Care in and out of the Law
Caring relations involve sustained and/or intense personal attention that enhances the welfare of its recipient. Care becomes intimate care to the extent that at least one party to the relationship acquires information not widely available to third parties, and whose dissemination could somehow hurt the information-giver. Intimate care involves strenuous relational work: establishing, matching, repairing, and sometimes terminating boundaries, media, transactions, and intimate interpersonal relations. Intimate care sentimentalizes easily, for it calls up all the familiar images of altruism, community, and unstinting, noncommercial commitment. From there it is only a step to a notion of separate spheres of sentiment and rationality, thence to the hostile worlds supposition that contact between the personal and economic spheres corrupts both of them.
Our close look at actual caring relations has once again revealed the difficulty in any such argument: in fact, personal care incessantly mingles economic transactions with the provision of sustained and/ or intense life-enhancing personal attention. Looking meticulously at caring relations reveals that participants themselves do not contend over whether those relations should involve economic transactions. They contend instead over appropriate matches among relations, media, and transactions, taking great pains to distinguish relations providing similar practical forms of care but having significantly different implications for longer-term connections among the people involved. In negotiating the economic conditions ofcare, participants are also defining meaningful social relations.
In that regard, the situation does not change much when care goes to court. Legal practitioners consult their own grids of possible relations and deploy such doctrines as undue influence, loss of consortium, and implicit contract as they adjudicate disputes over the proper and improper provision of care. They sometimes invoke hostile worlds reasoning to defend a judgment. They also introduce such exotic dichotomies as gratuitous-commercial, confidential-ordinary, and professional-nonprofessional. But legal practitioners, too, conduct analyses and arguments concerning the proper matching of relations, media, and transactions.
Because the law governing caring relations necessarily changes, however slowly and erratically, in response to alterations in the practical provision of care, we can look at the courtroom as a sort of shadow theater in which the actors improvise stylized versions of everyday struggles using the distinctive idioms of their craft. But beware of the metaphor! What happens on the legal stage affects the actual provision of care in everyday life; relations of doctors and patients, lawyers and clients, nannies and children, immigrants and their employers, children and their parents, cohabiting couples, even caring spouses depend in part on what lawyers argue and judges or juries decide. We will witness a similar interweaving of law and everyday practice as we turn to intimate relations within households.