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Elizabeth Brake
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Hi Christian, Thanks for the comments. It hasn't come out in the discussion, but one aspect of my 'minimal marriage' proposal is that many of the financial supports attached to marriage (see 306-307 for a list of rights currently attached to marriage) would be phased out in an ideal liberal egalitarian society. I agree with Card et al. that it's unjust to make marital status the basis for an entitlement to health-care, for instance, or direct cash payouts. However, given that so many people now depend on such entitlements, a call for immediate abolition seems premature - for example, phasing out marital health-care entitlements would need to be done in tandem with ensuring universal health-care. So I am mainly in agreement with you about phasing out financial benefits (but the question of financing is complicated: drawing up a hospital visitation law, promulgating it, hiring clerks to file the papers, etc., will take some tax dollars). As far as the government defining what marriage is, I think it's useful to separate social, religious, and personal understandings of marriage (which the government can't define) from the rationale for marriage law - as you ask, what is the government trying to achieve with such law, and my answer is to support caring relationships (not to turn uncaring people into caring people!). In response to your final comments, I can only repeat some things said in the discussion above - in certain cases (draconian hospital visiting policies, international romances/friendships, relocation) the relationship-supporting rights would be essential to continuing the relationship - but not, as you say, to forming them in the first place.
Hi Clare, Thanks for your reply - your remarks on primary goods are helpful. I think you're right that a social basis isn't anything which makes it easier to realize the primary good. But still, I don't think the social basis must be 'essential' or necessary for realizing the primary good, as one can have self-respect or self-esteem even in a society where the social bases are not secured. Now that I think about it, the relation in the case of caring relationships is complicated. My thought was that normally, shared time and experiences are essential for developing and maintaining such a relationship. Thus, the social bases that I describe would entitle people to the normally essential means to the primary good, without the social bases (the rights) themselves being essential, except when the relationship is threatened (by immigration law, hospitalization, imprisonment, illness, relocation, etc.). Perhaps it's not right, then, to call these social bases for primary goods - another direction for further research! - but I think I can argue just as well that such legal frameworks, protective of primary goods, are subject to claims of justice. On immigration, how could liberty and neutrality ground an entitlement to have a person given special consideration? If we don't posit the importance of durable relationships with particular others, what would be the basis of an entitlement to have someone given special consideration if, say, the state decided to limit immigration to PhDs and MDs? Wouldn't liberty just ground a claim to non-interference or privacy (not to special treatment)? I might equally want the state to give special consideration to my importing something else whose importation was constrained for reasons of efficiency or public good (pharmaceuticals, perhaps, or certain wild animals), but surely liberty and neutrality wouldn't give me a claim that the state constrain its policy so that I can meet my preferences. Thanks again for your comments.
Clare, Thanks for the comments. Just to clarify, my post addressed to Rachel was only intended to answer part of her question - what I understood as a practical question she was raising with her example of the immigration petition, namely, why the state should designate relationship types at a general level rather than making evaluations on a case-by-case basis. Since in her example Rachel made reference to caring and to teams, as well as to petitions explaining the ‘connection’, I took it that she was still assuming that not any relationship could be the basis for a successful immigration petition; hence my response in that post. But I also understood Rachel to be raising the question which you raise and on which most of the discussion has really focused, that is, the question of why caring relationships, and in particular the reciprocal caring relationships I have described, should be considered primary goods, and I attempted to address this in my answer to Dan. My admittedly inconclusive response turns on the claims about the correlations between caring relationships and psychological or emotional qualities normally needed for the pursuit of conceptions of the good. One of the really helpful things to come out of the discussion so far (and the reason for inconclusiveness) is the need for further research in two areas. First, there are a number of specific questions about the psychological literature which the discussion has raised – how widespread the correlations between caring relationships or lack thereof and the relevant psychological costs and benefits are, and whether it matters if the relationships are reciprocal. Thinking over the discussion, I think that it may be less important for me to focus on the benefits of such relationships (and these are documented, the question is just what a survey of the literature will show about how widespread and extensive they are) than on the ‘normal’ costs of the lack of such relationships. Again, there is a documented correlation between lack of close relationships and depression, a state which would, I think, normally interfere with the ability to pursue one’s conception of the good. But I need to take a broader look at the psychological literature, with an eye to the extent of the correlations as well as to whether there are reasons to distrust the methodologies of the studies (were they singlist, for instance?). A second, and philosophical rather than psychological, issue which has emerged from this line of questioning is how to think about primary goods. If we take them to be goods normally (not universally) needed in the pursuit of conceptions of the good, how is ‘normally’ to be understood? This is an issue, as I argued in the paper, which any attempt to defend a Rawlsian theory is going to have to address. (Any suggestions from anyone on further reading would be welcomed, by the way!) To respond to your specific questions, then: With regard to immigration, I am assuming that the state does have reason to limit immigration in some way. I have made an (inconclusive, for the reasons just noted) case that caring relationships are grounds for an entitlement to special consideration, and hence that the state’s limits on immigration should be constrained in light of this. Of course, there might be other reasons grounding an entitlement to have someone given special consideration for immigration eligibility in the kinds of cases that you mention. But I wonder what reasons you might give for such an entitlement? With regard to leave entitlement, my background assumption was that different categories of leave recognize that some situations give rise to abnormal leave requirements, and that, along with illness and parenthood, bereavement and care-taking for a seriously ill friend or partner are (typically) sufficiently unusual and draining that they fall into the special leave category. But of course the deeper rationale for including bereavement and care-taking here depends, as my answer in the post addressed to Rachel did, on the point about primary goods. I’d be interested to hear what justice-based distinctions you would allow – I suspect our views might be (terminology aside) substantively closer to one another’s than to most of the views on the market. Finally, to your final question: no, of course not. Just as one can have self-respect or self-esteem without the social bases thereof, one can engage in caring relationships without the social bases. The claim is that the relationships are the primary goods, the goods normally needed for the pursuit of conceptions of the good, and that as such they can ground claims to their social bases. But the relationships can exist without the social bases.
In response to Ralph, continued: 2. First of all, as I said above and as I think the discussion in my article makes clear, I do think you offer a serious candidate for a neutral defense of marriage law. But I also think it is problematic, or, at least, inferior to my proposed rationale. The most important difference, in my view, between my rationale for marriage law and yours is this: on my view, marriage rights are a fundamental matter of justice, as the social bases of the primary good of caring relationships. This status makes such rights subject to claims of justice. On a desire or preference view like yours, they would not be subject to claims of justice. But on my view, a narrow set of rights – hospital and prison visiting rights, special consideration for immigration eligibility, bereavement and caretaking leave – are appropriate subjects for claims of justice. In the article, I didn’t have space to discuss your views regarding the social meaning of marriage, but part of the purpose of my proposal is, in your phrase, to ‘water down’ that social meaning precisely in order to improve the social standing of alternative relationship forms. As I say in the final section, by affirming difference the state can denormalize the ideal of heterosexual monogamy. Insofar as this ideal presents sexual, cohabiting relationships as more valuable or more worthy of state support than other caring relationships, it sustains social discrimination against those other relationship forms. Furthermore, as I say in the final section, to the extent that women are still made vulnerable by anticipation of and through gender-structured marriage (in Okin’s phrase), denormalizing such relationships would benefit women. (Although, as some theorists have argued, simply legalizing same-sex marriage will do a lot already to undermine gender-structured marriage.) In response to your first point, then, the main problem I identify is with the preference that only ‘traditional’ relationships be recognized as marriages in law, or the preference to enter a form of marriage which excludes non-traditional caring relationships. Satisfying this preference sustains unjust discrimination against other forms of caring relationships – unjust because it deprives those other relationships (such as friendships or urban tribes) of the protections and benefits accorded marriage. In response to your second point, my proposal would satisfy the desires of traditionalists to receive state support for their relationships, plus the desires of non-traditionalists. Your proposal would satisfy more desires of the traditionalists, but would not satisfy the desires of the non-traditionalists – hence of fewer people. It seems to me better to satisfy the desires of more people, especially given that the desires my proposal satisfies involve more concrete benefits (having rights to protect one’s relationships) than the additional desire yours would satisfy (having the social meaning of one’s relationship communicated). It’s also not clear to me how well marriage communicates a determinate social meaning anymore anyway – at least, I think it means very different things in different circles, so there’s already some confusion and thus a question as to whether it can carry out this role. (I mean, for example, to some groups in the U.S. the husband is still head of the household, and husband and wife have clearly defined gendered duties; to other groups it expresses a commitment, but not to gendered roles.)
Hi Ralph, First of all, let me say that your article is one of the best philosophical essays on marriage law I’ve read, in part because it delves into the question of why a liberal state should legislate marriage in the first place, and my criticisms of it are meant in the spirit of engagement with what is, in my view, one of the strongest defenses of liberal marriage law on offer – but one which I still think is problematic. Second of all, I apologize if my choice of words gave the impression that I thought you were “dismissive” of a social movement in which you have been active. 1. Let me explain what I mean to refer to when I cite a widespread call for recognition of alternative family forms. (Again, to be fair to you, my criticism of you for ignoring such calls is in one respect anachronistic, as the urban tribalist and quirkyalone publications postdate your article.) Paula Ettelbrick, in her classic 1989 article, “Since when is marriage a path to liberation?” criticizes same-sex marriage, and one of the objections she raises is that it would take away “the incentive to continue the progressive movement we have started that is pushing for societal and legal recognition of all kinds of family relationships.” She gives specific examples of a legal right allowing a partner to stay in a rent-controlled apartment after his partner’s death, and recognition of a group of two lesbians and two gay men as a family unit. She also calls for “the law to acknowledge that we may have more than one relationship worthy of legal protection.” (Unfortunately, I’m traveling and don’t have my copy of this article with me; but the original publication details in _Out/Look: National Gay and Lesbian Quarterly_ are cited in my article at fn. 52, and these quotations can be found in an anthology published on google books, _Families in the U.S._, ed. K. V. Hansen and A. I. Garey, Phil.: Temple Press, 1998, at 484.) Ettelbrick also suggests (483 in the google books version) a transformation of marriage from an institution regulating property and a narrow set of relationships to one recognizing many different kinds of relationships. I take it that your point is that Ettelbrick, and other critics of same-sex marriage who oppose the recognition of one ‘legitimate’ as opposed to a plurality of ‘legitimate’ family forms, are not calling for those alternative family forms to be recognized as marriages because marriage, as they understand it, is an unduly restrictive institution. However, Ettelbrick (and she speaks of a ‘movement’ to this end) is calling for legal rights to support and recognize relationships – just not rights which regulate and restrict in the way that marriage rights do. But let me try to unpack my criticism a little so it rests on a point with which I hope you will agree. This is that, in gay and lesbian writing on marriage, there has been division over same-sex marriage because of the worry it would lead to ‘assimilation’ of the plurality and diversity of relationships in that community to the ‘monogamy straightjacket’ (Card’s phrase) of ‘traditional’ marriage. One worry voiced by such theorists has been that the legal division between marrieds and unmarrieds underlies discrimination, both in the distribution of goods such as healthcare and in the respect and value accorded to the relationships. Such theorists advocate the social recognition of non-‘traditional’ relationships as of equal worth as ‘traditional’ relationships. (And some, like Ettelbrick, also call for legal recognition of the alternative relationships in the form of rights protecting the parties to them.) And they oppose same-sex marriage because they believe it will reinforce this invidious distinction. I hope you would agree that this view can be described as “widespread,” or as a familiar position in the lesbian and gay debate over same-sex marriage. Now, in your article, you ask: “The institution of marriage singles out just one sort of intimate relationship for special treatment; does this not discriminate unfairly against those who prefer relationships of other sorts?” (238) You then say that the three criteria which, in your view, constitute the core of marriage – “sexual intimacy, domestic and economic cooperation, and a voluntary mutual commitment to sustaining the relationship” – are quite flexible, as they can include “many different sorts of relationship,” namely polygamy and same-sex marriage. (238-239) You then say that the definition you have given does necessarily exclude some relationship forms, such as temporary marriage, marrying another man’s foot, or forced marriage, but that (as I quote you in my article) no one seriously wants to enter such marriages. In this context, my point is as follows: gay and lesbian theorists (and other like bell hooks, and, latterly, urban tribalists) have called for recognition (social, and in some cases, legal) of relationships which do not meet your three criteria, and they have argued for an affirmative answer to the question you raise on 238 – that singling out just this one sort of relationship for special treatment is unfair discrimination. It seems surprising, then, that you do not mention alternative relationship forms – like that described by Ettelbrick in which two lesbians and two gay men wish to form a family unit, or like hooks’ revolutionary parenting – which have been claimed to be the objects of unfair discrimination, in part due to the lack of (social) recognition which legal marriage reinforces. (This might be a place to add the tangential point that I don’t see why the fact that bell hooks is not a Rawlsian is relevant to whether or not she is calling for recognition of diverse relationships.) Because, in the passage I cite, you are discussing the recognition of different forms of relationship in the context of answering the question of whether a more restrictive marriage law is unfairly discriminatory, the fact that theorists have called for social recognition of different relationship forms (not, or not all, sexual, or involving domestic or economic cooperation) which your proposed law would not recognize does seem to me relevant! A response to your point 2 will follow!
Dan – Sorry, I think my reply to you crossed paths with your preemptive response in the ether! I’ve avoided appealing to the “nearly universally necessary” claim because in the discussion with Dave above I was prompted to reconsider what “nearly” means here, exactly (or “normally,” which Rawls also uses in describing the primary goods’ usefulness), and I’d like to think about that more. But in responding to Doug I did briefly raise the issue of numbers, to wit, my scepticism about how widespread such benefits are. As I said above, I’m relying on a survey article for the psychological claim, and I concede that defending this claim will require a more extensive and more expert (i.e. with the help of a specialist) look into this literature. As Rachel might point out in line with her comments above, some anti-singlism theorists have raised concerns about the methodology in some studies purporting to show the benefits of marriage (e.g., Bella DePaulo in _Singled Out_). The article I draw on includes friendships as well as marriages in its category of ‘close personal relationships’, but it doesn’t go into the reciprocity question; that response to Doug was, as I said, my armchair intuition. So this has been very helpful in terms of pointing out specific topics for further research! I still have questions about the teammate proposal. I’m not sure exactly how you mean to distinguish teams from groups, which could also be described as “a number of members working together to achieve a common goal.” It still seems to me that the relationships with other teammates are less likely to be psychologically important than the pursuit of a common goal and the phenomenon of belonging. (The question is the source of the alleged benefit.) The possible variability of ‘teams’ in size, structure, interactivity, duration, etc., makes me think that you’re not picking out one kind of relationship which is a, nearly universally necessary, means of developing and exercising one’s moral powers, but rather, that the good here (assuming there is one) is that of working with others towards a shared goal, in the course of which interpersonal relationships may sometimes be salient. In other words, it seems like there could be teams which yield the alleged benefits and in which interpersonal relationships are relatively unimportant (religious orders, teams with changing memberships, teams working remotely). (This is, I think, to take the response you suggest!) And it seems to me that such group membership is generally supported by freedom of association rights. But once again, this is precisely where more psychological data would be useful. Thanks for the challenging point – this is definitely a lot of food for thought!
Dan – Thanks for your questions. I say something on your second point in response to Doug (above). My intuition is that caring (attitudinally) for someone who cares for you has benefits which merely being cared for (attitudinally) would not. Examples of the latter, I suppose, might be cases of unrequited love or where one party is keen to be friends with someone who is completely indifferent, and it seems plausible to me that in such cases the benefits to the cared-for would be limited. It seems to me that where care is reciprocal, each would gain more because they care about (a third kind of care!) the other’s caring for them (to return to the example I used above in response to Doug, if my friend’s interest in my work benefits me because it matters to him, surely part of the reason his interest is beneficial is that he matters to me). On arranged marriage (and sorry for letting this point drop!): My proposal would seem to rule them out because there is no existing caring relationship. But I can see an argument for allowing some arranged marriages, although it depends on a view about minority cultural rights which I don’t endorse (I’m not sure I reject it, either, I just don’t have considered views). Here is the idea: for some cultural or religious groups, the only way to enter a significant caring relationship is through marriage. (Of course, it might be objected that members of such groups could form friendships instead, but set this aside for now.) So long as the marriage is intended to produce such a relationship, there might be a minority cultural right to establish a caring relationship in this way; this is just the way, in this culture, such relationships are created. Such a special right would be conditioned on the purpose of the marriage being to create such a relationship, and the fact that within such a culture the only way to establish such a relationship is through marriage. But on a practical note, couldn’t members of arranged marriages write to one another beforehand and thus begin to establish a caring relationship? Finally, on teammates – First of all, I want to be sure we are using “in their particularity” in the same way, because I would assume most team members do know one another in their particularity – i.e. colleagues in an academic department of 20 or members of a sports team of 20 people who play together for a school year would typically come to know one another in their particularity. Classmates in a class of 40 which meets only 3 hours a week, though, probably wouldn’t. Knowing another person in their particularity is a matter of degree, of course; but it simply means knowing the other’s characteristics, history, preferences, interests. I suspect that in many cases the kinds of beneficial interactions you have in mind are actually cases of friendships, where the friends could invoke minimal marriage rights. Group membership may be beneficial in a different way which does not depend on personal particularities, knowing one another, and caring for one another. But even if we established that group membership was a primary good (and I’m not conceding this, though I think it is an interesting idea!), the conclusion that minimal marriage rights should be more widely distributed does not follow. Those rights are designed to protect continuing caring relationships between particular others. Protecting groups would require very different rights, depending on the nature of the group – a philosophy colloquium, an academic department, a sports team, a church, an AA meeting, a workplace, a university. For many of these groups, rights to association and privacy would, as Cheshire suggests, suffice. But minimal marriage rights wouldn’t be relevant here, because – I assume – what matters as an entity is the group, not relationships between particular individuals within it, and the group may persist in the relevant sense while individuals exit and enter. If by hypothesis the beneficial relationships here are not caring relationships between particular others, then the rights designed to protect such relationships would not be needed to attain the benefits. Particular people would be (in this very limited context!) fungible.
Rachel – Thanks for your comments. One motivation for the minimal marriage proposal is the thought that recognizing a diversity of relationship types would help to combat hetero-normativity, including the assumption that ‘traditional’ marriage-like relationships are more valuable than friendships or more fluid arrangements, so in that sense I would hope that it could help fight singlism as well, where singlism involves discrimination against those not in ‘traditional’ marriage-like arrangements. A ‘single’ might be involved in many caring relationships (I take it that ‘single’ usually means ‘not married’ or ‘not partnered’, not ‘not involved in any relationships’?), and so could use minimal marriage rights. Of course, you might still raise your concern vis-a-vis the sub-category of singles who are relationship-free (like Dave’s rugged individualists, albeit with a different emphasis). I want to separate the practical question you raise from the deeper question, which you also raise, of which relationships we should recognize as primary goods. Practically, you raise the question of why we need to designate any category of relationships as ‘counting’ for legal purposes (“None of these needs to be tied to any relationship ...”). But we need some specification of which relationships count unless any relationship (an economic transaction, mail-order brides, a stranger seen once across a crowded room ...) could count. You describe an immigration petition which requires the applicant to demonstrate a connection – but what criteria regarding this connection will the immigration official use to make a decision? In fact, if the criterion is that it be a caring relationship, then your description sounds to me just like the implementation of a minimal marriage right! (This point about designation will also apply to relocation and spousal hiring policies.) With bereavement and care-taking leave, the thought is that an employee would need extra to the normal vacation entitlement (like sick leave – one might not use it, but it’s additional to the vacation entitlement everyone has), and so, again, there is a need to designate certain relationships as significant enough to merit such leave. Finally, visiting rights are on our cultural radar, I think, because of the horror stories of long-term same-sex couples who have been unable to visit each other in hospital. Because in certain circumstances hospitals limit visitation to ‘family members’, which is sometimes understood not to include friends or same-sex partners, the entitlement would ensure that significant friends or same-sex partners would have a right to visit in such cases. The good to be achieved by supporting such relationships is the benefit to the parties to them – first, the psychological and material benefits which support those parties in pursuit of other projects; second, their ability to develop and exercise their moral powers in those interactions (see 328-329). Your other question about which relationships should be recognized overlaps, as you point out, with Dan’s, which I will address in a separate post!
Hi Doug – First of all, let me clarify my previous comments. I was not saying that deriving significant psychological benefits from child-rearing or child-mentoring relationships was abnormal; what I said was that such relationships, if structured in law, should be structured through a parenting framework, not minimal marriage, for the reasons I gave above, to wit: coordinating rights of adult care-takers, mentors, or friends of children with parental privacy rights, establishing what legal responsibilities, if any, such adult friends or mentors should have, and screening such adults for child safety. The thought was that a parenting framework would not be limited to specifying parental rights and responsibilities but would also coordinate the rights and responsibilities of adult care-takers, friends, or mentors of children who are not parents. So yes, I am open to the possibility that such adults may have a structured legal role vis-a-vis children, but it would need to be enmeshed in a different legal framework. Nannies would clearly fall under such a framework, and it seems plausible that, as you suggest, such a framework would include bereavement leave. On pets: Let me clarify: I agree that it may be normal for pet owners to derive health benefits (physical as well as psychological) from pet ownership; my scepticism concerned the profundity and significance of such benefits, as well as the numbers of people whose most significant relationships are with pets as opposed to with other humans (the latter category including the ‘traditionally’ married or partnered, polygamists, friends, and urban tribalists). I haven’t done research on pets and mental health (other than, like you, seeing news reports on such studies). But to try to give an answer to what I think is your crucial question, you ask: “And isn't it the attitudinal caring and not the object of the caring (be it a friend, a sexual partner, a pet, a child, a member of one's urban tribe, etc.) that's essential to gaining the self-esteem and other mental health benefits associated with the relationship?” My armchair intuition here – and I think Dan pushes this as an objection, which I’ll try to answer in a separate post! – is that being cared for as a particular other is just as important as caring for another in producing such benefits. And here I mean attitudinal caring, not material care-taking. To take myself as an example, taking care of my cat does enhance my well-being, I am sure; so does taking care of my plants, for that matter. It is true that my cat recognizes me and responds to me positively as a source of food and warmth; but to all appearances he is completely unable to comprehend any of my interests, distinctive personal characteristics (except basic physical ones), preferences, etc. In other words, I don’t think he cares for me as a particular other. Further, there is a complete inability to communicate most of the things that are of interest or important to me, and I suspect this would be true for most humans (unless their interests were limited to hunting mice and birds, and eating cat food; even then, they couldn’t communicate thoughts on the topic). I suspect that what provides a lot of the psychological benefit of interpersonal relationships is not just caring for the other, but the enhancement of self-esteem one gets when the other appreciates one’s projects or characteristics, or simply cares about them (a friend might not understand the details of your latest article, but his willingness simply to listen to you talk about it, and the sense that it is important to him, might be beneficial). And (this next point is partly in response to Dan) I also suspect that it enhances the psychological benefits when one cares for the person who is caring for one – that is, it matters more when the person one cares for appreciates your abilities than (in most cases) when a total stranger does. There’s an additional cognitive dimension to continuing relationships – not just can humans normally have better knowledge of one another than pets can have of their humans, but over time in relationships people develop a detailed knowledge of the other which again, I suspect, helps to provide a beneficial narrative continuity and sense of being known. I realize this answer is going to leave me open to objections not just from the pet lobby, but from some disability theorists. But, in a nutshell, my answer to your question about reciprocity is that the significant reciprocity in reciprocal caring relationships between humans involves knowledge of one another and communication greater than that which can be had with pets, and that this reciprocal knowledge and communication accounts for some of the psychological benefits of such relationships. Again, though, this points to a need for further research in the psychological literature.
Jussi - I take your point that someone might just have brute bad luck in not meeting people, although this still seems to pose an epistemic problem. Also, remember that the 'minimal marriage' relationships include friendships so are less limited (I think) by the kind of 'natural features' you have in mind which might preclude relationships (actually, I'm not entirely sure what features you have in mind!). On wrongful death - the thought was that spouses would have a right to sue the person who caused the death, not compensation from the government (just to be clear). Since the primary good is the relationship with the particular other, that particular relationship is irreplaceable; and even though the widow/-er might find another relationship later, this doesn't compensate for the loss of the previous good. (Just as if someone torches your car, your right to sue them for compensation wouldn't be vitiated because you might later buy another car even without compensation.)
On the asymmetry issue – As I said above, I never wanted to deny that material care-taking is a primary good; indeed it seems easier to make the case that such care is a good (for the cared-for) than that attitudinal caring relationships are. This suggests – and I don’t develop this in the paper for reasons of space, but also because excellent work has been devoted to this in recent years – the need for material care-taking or dependency frameworks (including but not limited to parenting frameworks). Such frameworks would support (unpaid) material care-taking relationships of the kind Dave describes through minimal marriage rights but also, among other things, by specifying responsibilities and privacy rights and ensuring equal opportunity for care-takers (see, e.g., Anne Alstott’s No Exit, Martha Fineman’s The Autonomy Myth, Eva Kittay’s Love’s Labours). Such structures are, of course, of special interest to feminists because women still tend to do the lion’s share of such care-taking. Because such material care-taking, if asymmetrical, has significant costs for the care-taker, engaging in it looks less like a primary good for the care-taker; but the framework which protects the relationship for the benefit of the cared-for also has the effect of protecting it for the benefit of the care-taker who derives psychological benefits from it. As I suggest in the paper (328), one consideration in favor of minimal marriage rights is that they can provide continuity as relationships shift from non-dependence to dependence, as Dave describes in his latest example. So, in answer to Dave: (a) It’s a care-taking relationship; if she doesn’t recognize you, it seems defective qua caring relationship given the assumption that these require mutuality (this is, by the way, still a psychological assumption about the kinds of relationships which enhance mental health in ways that enable us to pursue projects). (b) No, but had you been minimally married before the rights could facilitate your designating the relationship as a material care-taking relationship (not that a prior minimal marriage is a condition for this). (c) I don’t see why, as you would have access to rights supporting your relationship, but in a context which also recognizes i) you now have certain obligations (and some corresponding privacy rights) due to the cared-for’s vulnerability and ii) you might have equal opportunity rights to compensation.
Iussi – Thanks for the comments. I second what Dave said, with a modification and some additions. On charm school - Legislators would have reason to create institutions promoting possession of non-distributable goods where society can influence that (e.g., public health messages – ‘smoking kills’). But there’s a difference between such public health initiatives and charm schools – there simply isn’t (to my knowledge, anyway!) the same kind of evidence regarding how to form a caring relationship as there is for, say, the health effects of smoking (interestingly, and I cite this in the article, one study of US marriage promotion policies finds that marital therapy leaves 25% of couples worse off and post-therapy divorce rates remain high – see fn. 44). Increasing people’s relationship fitness might not be well done by government programs. Having said that, one function of schools is socialization. If there were solid evidence regarding educational techniques likely to make kids better able to form relationships later in life, these might be implemented in schools just as hand-washing lessons are for public health reasons. On compensation – Two points. First, it’s going to be difficult to distinguish brute and option luck here. Say someone is so annoying, rude, or thoughtless that he drives away potential friends and lovers – should he be held responsible for that? If so, this isn’t brute luck. But (point two), there is one case where it is clearly brute luck that someone choosing a relationship is unable to pursue it – if the loved one dies. Here your comment prompts me to rethink the minimal marriage rights. Current marriage law typically includes a right for spouses to sue for compensation in the wrongful death of a spouse. I did not include this among the minimal marriage rights because, I thought, such a right illegitimately assumes financial dependence. But your comment makes me see that such a right should be included, since losing a spouse does not just involve losing the spouse’s financial support, but involves losing the good of the relationship. Thanks for the prompt!
Doug – Your comments pick up on a really important point; I don’t say anything to justify the ‘uptake’ requirement (i.e. that minimal marriage rights not be transferred unilaterally). The main thought is that such relationships are reciprocal (i.e. a friendship involves some mutuality, although it need not require a reciprocal exchange of rights for its support); ‘uptake’ then becomes a criterion to insure that the relationship meets this condition. But could a stalker derive benefits from an unreciprocated obsession? If the benefits depend on delusional beliefs (i.e., that the objection of his affection does respond) this doesn’t seem like a problematic case for me (as presumably his mental health problems diminish his autonomy); but perhaps there are non-delusional cases where someone secretly watches over and benefits another person and derives psychological benefits from doing so. I think I can limit the fallout from the latter case in a pragmatic way: since the minimal marriage rights mostly serve to support relationships in ways that won’t be relevant here, the only relevant one is bereavement leave. And since bereavement leave will presumably be capped for efficiency, it doesn’t seem to me wildly problematic if the ‘secret guardian’ wants to use his allotment should this person die. A second reason for the uptake requirement is that of costs to the recipient of a unilateral transfer. For some such transfers there might be no significant cost – for instance, if Judith Jarvis Thomson wants to transfer hospital visiting rights unilaterally to Henry Fonda, this doesn’t seem to burden him (he doesn’t have to use them). But in other cases unilateral transfers might cause administrative chaos – if, for example, Judith Jarvis Thomson were to designate Henry Fonda a Boston resident – or deprive the transferee of the opportunity to be the partner in a transfer which is numerically restricted – e.g., relocation expense eligibility might be capped for reasons of efficiency, and recipients tracked to prevent fraud, etc. (I am referring to Thomson’s example in her ‘Defense of Abortion’, in case anyone doesn’t know that article!) With children, there is another set of issues. Parental rights generally give rights to exclude others from interfering. So here, at the minimum, there would need to be coordination with parental rights and presumably, parental consent. And for child welfare, presumably we would want more rigorous screening of applicants. Finally, if an adult proposes a continuing relationship with a child, it might be desirable to have, at least, some minimal obligations imposed. (For instance, since continuity is important for children, we might want to burden the adult’s exit.) Because of children’s vulnerability, it seems better to place adult-child relationships under a parenting framework which coordinates and establishes responsibilities (an idea I describe briefly in the paper). But I take it the deeper question is why (non-parental) adult-child or adult-pet relationships should not be accorded the same status as adult-adult caring relationships. With pets, my suspicion is just that deriving profound self-esteem and significant mental health benefits from pet interaction is psychologically abnormal (not to deny that there may be some benefits), and (if this is correct), this returns us to the numbers question with which I finished the last post. More on asymmetry in response to Dave’s latest post.
Thanks for the many challenging and productive comments, and thanks especially to PEA Soup for hosting this discussion, and to Cheshire for her excellent precis. A few initial responses (more to follow! There’s a lot to respond to!): Cheshire raises two significant objections to my argument that the state should enact some marital rights – and not merely privatize marriage. Let me address her second point first. I must make the case that the support for caring relationships provided by minimal marriage cannot be attained through private contract nor, as Cheshire suggests, through rights to privacy and association. However, three kinds of minimal marriage rights are not covered under privacy and association rights: first, entitlements to special eligibility for immigration or legal residency (which has concrete implications for, e.g., in-state tuition and taxation); second, entitlements against employers for care-taking or bereavement leave (this would also apply to entitlements to spousal relocation and hiring, which now exist for some U.S. civil servants and members of the military); and, third, entitlements to hospital and prison visiting rights. None of these entitlements are protected by privacy or association rights, as I understand such rights. They require that the relevant institutions (state, workplaces, hospitals, prisons, etc.) extend special treatment to the parties to the relationship, not simply refrain from interfering in their pursuit thereof. But, as Cheshire asks, can a neutral case be made that the kinds of relationships (continuing, non-fungible) which need such rights for protection are really primary goods? Cheshire objects (as do Dave and, in a related point, Doug) that my case that caring relationships are primary goods is not itself neutral. First, one minor clarification: in the paper, I distinguish attitudinal caring from material care-taking, and focus on the first as the good supported by minimal marriage (thus the paid care-taker for an Alzheimer’s patient whom Dave describes, in his third point, would not fall under the minimal marriage framework if s/he is only engaged in material care-taking). Thus the claim is that the social bases of attitudinally caring (not material caretaking) relationships are primary goods (I do not mean to imply that the latter are not also candidates for primary goods or that the two do not often overlap; it is just that here I am focusing on the former). Janice is correct that I am hoping to ground this crucial point in a psychological claim – specifically, a claim about what humans normally need for the development and exercise of their moral powers and, secondly, for the mental health that underlies the pursuit of projects. Let me focus on the latter point, which I take to be the stronger (for the reasons Cheshire gives – I take her point that we can exercise our moral powers in other contexts). At fn. 87 I cite a survey of psychological studies showing connections between “close” interpersonal relationships and psychological benefits, although I concede that this crucial point would benefit from grounding in a wider, and more expert, survey of the relevant psychological literature. However, assuming (as the cited survey claims) that there are generally close connections between close interpersonal relationships and mental health benefits, I can start to sketch a response to Cheshire and Dave. If caring relationships are a (statistically normal) condition for mental health benefits which underpin our pursuits of conceptions of the good in the way that a healthy diet and exercise are a condition for physical health, then their occupying this role does not depend on the agent’s conception of the good. Presumably, for most of us, the factors which affect our mental health are not subject to our choice and do not alter with our conceptions of the good. Notice that I need not deny that for some people, impersonal relationships (i.e. internet chat rooms or philosophy colloquia) can play a similar role. As I point out in the paper, the fact that some people do not need a certain primary good to pursue their conception of the good is going to be a problem for any account of primary goods. A peripatetic monk who takes a vow of poverty does not need money. Dave presses the point by arguing that attributing primary good status to care might conflict with the rugged individualist’s conception of the good. But so, too, attributing primary good status to money will conflict with a communist’s conception of the good. However, Dave also raises the difficult question of numbers: if a large number of Americans (and not just a few outliers) identify themselves as rugged individualists, ideologically opposed to close relationships, can primary-good status for caring relationships really be neutral? This raises interesting empirical and philosophical questions. I am doubtful that there really are large numbers of people who choose to eschew caring relationships on such grounds. But the more interesting philosophical question is how close to 'universally useful' a good must be to be a primary good. I'm not sure what to say about the question of what percentage of citizenry must be able to use a good in the pursuit of their projects for that good to be eligible for primary-good status - i.e., how many 'outliers' a primary good can tolerate. Is there a principled way to determine this? The need to specify what, exactly, principles of justice are meant to secure and distribute is in tension with the incredible diversity of people's psychological needs and conceptions of the good here. I'll continue thinking about this. Thanks for all the helpful comments – I will respond to the others in a separate post.
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Feb 1, 2010