Caring Responsibilities in European Law and Policy

Who Cares?

Eugenia Caracciolo di Torella, Annick Masselot

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781134455447
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

This book explores the emerging engagement of EU law with care and carers.

The book argues that the regulation of care by the EU is crucial because

it enables the development of a broad range of policies. It contributes to the

sustainability of society and ultimately it enables individuals to flourish. Yet, to

date, the EU approach to regulating the caring relationship remains piecemeal

and lacks the underpinning of a cohesive strategy. Against this backdrop, this

book argues that the EU can and must take leadership in this area by setting

principles and standards in accordance with the values of the treaty, in particular

gender equality, human dignity, solidarity and well-being. The book

further makes a case for a stronger protection for carers, who should not only

be protected against discrimination, but should also be supported, valued and

put in a position to make choices and lead full lives. In order to achieve this,

a proactive approach to rebalancing the relationship between paid and unpaid

work is necessary. Ultimately, the book puts forward a series of legal and policy

recommendations for a holistic approach to care in the EU.

1 Conceptualising care

Introduction

Care is not only an inevitable part of life;¹ it is essential to the development and upkeep of society. The law should protect care because this is, in itself, enough to trigger specific rights. Rights indeed exist “[in a moral theory or legal system] whenever the protection or advancement of some interest … is recognised … as a reason for imposing duties or obligations on others”.² However, for several reasons further explored in the course of this book, the law of the European Union (EU) still struggles to fully address the caring relationship, both in terms of policy and legislation. Although EU law might provide some rights for certain employees with specific caring responsibilities,³ such rights, at the moment, are not formulated as a cohesive strategy, nor are they underpinned by a comprehensive theoretical framework. To develop a set of rights in this area is important, as it will enhance the visibility of care as well as empower and protect carers. At the same time, however, rights cannot adequately capture the caring relationship. Rights are traditionally structured around individualistic notions of rationality, personal autonomy⁴ and the free market where “what is most essential … is the individual’s capacity to choose his or her own roles and identities, and to rethink those choices.”⁵ Presently, in this reality, what is relevant is the “well-dressed businessman with his right to autonomy”⁶ and freedom to choose to enter a contract. By contrast, the ‘exhausted mother … with little autonomy [or] freedom’⁷ remains outside the law. Thus, a system based purely on rights, or rather on rights as they are currently structured, fails to accommodate today’s social reality where care is a prominent feature of everybody’s lives – whether exhausted mothers or well-dressed businessmen. In sum, we are faced with a paradox: whilst a rights-based approach would offer a concrete way to make care more visible and protect carers from discrimination, rights are inadequate as they fail to grapple with the very essence of care.

1 Mary Daly, “Care as Good for Social Policy” (2002) 21 Journal of Social Policy 251. See the discussion in “Setting the Scene: ‘Everyone cares. Everyone is Cared for’”.

2 Jeremy Waldron, Theories of Rights (OUP 1984).

3 See further the discussion in Chapter 4.

4 Joseph Raz, The Morality of Freedom (OUP 1986).

5 Helen Reece, Divorcing Responsibilities (Hart Publishing 2003) 13.

6 Jonathan Herring, Caring and the Law (Hart Publishing 2013) 1.

7 Ibid.

This chapter reviews the current theoretical approach that underpins the EU normative framework in this area. It seeks an alternative “way of ‘doing’ law and justice”,⁸ in order to develop a legal system that acknowledges, promotes and protects the caring relationship and carers because ultimately the law should “exist for people [and] for the sake of people”.⁹ For this purpose, this chapter is organised into two sections. The first section (Rights and care) looks at the traditional legal approach used to frame this area, namely rights. This section identifies the difficulties inherent in using rights to address care, not least the fact that rights are firmly entrenched in the public/private sphere dichotomy. These difficulties, which become even more evident at EU level, are clearly identified and critiqued through the feminist debate. The second section (Beyond the equality/difference debate: an alternative perspective on rights) explores how the difficulties inherent in rights could be mitigated using the dual carer/earner model.¹⁰ We argue that, in order to be effective, this model needs to be interpreted in light of the capability approach. Originally devised by Amartya Sen¹¹ and further developed by Martha Nussbaum,¹² the capability approach is particularly apt in this area because it offers the theoretical space to understand the divide between what individual carers aspire to and “their opportunities to be and do”.¹³ Yet, although valuable, this approach has some drawbacks. In particular, it still presupposes an element of choice, often lacking in the caring relationship.¹⁴ Against this background, this section moves further to identify concepts that could help the development of a specific rights-based strategy in this area. Drawing on Carol Gilligan’s work, it explores the potential of the ethic of care to act as a “lens” to interpret the relevant rights.

Rights and care

It is commonplace to say that the law speaks “the language of rights”.¹⁵ The starting point will thus be to define what a right is and to establish how a rights-based approach has been used in the context of the caring relationship.

8 Nuno Ferreira, “The Human Face of the European Union. Are EU Law and Policy Humane Enough? An Introduction” in Nuno Ferreira and Dora Kostakopoulou (eds), The Human Face of the European Union: Are EU Law and Policy Humane Enough? (CUP 2016).

9 Ibid.

10 This is also called the “adult carer model”.

11 Amartya Sen, Inequality Re-examined (Harvard University Press 1992). See also further discussion in Chapter 1.

12 Martha Nussbaum, Sex and Social Justice (OUP 1999); Martha Nussbaum, “Human Capabilities, Female Human Beings” in Martha Nussbaum and Jonathan Glover (eds), Women, Culture and Development: A Study of Human Capabilities (OUP 1995); Martha Nussbaum, Women and Human Development: The Capabilities Approach, vol 3 (CUP 2001); Martha Nussbaum, “Capabilities and Social Justice” (2002) 4 Intl Studies Rev 123.

13 Barbara Hobson (ed), Worklife Balance. The Agency and Capabilities Gap (OUP 2014).

14 See the discussion in “Setting the Scene: ‘Everyone Cares. Everyone is Cared for’”.

15 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978); Jeremy Waldron, Theories of Rights (OUP 1984); Herbert Hart, Legal Rights (OUP 1982).

Rights are important because “they recognise the respect their bearers are entitled to. To accord a right is to respect dignity: conversely, to deny rights is to cast doubt on humanity and integrity”. Rights are an affirmation of the Kantian basic principle that “we are ends in ourselves, and not means to the ends of others”.¹⁶ Thus, in essence, rights confer a specific claim onto somebody; they have the power to transform issues that would normally be addressed within the context of welfare and justice into precise entitlements.¹⁷ Furthermore, rights can impose duties that, in turn, the law can enforce. In other words, rights can provide the tools to create a framework where the caring relationship can flourish.¹⁸ They can be general, namely when they are addressed to any person, such as, for example, the right to life, or specific, when they are linked to one or a group of individuals.¹⁹ In the context of this book, whilst the generic right is the right to care, the specific rights are those that address the needs of individual carers. Thus, the benefits of rights cannot be underestimated. Their potential ability “to provide protection to the individual against state intervention has been illustrated repeatedly in liberal legal theory and can barely be disputed”.²⁰

Not all rights have the same status: they can be either legal or moral.²¹ Although in practice the two often coincide, this might not always be the case. Legal and moral rights are not necessarily connected, and the protection that they are offered will differ accordingly. A legal right attracts the protection of the legal system; by contrast, this will not be the case for a moral right. Shazia Choudry and Jonathan Herring give the example of a child who has a moral right to be loved by his or her parents. Importantly, this right cannot be protected and enforced by legislation.²² A right to care is certainly (at least) a moral right. But can it also be a legal right?

A difficulty in using the traditional understanding of legal rights in the context of care is that they are very much based on the concept of personal autonomy. This implies that people have the freedom to make decisions as to how they want to live their life,²³ or as Joseph Raz puts it, they “can make their own lives”.²⁴ Thus, personal autonomy implies the ability to make choices that the recipient is then able/free to exercise or ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword
• Acknowledgements
• Setting the scene: “Everyone cares. Everyone is cared for”
• 1. Conceptualising care
• 2. The emerging EU childcare strategy
• 3. The EU and long-term care
• 4. The EU and carers
• 5. Reframing the debate
• Final remarks
• Table of legislation
• Table of case law
• Bibliography
• Index