Ethic of Rights in View of the Ethic of Care

Before I turn to the ethic of care and its relation to children, it is necessary to discuss the concerns which have been raised within the rights ethic. Some scholars have identified problems associated with the rights ethic (Held, 2006) which has also been termed by others the justice ethic (Gillian, 1982) or in some places the two terms have been used interchangeably. In this study the discussion of the different scholars is used in the same way the two terms are used while acknowleding their difference. Justice ethic I contend is broader than rights ethic and that is why even with the various arguments below, justice as an ethic is said to be about rights and rules.This will mean that rights are a way justice can be exercised. I would argue further therefore, justice is more than rights although in the discussions here under, the rights ethic is associated more with justice ethic in relation to moral theories, which seem to narrow justice into rights and rules. The distinction between the ethic of care and the ethic of justice as earlier noted is traced from the work of Carol Gilligan (1982) ‘In A Different Voice: Psychological Theory and Women’s Development.’

Tronto (1993:79) identifies three important distinctive features raised in Gilligan’s work. First is the difference in moral concepts in that the ethic of care is about responsibility and relationship while the ethic of justice is about rules and rights. Secondly the ethic of care is about real situations and not formal or abstract; and thirdly, care is articulated as an activity and not a set of principles. Gilligan’s work has been debated and used in different academic fields (Tronto, 1993) and the rights/care dichotomy has continued to be evaluated. Held (2006:1) argues that the

ethic of rights focuses on individual rights and fair solution which lacks critical attributes of the ethic of care, which are the attentive trust and response to needs and cultivation of a caring relationship.

Following the same lines as Gilligan, Curtin (1991 cited by Cockburn, 2005) identifies six flaws within the rights approach: adherence to universalism, ethics is not applied to context, persons are conceptualised as autonomous and not relational, experience is not considered in relation to searching for objectivity and rationality and the rights concepts are grounded upon ‘disembodied rationalism.’ The liberal rights-based approaches are said to assume universalism against the pluralist ethic (Cockburn, 2005:75). This assumption is seen as the outlook of a male, white, western, middle class, but is utilised in some, if not all, situations. Universalism does not consider the world’s differences and the diverse nature of humanity. There are debates, mostly by feminists, which identify the different notions associated with universalism such as ‘the self’ as linked conceptually by the ‘generalised other’ elaborated by John Rawls (1999) (see Benhabib1992). The main argument in this area is the idea that by the use of the ‘generalised other’ the self is detached from the daily experiences of relationships with others during social life (Benhabib (1992:159). Arising from this argument Benhabib argues for a ‘concrete other’ which assumes the individual uniqueness of each moral person. Such an individual, she further argues, has a personal history, character, needs and even limitations and is found within the framework of relationship with others (Benhabib, 1992:159). The ‘generalised other’ conceptions, on the other hand, stay aloof to the daily moral interactions known to the ‘concrete’ others since they place them within the less valued private circles. The outcome of this situation is said to be the invisibility of women and children’s activities within the universal moral theory (Cockburn,

2005:76). Benhabib’s ‘concrete other’ rather than ‘generalised other’ provides an avenue to locate children within political theory (Cockburn, 2005:76) as well as in the legal theory. The ‘general other’, as conceptualised within universalism lacks the view of an engagement of ‘the self’ in what is going on in the life of children, women and men on a daily basis.

The second criticism in regard to the ethic of rights is the abstractness in its application which is neutral when it comes to context. Contextualisation has been identified as central to childhood studies in recognition that children, as part of society, live their lives within networks of relationships (Cockburn, 2005:77). The abstract nature of the rights might fail to take into account the vital roles children play in the networks and thus the need to consider their place within the networks when assessing their rights, needs or protection. It is argued that the rights ethic has a perception of children in terms of their future rather than their present (Lee, 2001) cited by Cockburn, 2005:77). Cockburn argues that contextualisation:

Will recognise the life world of children in the present and pertain to specific questions about children’s immediate rights, needs, and identities based within the context of their social networks.

Context is further seen as the basis for rules and decisions rather than rules being brought into the social context.

The third issue is the adversarial nature of the rights ethic. This is premised on the idea that rights are claims which a person has against another person and hence the

connection of having rights and personhood. The ethic of care as propagated by feminists dismisses the adversarial and autonomous standing of rights discourse. Lorraine Code (1995) draws out propositions of the ethic of care which does not agree with the adversarial stand point. On the one hand is the assumption related to how people treat others in recognition that they are different and taking into account how other people understand the world. On the other hand is the assumption which takes into account people’s experiences as opposed to the objective and rational ethical judgments.

The above propositions portray the abstractness in the rights discourse which overlooks experiences of people in society and their relationships with one another (Cockburn, 2005:78). In this case the ingredients which make care a feature of the human condition are not recognised within the abstract autonomy, thus losing sight of the reality that ‘all people are vulnerable, dependent and finite and that all have to find ways of dealing with this in our daily existence and in the values which guide our individual and collective behaviour’ (Sevenhuijsen, 1998:28).

The fourth issue is ‘embodiment’, which is related to the ‘concrete other’, but the argument in this area is the idea that the rights ethic prioritises the rational while ignoring the body and embodiment. This has led to the situation in which the autonomous individual is disembodied and masked from the reality of human vulnerability (Cockburn, 2005:78). Embodiment traced through history and science shows its relationship with the rise of the ‘naturalised body’ which does not see all people as ‘individuals’. Scientific practice for example portrays children ‘as ontologically and irreducibly different from adults’ (Cockburn, 2005:79). The use of terms such ‘development’, ‘schooling’, ‘paediatrics are said to portray children’s

bodies as becoming and hence differentiating adult and children bodies. The rights ethic is therefore seen as not taking embodiment on board and hence might not be a proper avenue in an ethic of care, especially when appreciating children’s perspectives.