Duty of Care and Ethic of Care: Irreconcilable Difference?

Duty of Care and Ethic
of Care: Irreconcilable
Difference?

Jenny Steel^*

Introduction: feminist perspectives and the
duty of care

The particular focus of this chapter is the legal category labelled ‘duty of care’. One might have expected the duty of care to have been the subject of some close feminist critique in its own right, given its centrality and its core features (including abstraction, boundary-drawing, an emphasis on rights and duties imbued with moral rhetoric, and a conflation of ‘care’ with being reasonably careful). ¹ To the extent that such critique has been lacking, ² it may be partly because feminist scholars, like others, are at risk of being attracted by the surface morality of the duty of care. Where the concern of feminist tort scholars has been to show the failure to recognise particular harms the prescription, without an accompanying critique of duty of care, is at least implicitly to extend the reach of duty. There is a risk that feminism, alone among critical approaches, will regard the duty of care in terms of ‘promise unfulfilled’, ³ rather than as more deeply suspect. It might be argued that feminist scholarship is legitimately uninterested in artificial classifications such as ‘tort’ or ‘negligence’ in any event, preferring to look across various dimensions of legal systems to expose law’s gendered practices as a whole.⁴ And yet, if key legal categories thereby remain unexplored, some of the broader potential of feminist legal theory will remain unrealised.

It has been suggested that to adopt a feminist perspective is ‘first and foremost, to bring a gendered perception of legal and social arrangements to bear upon a largely gender-neutral understanding of them’ (Conaghan 2000: 359, drawing upon Lacey 1998). This embraces gendered analyses of legal arrangements generally, rather than confining feminist critique to analysis of ‘gender issues’. Importantly, it also refers to a ‘largely gender-neutral understanding’ of social and legal arrangements. It is essential to be aware that the mainstream (ostensibly gender-neutral) understanding of legal arrangements is to be found not only in legal institutions, but also in the academy. Indeed, I find it strongly arguable that in recent years the academy has been narrower and more ‘mainstream’ in its understanding of the law of tort in particular – and especially the duty of care – than have legal institutions. The fact that the exercise in restriction of duty has come from the courts does not alter this, to the extent it is accompanied by greater complexity and a recognised need to look to more detailed relationship factors. Indeed greater restrictions upon the duty of care have been accompanied by a greater attention to the context of particular categories of case, and by a recognition that tort law does not provide the only, or necessarily the most appropriate, way of analysing relationships. The exercise in attention to categories of case inevitably incorporates a substantial degree of abstraction (the creation of categories), but it also allows a much greater role for contextual and outcome-based analysis than the universalising abstraction of a relationship consisting of the doing of harm by one party to another.⁵ Ultimately, perhaps this is not surprising. Academic law tends to prioritise the ordering of material and the discernment of general principles for the purpose initially of exposition, and I would argue increasingly with exclusionary intent,⁶ while legal institutions (courts, legislatures, legal advisors, and so on) have to grapple with the diversity of legal relationships – even if their rhetoric is sometimes designed to achieve the appearance of certainty (for a variety of reasons) rather than to acknowledge these tensions.⁷

Further, and returning to the broad encapsulation of a feminist perspective above, to the extent that any feminist perspective takes gender as the key to its reading of social and legal arrangements (and to its perception of what is missing in other presentations of them), a feminist perspective will be a distinctive form of critical perspective. The problem of course is in identifying what a ‘gendered’ perspective might legitimately and productively consist of, in the light of more recent waves of anti-essentialist feminist thinking.⁸

The next section of the chapter turns for inspiration to feminist contract scholarship. Some important features of feminist analysis of contract are identified, and the question is raised of whether these same features can be brought to bear on the law of negligence. In particular, feminist contract scholarship has drawn upon cultural feminism to intensify the impact of relational analysis of contracting. Using these insights, and moving to the next section, I reflect on the neglected role of the ‘legal’ in one of the key sources of cultural feminist legal theory, namely Carol Gilligan’s In a Different Voice (1982). In both these sections, I draw on the work of Mary Joe Frug, who applied her distinctive post-modern feminism to the law of contract and its elucidation in academic debate and student texts. More generally, Frug’s analysis of Gilligan’s work suggests a route to questioning not only the ‘ethic of care’, but also the ‘ethic of right’, without losing the potential of both. There is space for a potential relational perspective which does not fall into what Frug referred to as ‘crude Gilliganism’ (which might also be called crude essentialism) (1992: 38).

Finally, and armed with this, I turn to the duty of care itself. Clearly the duty of care purports to deal with interactions between parties, but is it ‘relational’ in any meaningful sense? Here I seek to place the resurgent rhetoric of individualism within a broader context. It is suggested that the position of the abstract and universal duty of care as a hallmark of the most mature legal thinking, as liberal theorists have tended to present it,⁹ is no more justified than the position of the ‘ethic of justice’ or ‘ethic of right’ as a hallmark of the most mature moral thinking, as the giants of developmental psychology appear to have thought it was. In fact, courts on the whole realise that responsibility is not the same as duty, and that responsibility in tort is not the full extent of responsibility in law or anywhere else. The difficulty arises with the persistent attraction of individualist rhetoric which appears to use the idea of rights and duties as definitive of responsibilities. Both the idea of maturity, and the idea of the respective roles of responsibilities and rights, are core to Gilligan’s work and would in my view be appropriately highlighted by a ‘progressive’ reading of Gilligan.¹⁰ Indeed, in the last chapter of her book, Gilligan argued that ‘To understand how the tension between responsibilities and rights sustains the dialectic of human development is to see the integrity of two disparate modes of experience that are in the end connected’ (1982: 174). There is a dialogue between ‘fairness’ (the abstract standard, giving rise to rights and duties) and ‘care’ (the connected standard, giving rise to more far-reaching responsibilities).¹¹

Learning from feminist contract scholarship

What are the key features of feminist contract scholarship which will assist the enquiry in this chapter?¹² One such feature is that much of it draws inspiration from other critical literature on contract and therefore takes an identifiable place in the critical legal family.¹³ As Lacey has argued, other critical theories too are concerned to dig beneath the surface of social and legal arrangements to illuminate their deeper logics.¹⁴ In contract theory, there is a general identification of surface rhetoric with the classical model of contracting, in which the will of the parties is key. Although it has been understood for many years that a shift to more ‘objective’ standards had the effect of injecting a considerable degree of fiction into the law of contract (suggesting that the courts were seeking the will of the parties when in fact they were imposing their own standards of reasonableness), the ‘freedom of contract’ model still provides much of the language of contract law.¹⁵ The objective ‘reasonableness’ standard in contract has much in common with tort’s objective standards and employs much of the same language. Although it was initially much clearer that the tort approach involved a standard imposed by the court, significant complexity is added through concepts such as ‘assumption of responsibility’ and, more generally, proximity in the law of tort. These tend to be attacked by mainstream tort scholars, missing their point I think, as lacking in clear content and predictability. These ideas are really just a way of structuring the idea of ‘reasonableness’ with a bit more specificity, pointing to relationship factors, which is to say to features of the relationship between parties other than the doing and suffering of harm.¹⁶ Equally important is a debate about the function of the law of contract, where a dichotomy is recognised between theorists who consider the role of the law of contract to be the facilitation, regulation, and good ordering of contract and exchange;¹⁷ and those who consider the point of the law of contract to be the correction of wrongs, particularly breaches of contract, for moral reasons.¹⁸ To the extent that the second approach has tended to involve a search for morality inherent to the idea of a contract, similar to the idea of an inner morality to tort law structured around the doing and suffering of harm, the first of these has amounted to a more contextual reading. ‘Relational’ contract theory is connected to this ‘contextual’ side of the divide.

Relational contract theory has proved attractive to feminist contract scholars (and vice versa) for a number of reasons.¹⁹ One of these is undoubtedly that its prescriptions are light on abstraction compared to standard models, descending to the level of particular parties and their relationships. It is also premised on the need for cooperation in achieving the parties’ goals; puts legal concepts in their place by suggesting that they may be more or less (ir)relevant to the parties’ practice; and emphasises the significance of a long-term relationship between parties in many contexts. This, of course, raises its own issues about power and vulnerability within the context of extended relationships of different sorts. In fact, tort claims may themselves arise in the interstices of such relationships. But, in short, relational contracting raises to the surface the relationships between actual parties, and their attempts to achieve their goals, rather than placing legal standards and remedies at the core, with a consequent focus on the morality of rule-breaking and the legal response to such breaches.

A much closer connection with the idea of ‘the legal sense’ as envisaged by developmental psychology could be attempted here, particularly the way in which the developmental psychology addressed by Gilligan had associated ‘legal’ sensibility with the rules applied to games typically played by boys, in which the rules are seen as ways of continuing the game provided they are applied in an evenhanded and impersonal way. Adjusting the rules to suit particular parties would undermine their even-handed nature. In the games played by girls, rules were more often adapted or set aside, and in the event of conflict a game may simply be abandoned – relationships were more important, but also harder to escape (1982: 9).²⁰ If empirical work on contracting is correct (Beale and Dugdale 1975),²¹ it seems that the issues emphasised by cultural feminists while not at the forefront of legal doctrine are much more in evidence in the social (economic) sphere that private law seeks to regulate. In particular, in the changed conditions of today, we might question the broad generalisation that Gilligan draws, that the ‘male’ standard observed ‘fits the requirement for modern corporate success’ (1982: 10). One lesson is that law needs to be responsive to the complexity of relationships; another is that the status of law (including legal rules and principles) in the practice of contracting may have been overestimated. Parties to contracting might take a much more pragmatic approach to legal rules and might prioritise the continuation of the relationship over the application of the rules; and indeed it is possible that law should and can develop to respond to this rather muted status for its principles. These insights do not of course provide the answer to all problems, and as Mulcahy and Brown have both argued they raise a whole host of new challenges for feminist analysis. The point is, however, that these challenges are inherently related to some of the core insights of feminism in respect of law and its intervention in human relationships. Feminist analysis thus becomes a potential source of constructive theory in respect of contracts, and a healthy exchange between feminist and other contextual approaches becomes possible.

Relational contract theory remains vibrant, but it is by no means new. Indeed, it is about as old as the ‘old big three’ feminist legal theories,²² and contributed one of its texts to an exercise in textual analysis by Frug (see also Brown 1996). Frug’s analysis as a whole is well worth revisiting not only because of its analysis of contract literature, but because of its application of the same method to a reading of Gilligan’s work on difference. Here I want to point out some of the nuances of this method. Post-modern feminism is listed by Dixon as one of the ‘new three’ feminisms, and has the potential to evade crude essentialism (‘crude Gilliganism’), whilst maintaining a gendered reading of a wide variety of narratives – an acceptance, so to speak, that ‘complex Gilliganism’ might illustrate some important human truths.²³ I would also point out that Frug’s analysis is as occupied with academic interpretation and exposition of contract law as with the law itself, and is interested in the rhetoric both of the law and its surrounding literature as well as (or as a route to finding clues as to) its deeper nature. ‘Feminine’ qualities in published work pressing a relational analysis of contracting were contrasted by Frug with classically ‘masculine’ language and qualities in an economic analysis – both, as it happened, written by men (Frug 1992: chapter 7, discussing Posner and Rosenfield 1977 and Hillman 1983).

Neither this, nor the measured critique of Gilligan explored in the next section, means that women disappear from Frug’s post-modern analysis of law and its literature. But some of the uses to which she puts the presence of women in a contract case book are both illuminating and important. At one point, having noted the lack of cases involving women for the most part (consistent with an ‘authoritarian neutrality’ of tone), Frug argued that the selection of four out of five cases with women claimants in the section of the case book dealing with standard term contracts, raising issues of their enforceability, led to a particular sense that standard term contracts are generally acceptable, and that the qualifications to their enforceability are something to do with an exceptional category of case, namely those where gender is in issue (Frug 1992: 98–9).²⁴ To similar effect is the prevalence of cases involving women in the section on equitable remedies, particularly given the authors’ clear view that the expectation measure of damages provides the dominant remedy. Frug’s reading of the place of women in the contract case book therefore suggested that women were associated with exceptions to general rules, those general rules being particularly associated with freedom of contract and the will of the parties. Where there were women there was legally relevant ‘context’, but this was the exception not the rule. And while this might (or might not) show us something about the way in which the law approaches women, it does show us something about the way that the case book writers approached the law. General lessons about the prioritising of one side of a potential dichotomy can be drawn from the representation of cases involving women. And here is the most general point: feminist readings can indicate that vibrant ideas within the law and legal discourse are relegated to the status of ‘exceptions’, because of the adoption of a standpoint from which one particular approach is regarded as the general rule. This is reflected in the progressive reading of Gilligan’s work.

I would agree with Frug that a reading of the rhetoric of the law can show us much about the underlying thought processes of the law. For example, there are numerous cases in the law of tort where judges have declared that some principle or other is not a ‘touchstone’ of liability (and no cases, to my knowledge, where any concept or principle has been described as being a touchstone of liability). This could be seen as a sort of nervous habit, using a metaphor because the precise language for translating reasons into legal principles are lacking,²⁵ and because of a reluctance (though a patchy one) to appeal directly to the alternative, which is a response to all the features of the particular relationship.

Arguably, the most overtly post-modern of authorities on the duty of care is Caparo Industries plc v Dickman [1990], given its frank admission that terms such as ‘foreseeability’ and ‘proximity’, previously thought to be determinative of the existence of a duty, were merely ‘labels’ used to present or explain the courts’ pragmatic judgments. Caparo has been quite badly reviewed in mainstream legal analyses, and rejected by the Australian courts (Sullivan v Moody [2001]) ²⁶, on the basis that it does not perform the role of a precise legal test. Nor, in fact, does it purport to do so, preferring to offer some structure to a multi-faceted exploration of the relationship between the parties.²⁷ It also, like quite a few negligence cases, involved a corporate claimant who tried to get cover from another commercial party for free, though this was dealt with more politely, less visibly, and much less rhetorically than the case of an injured individual trying to pass responsibility to others in cases such as Tomlinson v Congleton Borough Council [2003]. The parallels between these cases are not generally mentioned for they are thought to fall into different ‘categories’: personal injury, which the law is thought to prioritise (another academic exercise in prioritisation), and economic losses, which the law of tort is conventionally thought not to prioritise.²⁸ Indeed, the perception that economic losses are marginal may explain the greater freedom to use pragmatic, rather than moralistic, terminology: the boundary-drawing exercise is thought to require less justification. In Caparo, Lord Bridge actually declared that duties of care were arrived at ‘pragmatically’ and that all of the concepts applied in determining duty questions were really ‘convenient labels’ to apply to pragmatic decisions. The point is that there is no ‘touchstone’ of liability, because the point of a touchstone is to tell the difference between true or false gold. Since duty propositions are not true or false but subject to pragmatic determination by the court, there is no job for a touchstone to perform, and it is not surprising that all the judicial references are to ideas which are not touchstones. Analysis of the rhetorical strategies – direct, evasive; cautious, certain; abstract, situated – deployed in judgments can reveal underlying tensions and lead to consideration of their causes.

The ‘legal sense’ of In a Different Voice

One important contribution of the recent ‘feminist judgments project’ (Hunter, McGlynn and Rackley 2010) is that it demonstrates that legal judgment, like moral judgment, can be ordered so that underlying contextual features of the parties’ lives are recognised. Equally to the point, in ordering social relationships, the law in Piaget’s sense does not always take a central role. For example, Gilligan attributes to Lever (1976) a finding that girls, in particular, were inclined to abandon a game in the face of conflict, rather than to devise a series of rules for resolving disputes: ‘girls subordinated the continuation of the game to the continuation of relationship’ (Gilligan, 1982: 10). It is therefore not only Gilligan’s ‘ethic of care’ which strikes a chord with relational theory. It is also present in the work she set out to criticise and to supplement,²⁹ so that her chief contribution lies in challenging the received hierarchy, and revealing neglected narratives.³⁰ The same exercise can be applied to the nature of law as to moral development, or indeed to the law of contract or tort.

Duty of care through a relational perspective:
antithesis or not?

A more difficult question is whether relational theory can be applied successfully to the duty of care at all. There are two sides to this question. One is that the duty of care might be taken to be ‘relational’ enough as it stands. This, I will suggest, is not true, and certainly not true of the received understanding of Lord Atkin’s version. The other is to question whether the duty of care can be anything other than the law of duties between strangers – the antithesis of relational responsibility in the feminist sense. Once again there is much of interest in Gilligan’s review of her predecessors’ work. Drawing on the work of Janet Lever (1976), Gilligan reports a contrast in what boys and girls learn from their play: