Caring and the Law by Jonathan Herring (review)

In Caring and the Law,¹ Oxford University law professor Jonathan Herring argues that caring should become a central concern of law. Pointing out that the crucial human activity of caring has for too long been ignored or even undermined by law, Herring sets out to develop a framework, grounded in an ethic of care, by which law can function to promote and support caring and, in particular, the work of unpaid caregivers. Although Caring and the Law focuses primarily on law and legislation in the United Kingdom, many of the ideas and arguments in this book can be transposed to other contexts. The strength of Herring’s work is the meticulous detail and comprehensiveness of his research as well as his attempts to articulate what law, grounded in an ethic of care, might actually look like across a wide number of substantive areas (family law, health law, and so on).

However, in its attempt to comprehensively address how an ethic of care might transform law generally, the book sometimes loses sight of the uneven social and economic terrain upon which caring relationships play out in our world and of the ways that dominant political and economic systems continually perpetuate the marginalization of those who are most vulnerable. Thus, it becomes clear as the book progresses that grounding law in an ethic of care will mean little without broader social justice. Finally, although Herring’s general critique of law and his call for an emphasis on caring generally resonate with feminist critiques and approaches, his approach occasionally leads to some proposals that are problematic from a feminist perspective.

Herring sets out his critique of law at the outset. Law, he argues, has systematically failed to recognize care and caring relationships. Instead, law’s obsession with individual rights and the privileging by law of the “able, autonomous and unattached adult”² has led to a focus on the freedom and autonomy of individuals and a failure to recognize or value the work of carers and the importance of caring relationships. Herring explains that his project is to explore how an ethic of care might inform a “radical rethinking” of law.³ For Herring, this rethinking involves a recognition that people exist within relationships and that caring is “ingrained into the existence of every person.”⁴ Law’s role, therefore, should be to “uphold and maintain [networks of] caring relationships.”⁵ Herring argues that “[f]ar from legal rights being designed to promote freedom, legal rights should be designed to enable us to undertake our caring responsibilities.”⁶ He states that it is within caring relationships that individuals find their sense of “value and meaning”⁷ and that, therefore, promoting caring relationships promotes the interests and autonomy of individuals. Herring imagines a society where care is not devalued or the cause of disadvantage but, rather, protected and facilitated through law and broader social policies.

Feminists may be wary of a call for law and social policy to focus on enabling us to undertake “caring responsibilities”⁸ and exhorting us to find our autonomy or “freedom”⁹ within these roles as carers. After all, women have historically disproportionately undertaken caring responsibilities, and this has been associated with women’s economic and social inequality. Herring acknowledges that in our current context, the burdens of care are disproportionately borne by women and that the work of care tends to be highly devalued in society. He notes therefore that an ethic of care approach demands “a fair share of the burdens of caring across society.”¹⁰ This, he notes, means that the state has an obligation to provide the “broader social support necessary to ensure that caring can take place effectively and that mitigates the disadvantages that flow from care.”¹¹ Herring devotes an expansive chapter to the issue of the role of the state in providing support for care. He notes that the precise way the state arranges welfare, tax, and educational policies can all function to re-value caring work and encourage certain caring practices.

Interestingly, Herring’s preference...