The fascinating 'Care as a constitutional value' by Sandra Fredman in (2024) International Journal of Constitutional Law comments
The centrality of care to society is increasingly recognized as an issue of public concern. Although painfully brought into focus during the COVID-19 pandemic, the public importance of care was already receiving attention well before then. Important scholarly work by feminists, labor lawyers, feminist economists, and scholars of relational theory and care ethics has been augmented by developments in international policy and human rights law. In 2015, the world committed itself to the ambitious fifteen-year program “Transforming Our World” through the Sustainable Development Goals (SDGs). SDG 5 promises to recognize and value unpaid care and domestic work, including through the provision of public services and infrastructure, social protection policies, and the promotion of shared responsibility within the household. This is reflected too in the international and regional human rights arena. In its 2019 Centenary Declaration for the Future of Work, the International Labour Organization (ILO) emphasized the importance of the care economy for transformative gender equality, proposing sustained public investment in childcare and long-term care services both to boost the economy and achieve decent work opportunities for women. In 2023, Argentina submitted a request to the Inter-American Court of Human Rights asking the Court to determine, inter alia, the nature and scope of the right to care and its interaction with other rights. To this has been added the voice of the World Bank, which describes “the care economy [as] essential in daily life and a driver of economic growth, human capital development, and employment.” Investments in the care sector, it claims, could produce up to 299 million jobs globally by 2035. Nor does the need for greater attention to care relate solely to its implications for women. It is of central importance to young children and their rights to quality early childhood care and education; to people with disabilities; to older people; and to paid and unpaid care workers. Care work has also been recognized as green and sustainable.
This raises the question of whether care should be regarded as a constitutional issue, and what that might entail. Traditionally, care was regarded as taking place within the private sphere, beyond the quintessentially public nature of constitutions. Characterized as emotional, intimate, and relational, care appeared an unlikely candidate for constitutional ordering. However, feminists have long noted that the notion of a rigid public–private divide is itself a patriarchal construct, permitting the perpetuation of unequal power structures in the private sphere. Nor is it possible to contain these inequalities within the home. Patriarchal assumptions that care should be performed by women unpaid in the home have spilled over into paid caring work, dragging down the value of paid caring work and increasing the risk of precarity for women entering the paid workforce.
Acknowledging that care traverses the putative public–private divide does not in itself mean that care should be a constitutional matter. Care could remain an issue for the family or the free market, as has been witnessed by the increasing commodification of care. Or it could be left to ordinary legislation, such as labor law and social security. However, experience reveals the weaknesses in all these approaches, across many jurisdictions. Labor laws have been unable to grapple with unpaid caregiving work, either in itself, or in reducing women’s options in the workforce and depressing their pay. Nor have labor rights reached paid care workers in precarious work. Social protection, where available, is frequently premised on a stigmatic view of recipients, whether caregivers or cared-for, and is increasingly conditional on undertaking formal work. As was starkly apparent during the Covid pandemic, caregiving, whether paid or unpaid, remains a fertile arena for exploitation, both for carers and the cared-for, especially for the most marginalized: migrant, racialized, gendered, poor, and working-class people. Such exploitation is only heightened when care is regarded as a matter for the market. Yet care is at the core of our society.
This article explores the potential of regarding care as a constitutional issue, rather than addressing it solely within the legislative or regulatory space or leaving it to the family or the private market. I suggest that care is best regarded as a constitutional value, reflecting the reality of our interdependence, and functioning as a crucial counterweight to the fiction that individual freedom can be constituted independently of our social relations. Care as a constitutional value should be regarded as complementing express constitutional commitments to freedom, dignity, and equality, recognizing that relationships are constitutive of the self, and that individuals are partly constituted by society. This is in step with developments towards positive constitutionalism, challenging the premise that the sole function of constitutions is to protect individuals from state interference through largely negative entitlements. Just as freedom, dignity, and equality perform important expressive functions in a constitution, so the recognition of care, implicit or explicit, signals the foundational importance of care to everyone throughout our lives and to society’s ability to reproduce itself. Together with this expressive function, care as a constitutional value should permeate the interpretation of constitutional and other provisions, and enhance accountability for care-related decisions.
It is not suggested that a constitutional recognition of care will, without more, guarantee that governments, courts, and societies will give care its appropriate value, any more than constitutional commitments to freedom, dignity, and equality, on their own, have brought greater freedom, dignity, or equality to society. Other changes might be needed in the political and institutional structures which embed a constitution. Such issues, which might include changes in judicial appointments, and a broader commitment by the state to redistributive policies, are beyond the scope of this article. Nor is it suggested that a constitution should set out a detailed set of rules in relation to care. Nevertheless, care as a constitutional value can have traction by infusing the interpretation of the constitution, legislation, and policy, requiring the state to pay attention to the value of care in its decision-making. Care as a constitutional value can also act as a catalyst for political activism, legitimating grassroots campaigns for better recognition of care.
This article is normative, examining how constitutions should be shaped to encompass the foundational value of care in society. At the same time, the article is grounded in existing constitutions. Its exploratory and normative propositions are tested by drawing on constitutions and constitutional jurisprudence in four jurisdictions. Two are from the global south: India and South Africa; and two from the global north: Canada and the United Kingdom. I choose these because their legal systems are primarily in English; they share a colonial past and therefore a somewhat similar common law judicial reasoning process; they regularly cite each other’s jurisprudence; but they are at different developmental stages, have different judicial approaches and differing ways of socializing care, and are therefore interesting to compare. The United Kingdom differs in not having an entrenched, written constitution but gives statutory recognition to the European Convention on Human Rights (ECHR) and has previously incorporated EU law. I also refer briefly to the proposed constitutional changes relating to care in the Irish constitution, rejected in a referendum in 2024. The article does not, however, provide comprehensive case studies of these jurisdictions. Instead, it draws on constitutional texts and jurisprudence in these systems to test the concepts explored here.
Section 2 examines the challenges of care in the context of the cluster of interlocking care relationships. Section 3 demonstrates the gaps and silos in existing regulatory structures, focusing on labor law and welfare law, as well as the increasing role of the private market. This sets the scene for the central question of what added value a constitutional perspective on care might bring. Section 4 considers the potential role of constitutions, arguing that care is best regarded as a constitutional value, and examining how this might be reconciled with judicial theories of interpretation and principles of the separation of powers. In Section 5, I imagine how care as a constitutional value might reshape judgments and legal principles in a selection of challenging cases in the four jurisdictions.
