CARING AND THE LAW
by Jonathan Herring. Oxford: Hart Publishing, 2013. 374pp. Paper $60.00. ISBN: 978-1-84946-106-1.
Reviewed by Adelaide H. Villmoare, Department of Political Science, Vassar College. E-mail: villmoare [at] vassar.edu.
Jonathan Herring’s encyclopedic tome pushes relentlessly back against a liberal, market care model based on the ideal of autonomous individuals and economic well-being. He proposes an ethic of “relational caring” (p.21) where the interdependence between carer and the cared for receive full legal recognition and state support; “caring relationships” should be central to the constitution of many areas of law. Emphasizing the significance of caring relationships to our humanity, Herring believes that they should be “the starting point” for law and society (p.323). Throughout the book Herring’s adheres to this tenet and concludes: “Vulnerability and care need to be celebrated, not merely endured” (p.322).
Although the laws and cases Herring discusses are from the United Kingdom, the book should have a broad philosophical and legal appeal to those interested in social justice and issues of care in other countries. The book reads as if it represents a lifetime of investigation into Anglo-American literature and British court cases on care and the law. As Herring carefully acknowledges, there is now a substantial literature on the importance of care, some of which advocates, as Mona Harrington does, “an equality-respecting system” (2000, p.17). His approach is firmly rooted in the values of equality, respect, and mutuality, and it rejects perspectives that fail to respect these values and the centrality of caring relationships to social and legal justice. While the book focuses on law, it is informed by philosophical, political, and economic insights. It weaves principles of relational caring through an exploration of real life situations and legal policies and cases.
There is a meticulous discussion of various understandings of care from which Herring culls what he thinks should be the most fundamental “markers of care: Meeting needs. Respect. Responsibility. Relationality” (p.14). He employs expansive meanings of care and caring relationships in order to grasp all its dimensions fully, including the physical, the emotional, and the economic. Herring reaches well beyond an idea of care that attends primarily to carers or the cared for to bring forward mutual relationships between carer and cared. Not all caring relationships are good, but in a “good caring relationship there is no competition for benefits” (p.25). Rejecting the idea of balancing interests of people in caring relationship, he argues that “rather the question should be emphasising the responsibilities they owe to each other in the context of a mutually supporting relationship” (p.60).
The “social model” Herring supports turns the attention from individual to social and state responsibilities (p.27). Because we all need and give care and [*32] the quality of our lives and society depends on caring, we ought to attend to these larger moral obligations through the law and state policies. This is not to say that the individual carer or cared for disappears from view in this book but rather that the individual and her power function within a larger social context. With respect to law this perspective requires a shift away from one dedicated primarily to individual rights toward one of social justice, where rights have a role to play but where instrumental individual rights do not become the tool or yardstick for caring policies.
The book moves through many topics on “State Support of Care” (chapter 4), “Caring and Medical Law” (chapter 5), “Family Law and Caring” (chapter 6), “Caring and General Law” (chapter 7), and “Caring and Abuse” (chapter 8). Each lengthy chapter weaves an intricate web in order to demonstrate the myriad of ways through which law may be “used powerfully to encourage people to act in a way which will promote caring relationships” and to “control or require state intervention” (p.85). Herring contends, for example, that caring, not sex or biological parenthood, should provide the foundation of family law. His own distinctive contribution to family law speaks is rooted in this foundation: “I have developed an approach I have called ‘relationship-based welfare.’” In family law, he writes, “We cannot separate either the welfare or the rights of children from their parents” (p.204). And those relationships matter to many areas of law. While not opposed to all criminal prosecution of carers, Herring decries the use of criminal law to punish individual carers who have not received support from others in society and the state; we need to recognize our “wider social responsibilities” in any criminal law calculus (p.295). We are dependent on one another and, thus, share moral obligations of care that our criminal, civil, and family laws should fully institutionalize.
Indeed, Herring underscores the belief that care is central to who we are as human beings and that promotion of caring relationship is a human right where discrimination law must address those adversely affected in such relationships (p.258). Explicitly drawing on feminists’ insistence that women as primary caregivers should inform law and legal change, he calls for greater legal recognition of women’s relational positions in society. The idea is not to continue the glorification of the caring, selfless woman, which can often result in a woman’s being unfairly held accountable for failures of care. Rather, Herring calls for accepting the reality that care affects everyone, and responsibilities for cared and carer must spread widely and deeply through society and law.
Herring’s position is sweeping. There appears to be almost no aspect of law that should not be viewed from that of caring relationships. In criminal law, for instance, he cautions that it is too easy to see the abused as abuser, especially when there is a norm that women should be the accountable carers, even when abused. He writes: “In many of the cases where there have been prosecutions, the state authorities have been aware of the dangers to the child and have done nothing. For the state to fail in its own obligations and fail to protect children, to then prosecute mothers who fail to protect is hard to [*33] justify ...[Such prosecutions] divert attention away from the failures of public authorities to protect vulnerable adults and children” (p.294). Caring relationships involve everyone in society, and laws should embody broad understandings of caring responsibilities.
There is a repetitive quality to the text, which demonstrates Herring’s concern that he be clear and drive home the broad social and legal significance of a relational approach to care. A challenging text to read from beginning to end because of the dense details, people who are drawn to this issue should not be put off. Graduate students and practitioners alike would find its stories, philosophy, and analysis informative and moving. Those who specialize in one area of law may fruitfully dip into a single chapter because Herring carries his thesis explicitly and clearly through each section of the book. This is a carefully reasoned and widely researched book that makes a passionate plea for embracing the wider moral and social significance of a relational understanding of care where all of us should hold one another, society, and the state responsible for the human obligation of caring relationships.
Harrington, Mona. 2000. CARE AND EQUALITY. INVENTING A NEW FAMILY POLITICS. New York: Routledge.
Copyright 2014 by the author, Adelaide H. Villmoare.