wollstonecraft appealed to the value of care. “Would men but generously snap our chains, and be

content with rational fellowship instead of slavish obedience, they would find us more observant

daughters, more affectionate sisters, more faithful wives, more reasonable mothers – in a word,

better citizens. We should then love them with true affection, because we should learn to respect

ourselves” (1995, 240-241). A similar argument can be applied to all citizens today. The best way

to promote a more caring citizenry is to provide them with the opportunity to pursue their basic

goods and encourage them to support others in all their particularity and diversity to do the same.

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1
Jessica Benjamin supports this position from the perspective of psychoanalytic object relations theory
(Benjamin 1988; 1995).
2
Noddings indicates as much in responding to Card’s criticism (Noddings 1991).
3
A similar problem besets Nancy Hirschmann’s proposals for a more caring political theory based upon
participatory demoncracy in Rethinking Obligation: A Feminist Method for Political Theory, (Ithaca:
Cornell, 1992). Like Tronto, Hirschmann associates care ethics with participatory democracy but more
explicitly acknowledges the potential for participatory democracy to favor privileged groups and result in
oppressive policies (256). To safeguard against these dangers, she introduces various attitudinal elements
into her theory such as a commitment among citizens to recognition, trust, mutuality, reciprocity, inclusion
and conversation. Once again, however, she provides little indication for how such attitudes are to be
encouraged among the citizenry except to suggest that participatory democracy itself will foster their
development.
4
Stephen White has similarly attempted to integrate the work of care theorists and postmodern theorists
through a moral and political theory organized around what he calls a “lightness of care” (White 1991, 90-
94). White’s lightness of care involves the pairing of curiosity and care so that one attends to the needs of
others only after taking sufficient time to register the concrete details of their lives. White’s proposals
ultimately do not advance us much beyond the views of Tronto and Benhabib in thinking about how to
translate care ethics into an institutional political theory. Much like Tronto, he suggests that the
institutionalization of care depends upon a combination of more democratic institutions and a more
(lightly) caring citizenry. Yet he never explains how we might generate a more caring citizenry who would
exercise their democratic powers to eliminate injustice rather than simply enforce their majority will.
5
In her recent work, Benhabib does develop some institutional recommendations for a multicultural society
(Benhabib 2002).
6
Nussbaum’s and Finnis’s works share a number of similarities, but they draw some very different
conclusions from them. See, for example, there differing views in “Is Homosexual Conduct Wrong? A
Philosophical Exchange” in The New Republic, 209, 20 (November 15, 1993).
7
Traina similarly distances natural law theory from the hierarchical arguments of Aristotle and Aquinas,
but retains much of their natural teleology (Traina 1999).
8
For a discussion of the differences between Sen’s and Nussbaum’s approachs, see Nussbaum 2000b, 11-
15.
9
Finnis’s argument draws upon and is closely allied with the views of Germain Griesez whose central
works are listed in the works cited.

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