Human Rights

Modern international human rights theories are hardly monolithic. The wide variety of human rights theories is often divided roughly into the ‘moral’ and ‘political’ conceptions of human rights. They often disagree about what grounds the theory, be it human dignity or human agency, as well as who counts as an agent, and how each theory defines agency.Footnote ³ Yet, two important points of commonality are consistent across the different discourses that exist today.

The first shared feature is that “human rights are meant to provide certain shared standards—or at least a shared framework—for evaluating and criticizing various practices of political societies in relation to their members” (Ivison Reference Ivison2008, 200–1). This does not mean that the list of standards themselves must be agreed upon. Rather, human rights discourses agree in general that there should be a list of standards that can be used to evaluate how a political institution treats its members. The agreement to have evaluative standards means that there can be open discussion about what kinds of standards are appropriate, and it also entails an expectation of future judgment: we judge or evaluate societies based upon a set of human rights standards. Different theories utilize different sets of rights. Some philosophers, such as Thomas Pogge, allow for more expansive sets of human rights. Using the Universal Declaration of Human Rights (UDHR) to demonstrate how political, economic, and even social rights can have international scope (Pogge Reference Pogge2008, 183).

Conversely, some argue for a narrow set of human rights standards, such as James Griffin and Michael Ignatieff, who express concern about human rights ‘inflation.’ Human agency can be understood, according to one interpretation, as being able to make choices that are not unduly constrained, that are well informed, and that can be acted upon. Therefore, if human agency, so understood, is our very basis of being a person, then human rights must protect our ability to make and act upon our choices (Griffin Reference Griffin2008, 34). For Pogge, however, autonomy is slightly different. It is understood as being able to develop and live out one's own idea of what it means to flourish, where flourishing is when a human being considers their life is good or worthwhile in a broad sense (Pogge Reference Pogge2008, 33). To respect a person's autonomy is to “accept his measure of his flourishing as well as his way of arriving at this measure,” and “having one's own directives: a purpose of one's own” (Pogge Reference Pogge2008, 37). The point is that although there might be different explanations for what agency is, human rights theories that privilege the importance of agency aim at largely the same goal: grounding rights in the idea that human choice matters, especially regarding one's own life. Because our choices about our own lives are important, either for moral or political reasons (or both), human rights are meant to serve as protections for the choices we make about our lives. Human rights can then be viewed as the standards by which we determine what is necessary to live a human life.

The second feature common to mainstream human rights theories is that human rights comprise a set of enforceable claims. Human rights, as a set of standards, mean very little unless they have political and legal purchase. This means that with rights come duties or obligations, a kind of authority held against individuals or institutions. For a right to have authority, it must be able to be held against someone or something; in other words, it is the obverse of a duty. The requirement of specificity, and the degree to which any claim is binding, varies. In the case of international human rights, the question of who are the duty holders is contentious. Thomas Pogge provides one answer, stating that:

Human rights claims are primarily standards that should be enacted through one's own national government. However, Pogge extends this further, making the salient point that any political organization is dependent upon the attitudes of its constituent members, all of whom play an active role in determining how any national government sustains its commitment to the standards of human rights. It is not enough to say that institutions have a duty to stop harming people, but that those citizens who support those institutions must work to change how their institutions function within the international sphere. For example, while the U.S. government should cease its gross violations of human rights in Guantanamo Bay prison, it is also incumbent upon U.S. citizens to take action and inform their representatives that they do not support the continued operation of the prison. Although this case is less nuanced than the complex interactions that serve to create and perpetuate poverty, the point remains that although vast political and economic institutions have power, they are nevertheless made up of individuals who can and should reiterate their support for the enforcement of human rights. A failure of institutions to live up to the obligations placed upon them by human rights claims reflect not only on the institutions themselves but also on the individuals that support those institutions. According to some human rights theories, then, when our institutions fail, we have failed.

Another way to view this second common feature of human rights is to understand that because human rights do not make sense without some measure of enforcement or legal-like framework, some institutions must or should exist for human rights as a practice to function. Beitz underscores this point when he notes that “human rights doctrine is not static” (Beitz Reference Beitz2009, 31). It is changing and changeable because the institutions and legal-like frameworks that are required to enforce human rights can shift depending on the human rights needs of the populace, and depending on how we engage with human rights as a practice of enforceable claims. Human rights, for Beitz, is a thing that we do, something that we engage in and shape as we talk about it and try to enforce it throughout the world. It does not exist as a set of static standards alone, but as a practice where we make special kinds of claims upon others that we expect to be enforced.

In general, then, human rights are universal in the sense that they aim to protect the same thing, typically human agency or the ability to act on the choices one makes about one's own life and the equality of all human beings, that is, the equal right of all persons to be able to make choices about their own lives. The framework of human rights can be understood as a set of nonstatic standards. The disagreement about what standards to include is less important than our agreement that there should be a set of standards in the first place. Lastly, these standards can be used as enforceable claims, creating a duty or obligation upon others (institutions and individuals). The details vary, but these basic notions remain the same across a plethora of human rights theories.

Care Ethics and the Care Critique of Human Rights

The critical ethics of care is first and foremost a tool of assessment, a method of discovery to uncover what underlying forces have contributed to the production and perpetuation of gross injustices such as extreme poverty, systemic violence, and gender and racial discrimination. Further, one of the more valuable aspects of the critical ethics of care is that it is a theory that, while aiming for transformation, firmly works to deal with the world as it is today. By this, I mean that it does not rely on any kind of ideal theory to frame it, nor does it seek to create a sharp break between the present and some transformed future. The kind of transformation that care ethics provides is more reform than revolution, and it is based on new understandings and suggests ways that caring practices themselves can enable transformation (Conradi Reference Conradi2015, 118). Care ethics can be used by different institutions with different aims but can still be firm in the use of care as a critical standard and a basis for moral judgment and can reinforce the importance of caring practices in our lives.

In contrast to human rights discourses, the critical lens of care does not of itself create universal norms or rules. When judging between different moral claims, because the ethics of care does not have a standard set of prescriptions as such, there may be an open question as to how to judge “the relative validity of those moral claims” (Robinson Reference Robinson1999, 40). Moral judgments formed in specific contexts might not always be intelligible in a different context. This critique is correct to a degree. Unlike human rights discourses, care ethics does not seek to create a set of overarching normative rules. Instead, critical care ethics focuses on how institutions, norms, and relations of power shape our relationships, either enabling good forms of care or perpetuating harmful ones; care ethics is used as a lens to assess relations. It does not entail the claim that we care equally about all persons in any kind of universal sense, but that “[care] relies on existing and potential relations among moral agents and the capacity of those agents to learn how to listen and respond to the needs of others” (Robinson Reference Robinson1999, 40). The point is not to claim that a person's caring responsibilities are an injunction to care; instead, it is assumed that we already do care and that we do so in a multidirectional web of relations (Pettersen Reference Pettersen2012, 376). The critical lens of care allows us to understand how patterns of power (international, national, economic, and socio-cultural) shape and alter the caring relationships we have with particular others.

The normative content of care ethics is rooted in the values and practices of care. Care is meant to serve as a critical, universal standard for moral judgments, and importantly, care is a standard of judgment that is much more flexible than human rights standards. Moral judgment, for the ethics of care, is “based on the possibility of making evident, in particular contexts, what makes [relationships] healthy and nurturing, or oppressive and exploitative” (Robinson Reference Robinson2006, 15). The normative question is not solely aimed at how I fulfil my caring responsibilities, but what aspects of our political and social lives impact (for good or ill) the kinds of relationships and responsibilities I have. Certainly, this formulation is more ambiguous than theories of human rights, but its very ambiguity allows for a greater flexibility in applying care ethics to concrete situations as they arise. The habit of looking for rule-based answers, like those produced by international human rights discourses, is not always beneficial nor is it always necessarily going to produce the answer that will solve the problem. It is possible that such answers can obscure the deep complexity that underlies many problems, such as poverty, and especially the poverty that women face. This leads to the second point, namely, that the benefit of applying care ethics to public policy is that it will illuminate moral contexts that human rights often overlook or do not even ‘see’ and thus cannot address, such as complex cases of difference and exclusion, both of which have profound impacts on other moral contexts such as gender and violence. The lens of care, then, can be used to expand the limits of moral and political thought (Benhabib Reference Benhabib1992, 164). Third, although there is no claim to a specific set of universalizable moral rules, care ethics rests on a universal idea: people do live within webs of relationships, and require a bare minimum of care to at least survive. Because people already live in relationships with particular others, care ethics can have broad scope across political, economic, and cultural boundaries. Thus, a critical ethics of care is another tool, in addition to human rights discourses, by which to analyze and assess complex ethical and political situations.

The reason we cannot rely on human rights discourses alone is drawn out by the care critique of human rights. There are three main points to this critique. In the first instance, human rights, at least as far as the mainstream theories go, are not geared to look at the relations of power that operate in the background of the current political order. Because human rights theories are crafted as a set of standards that are meant to protect particular aspects of human life, they are not necessarily well equipped to take power relations into account, they can often fail to ‘see’ the full array of problems attendant on the enforcement of human rights claims, or the full depth of any particular problem, such as exclusionary practices. Failing to fully appreciate the differences in power in the political realm in many ways can mask the complex moral relationships we have with “those who are our superiors or our inferiors in power” (Baier Reference Baier and Held1995, 55).

Second, while human rights are predicated on the idea of equality, this is often understood as sameness. This kind of equality is one that many people in the Western tradition come to expect and hold in high regard (Robinson Reference Robinson2003, 176). However, this assumption of sameness can obscure the gendered and racialized relations of power that exist, and that our ethical lives are structured by and through these relations of power. The need for ‘women's human rights’ and organizations that are centered around investigating the human rights abuses that are unique to women, in some measure, call into question the ability of human rights analyses to treat everyone the same and still protect against profound kinds of injustices. Only through recognizing our differences and how our differences result in different treatment can we begin to rectify some of the systemic structural mistreatment that the globally vulnerable experience.

The third critique that care ethics levels at human rights discourses is that they can overly focus on the individual agent, and too closely circumscribe who counts as an agent in the first place. Thus, very often, political thought based on mainstream human rights discourses can lose sight of the importance of how we live in relation to other people. The language of rights cannot always adequately encompass certain goods such as “economic and social security, the fulfilment of basic human needs, and the cultural survival of groups” (Robinson Reference Robinson1999, 63) because such goods are predicated heavily on social responsibility and care. For the most part, human rights discourses are aimed at protecting the rights of the individual, not necessarily disconnected from their wider social and political framework, but with the primary focus being the individual as a moral agent.Footnote ⁴

The point of the care critique of human rights is that it highlights what care ethics can do that human rights discourses cannot. Human rights discourses, on the whole, function best in a legal-type framework where sets of standards can be agreed upon and subsequently enforced. Although this means human rights are a good, initial fit for public policy, public policy is much more than law. It is how political decisions shape the lived experiences of those who live under the aegis of a particular political entity. Not only policy around family leave, hospital standards, or education alter our caring relations with particular others, but also the tax code, immigration policy, and economic treaties. Human rights, with its focus on the individual moral agent, universal standards, and equal treatment, cannot always see the way in which difference can profoundly matter when it comes to the scope, application, and evaluation of the effectiveness of any policy.

Having established what I mean when I talk about human rights and care ethics, and by providing a brief overview of the care critique of human rights discourses, I now turn to the main tenet of this article: the argument that public policy can and should incorporate the perspective of care ethics. It matters, morally and politically, how any given policy affects persons who are constructed as different. Additionally, human rights–based policy can leave intact harmful patterns of power that serve to exclude, oppress, or marginalize differently constructed persons, those who are gendered, racialized, or differently abled. Conversely, public policy that uses the lens of care ethics to unearth the underlying causes of social contexts can work to not only offer an alternative set of possible solutions to a problem but also can be used to challenge the patterns of power, patterns that current public policy might actually entrench, that serve to render persons socially, economically, and politically insecure in the first place.

Agenda Setting

As an initial matter, policies are generally created to address social problems. Understanding the ways in which social problems are identified and interpreted by policy makers, policy advocates, and the general public can provide insight into the relationship between how the problem is framed and what kinds of solutions are then considered possible. Because human rights have been used to outline the objectives for public policy and government action, human rights create: “[A] logic of responsibility through accounting mechanisms and legally binding obligations. Seen through this lens, the objective and the essence of public policy is not to solve specific problems or respond to unsatisfied demands but, rather, to fulfil rights” (Vazquez and Delaplace Reference Vazquez and Delaplace2011, 39). Public policy from a human rights perspective reinforces the idea that the state has an obligation to its citizens, and specifically that that obligation has to do with the fulfilment of their human rights. Thus, the agenda-setting stage the goal is to ‘unpack’ the right, or to understand the obligations that the right will require, which then forms the basic content of public policy.

There are, however, two particular problems that the human rights perspective on public policy is not well equipped to address at this stage. First, the background conditions and assumptions that exist within any society greatly influence the kinds of problems that can be ‘seen’ as suitable for policy solutions in the first place. Ideas about what is normal, deviations from normal, and normative political ideals are all bound together in defining any social problem because human rights do not necessarily identify some social problems as politically relevant nor do they investigate the background causes of identified social problems. The second problem for a human rights perspective is that the agenda-setting stage requires a fair degree of ‘active citizenship.’ This active citizenship is where the right to participation and consultation in public matters “implies the active, documented participation of all persons who are interested in the formulation, application, and monitoring of public policies” (Vazquez and Delaplace Reference Vazquez and Delaplace2011, 43). The problem with active citizenship is that those who do not have the time to participate in this way are often left out, excluded from the policy process even though their problems, often around gender and dependency, are not brought to the policy table. Such persons can be rendered invisible to the political process because they cannot participate through traditional means (Kittay Reference Kittay2001, 529).

Taken together, the problem is that human rights in and of themselves set the public policy agenda, making assumptions about what the vital problems are, rather than asking of those who face problems: What problems do you face? What should be on the agenda? Again, this does not mean that human rights fail to mark out serious problems. Human rights do exactly that; however, the scope of human rights is just that: human rights. Any public problem that is not, in and of itself, a human rights problem, could be overlooked if human rights are the sole ethical guide for public policy. Aside from some sporadic work on the right to care, which I do not take up here since there is no (as yet) agreed upon human right to live within our networks of particular others, the concerns of care itself are not part of the ethical agenda of human rights based public policy. However, the importance of care to any society cannot be overlooked, and Tronto suggests an even more strident claim: thinking about care in the public arena is necessary for a more robust democratic project. Specifically, only when we talk about care, with its focus on interdependence instead of independence, and how best to distribute the resources, both material and human, to ensure caring needs are met, can we properly underwrite the democratic ideals of equality and freedom for all persons (Tronto Reference Tronto2013, 45). Such a conversation is only possible when the acceptable topics of public conversation are expended to include the concerns of care in the first place, when the agenda can be set by the practices and guidelines of care ethics in addition to other, more traditional ethical guides.

Focusing on ‘active citizenship’ as an example, consider that bringing problems to public awareness requires a good deal of time and effort, the kind of time and effort that most parents, particularly mothers, do not have in abundance. On a human rights account, certainly people have the right to petition the government, to voice their opinions and not be silenced by officially sanctioned censorship. However, also on a human rights account, there is no corresponding guarantee about how giving voice to one's problems is accomplished. As Pogge notes, what matters about human rights is that there is access to the objects of our human rights, not necessarily any kind of assurance about being heard and one's complaints being taken seriously (Pogge Reference Pogge2008, 72–74). While that is reasonable on a human rights account, the same cannot be said on a care ethics account. Relying on the fact that one can speak, and thus one's human rights have the potential to be fulfilled, assumes that if the problem is dire enough, someone will speak. For example, is it, on a human rights account, incumbent upon the government to help free up the time of mothers so that they might participate in wider social and political discourse? Unlikely. Conversely, a care ethics examination of how people are able to interact with governments is expressly aimed at being attentive to “what is actually the problem as experienced” (Sevenhuijsen et al. Reference Sevenhuijsen, Bozalek, Gouws and Minnaar-McDonald2003, 315). The problem is not simply that mothers are at risk for losing employment when they have children but that there are social expectations for mothers, particularly in the United States, that the new child should be a new mother's primary and driving focus. These social expectations, combined with the increased economic vulnerability that children bring, can serve to underwrite the assumption that mothers, particularly new mothers, should not want or have to engage in wider social, economic, or political discussions. Human rights cannot necessarily see how this combination of assumptions (social, political, and economic) prevent women from being able to participate in public discussions more fully after they have children because the focus is on whether they retain the ability to speak rather than whether they have the time, resources, or energy to do so.

The incorporation of caring practices at this stage is a real possibility. For example, some nations have taken up Eva Kittay's idea of the doulia, which encompasses the idea that “[j]ust as the caretaker has a responsibility to care for the dependent, the larger society has an obligation to attend to the well-being of the caretaker” (Kittay Reference Kittay1999, 134). In France, some nurses make home visits, helping new mothers with household chores (except for laundry, save in exceptional circumstances), which provides support for new mothers and allows new mothers a chance to rest from the constant demands of having a new born (Shapiro Reference Shapiro2008). This kind of help could allow for people with relatively demanding caring responsibilities to have time to engage more in the public sphere, especially when it comes to political engagement. However, such help comes at a cost, and not just financially speaking. Claire Lundberg, writing about her experiences trying to get a job in France while she also has an 18-month old child, shows a social cost to the expansive support new mothers receive: women can be ‘frozen out’ of work, or simply not hired in the first place when looking for new work due to assumptions about how mothers will continue to prioritize the needs of their children over and above that of their employment (Lundberg Reference Lundberg2013). At the same time, men who are fathers do not receive nearly the same kind of scrutiny, demonstrating unspoken gender bias still thriving in French culture despite the clear support women receive to be mothers.

Public policy is an evolving process, and as the example of France demonstrates, always in need of improvement, always being open to shifting the way in which we see particular problems as public or private, and expanding the scope of what is on the agenda. In France, it was taken seriously that support for new mothers should be a public concern, and as such, it was put on the agenda and public policy was enacted. However, this created another problem, that of women having difficulty in their careers. In neither situation were anyone's human rights being unfulfilled or violated or officially disrespected. Rather, the problems were due to a unique combination of gendered assumptions about parenting, economic constraints imposed by being a mother, and the current political landscape of France. The lens of care ethics, with its attentiveness to the problems as actually experienced by persons, is well suited to seeing problems that human rights discourses overlook, including more subtle issues that are still worthy of public discussion because they affect how many women live and work within their networks of particular others.

Policy Formulation

Policy formulation is the stage of the policy process when policy makers and other relevant policy actors first draft and discuss possible courses of action to rectify or counter a determined problem (Howlett and Ramesh Reference Howlett and Ramesh2003, 143). The relevant actors involved are a mixture of policy decision makers, such as elected officials, experts in specialized fields, public social groups, or special interest groups. On a human rights account, this means after the agenda has been set or the right has been ‘unpacked,’ the goal is to then identify which state institutions are responsible for fulfilling any given obligation or how policy is formulated. The questions that human rights standards ask of policy makers are what are the “structural causes of a right not being exercised” (Vazquez and Delaplace Reference Vazquez and Delaplace2011, 48). Every barrier to fulfilling human rights becomes a ‘public problem’ and thus must be addressed through appropriate state action (Vazquez and Delaplace Reference Vazquez and Delaplace2011, 44). In determining how best to reduce these structural barriers, human rights discourse assumes that individual autonomy exists and will complement or support the policy formulated. Care ethics, on the other hand, does not make this assumption of autonomy and instead considers the individual in the context of relationships of (inter)dependence. Using the lens of care can be the first step toward changing how we think of dependence and, thus, how we craft policy.

A problem with public policy informed by current human rights discourses is that in many ways it still reflects a mainstream liberal idea of citizenship, that of the autonomous individual who can meet their basic needs on their own. This conception of the person allows for dependence in the private sphere, but it assumes that once an individual is in the public realm, they are meant to “transcend dependency” (Hankivsky Reference Hankivsky2004, 5). Human separateness is a necessary feature of public policy on a human rights perspective, and dependence may still be assumed to be a failure on the part of the individual. This is a current feature of traditional, mainstream human rights–based policy, which treats the individual as the locus of primary concern without taking into consideration the role the larger community must play in the lives of individuals. When the individual is the target of policy without considering the wider community, there can be problematic disjunctions. Selma Sevenhuijsen uses a healthcare policy document by the Dutch government called Choices in Health Care to highlight key problems with standard policy practices. She notes that although the document seeks to depart from an overt focus on the individual by “invoking communitarian solutions or by selectively stating that needs might be socially constructed” (Sevenhuijsen Reference Sevenhuijsen and Savage1998, 133), the individual remains the primary subject of concern. The policy document makes it clear that the individual is responsible for assessing their needs and expressing them as claims within the healthcare system. However, this document also assumes that the individual is irresponsible and that they have ‘unlimited’ needs that must be curbed by a responsible political community to discuss responsible healthcare choices. This separation of the individual from the larger community and from their relationship networks renders the community and the individual at odds with one another. The ‘irresponsible individual’ can be perceived as a threat to the wider political community. Conversely, because the political community argues about care “with abstract, legal norms as its main point of reference” (Sevenhuijsen Reference Sevenhuijsen and Savage1998, 133), the individual can be isolated, the subject of judgmental scrutiny, where the main concern is not so much their well-being as a person but how to ensure that the individual meets a certain set of health standards without causing undue stress upon the community as a whole. Pitting the individual and community against each other is exactly what we do not want in public policy.

Once care ethics is incorporated into the making of policy, the array of possible solutions will shift. This does not mean that the array of solutions will necessarily become larger or smaller, merely that the nature and kind of solutions will not necessarily resemble previous sets of possible solutions. A prime example is demonstrated by a case study by Olena Hankivsky, who examined the ways in which victims of abuse in residential schools in Canada had their claims addressed and the kinds of solutions offered to make restitution to the victims, solutions that were intended to provide closure or healing. One of the primary means of restitution was to provide monetary payments once survivors had gone through a claims process, specifically for “therapeutic expenses and pecuniary loss arising from injury, pain, and suffering” (Hankivsky Reference Hankivsky2004, 65). The problem with these payouts was that putting a dollar amount to a person's suffering is difficult, and while a payout might be acceptable for some individuals, others felt insulted or angry, because thinking of compensation only in monetary terms may “trivialize the survivor trauma and distract from more important therapeutic options” (Hankivsky Reference Hankivsky2004, 75). Others felt confused when they were given a payment without any advice or assistance in how to manage the money. By incorporating care ethics into the policy process, possible solutions expand from the idea of monetary compensation, but they do not necessarily exclude it. For some survivors, money and guidance about how to best invest or utilize the funds would be most beneficial to aiding the survivors as they worked to rebuild their lives. Care ethics would also require advisors to guard against paternalistic attitudes while dispensing advice, which would require public administrators to be attentive and responsive to the needs of any particular individual. For other survivors, simply the chance to explain and tell their story, to be listened to and have their stories acknowledged during the claims process was enough. Other survivors might require sustained therapy, or assistance with finding a job so they reach their professional and personal goals, or even a commitment from the government to prevent further instances of institutional abuse (Hankivsky Reference Hankivsky2004, 78–79). Care ethics can generate possible solutions with the understanding that sometimes it is necessary to be flexible and responsive to the needs of the policy's target group. In the example from Hankivsky's work, although it might require more money and time to fully address the trauma caused by the residential schools, the net result would be more stable adults that can participate more fully in society because their trauma was addressed in a way that allowed them to heal and regain their sense of autonomy.

Considering these examples, one of the most striking insights that care ethics can provide at the policy formulation stage, is how care and dependency are problematically structured, both politically and socially. The assumptions around care and dependency are themselves shaped by current policy, namely the tension between how current policy shapes the conditions under which people live and a continued insistence that a critical care perspective is unnecessary or unable to guide policy. As Selma Sevenhuijsen argues, if care is going to be adequately discussed in the political arena, this “presupposes that we handle with care a number of key values for good care provision in the public sphere,” which “implies a re-evaluation of care in politics or, rather, a relocation of care from the margins to the centre of political judgment and collective action” (Sevenhuijsen Reference Sevenhuijsen2003, 183). Using care ethics provides new insights that require an examination of the norms and assumptions around individuals and communities, bringing care into the center of our political process and policy making.

Decision Making

While the formulation stage produced a pool of possible solutions, in the third stage, decision making, a small set of actors—decision makers—make the final choices about what policy solution to pursue. There are two different kinds of policies that can result from the decision-making process. Some policies can be ‘positive,’ altering the status quo, or they can be ‘negative’ by upholding the status quo instead.Footnote ⁵ Further, “public policy decision-making is not a technical exercise but an inherently political process” (Howlett and Ramesh Reference Howlett and Ramesh2003, 162). There are winners and losers in so far as some people get something out of the decision while others do not. Decision making is a process that has directly grown out of the two previous stages, and it involves a great deal of back and forth in which actors often trade promises to reach an agreement.

Human rights perspectives on policy tend not to touch much on the decision-making stage, largely because most human rights models tend to view this stage as the one that determines “which of the possible solutions presents the greatest degree of technical certainty based on the available evidence” (Vazquez and Delaplace Reference Vazquez and Delaplace2011, 35). While there is an allowance for the fact that the political outcomes of elections can greatly impact this process, and that such outcomes can be as important as technical evidence, the human rights analysis of the decision-making stage does not investigate the ways in which relations of power are often reinforced by decision makers. Care ethics can provide a deeper analysis of the use of power at this stage because human rights discourses offer little guidance for policy makers other than existing as a set of standards (Ivison Reference Ivison2008, 200–1).

Policy is an application of power, regardless of whether the policy is designed to help target groups. Olena Hankvisky, writing about the promise of incorporating an intersectional analysis into care ethics, argues that using this type of analysis in policy making would help place “a concept of power that is attuned to intersecting forces of power front and center, the IBPA [sic. Intersectional-based policy analysis] requires that policy actors see themselves as critical players in the development, implementation, and evaluation of policy” (Hankivsky Reference Hankivsky2014, 260). Further, she argues that such an analysis would require deeper self-reflexivity from policy actors about how their own specific social locations produce their particular perspective. When those in power are ethically required to examine their own specific locations and to reflect upon the intersection of multiple forms of power that shape all our lives, and importantly, how we care for and are cared for by particular others, the way in which policy actors make decisions about policy is open to being altered. An intersectional care ethics analysis would help those in power understand how policy might affect differently situated persons, and with that understanding comes the ability to make more informed decisions about what kind of policy to pursue in the first place.

To some, this is an idealistic hope, that policy actors would willingly make the effort to “confront the intertwined nature of domination rather than focus on specific identities or concerns” (Hankivsky Reference Hankivsky2014, 261). However, there is already a growing acceptance of the need to be more sensitive to how the application of power by decision makers affects different people's lived experiences. One such example is that of Louisville, Kentucky, which became a “Compassionate City,” in 2011 when Mayor Greg Fisher signed a new charter for the city outlining a new vision for how the city itself would care more actively for the people of Louisville (City of Louisville 2017). Several initiatives were created, including city-sponsored volunteering and compassion training for local public schools and the city's jail. Although Louisville remains one of America's most segregated cities and violent crime rates are up, there are other successes, such as reports of better overall physical and mental health and better support for the elderly (Board Reference Board2017). Further, the city has sponsored its own study, charting multiple metrics across the city in an effort to test, revise, and possibly rethink some of the programs that are currently being offered by the city (Meece Reference Meece2016). The point is not that in the last six years Louisville has become an idyllic nexus of compassion but rather that those who hold power in the city are committed to supporting the caring needs of those who live in the city, holding itself accountable, and accepting that their particular socio-cultural location can only tell them so much about what differently situated persons in the city actually need and experience.

Although there is certainly room for skepticism about the uptake of decision makers using an intersectional care ethics analysis incorporating a nuanced understanding of the different patterns of power involved in the policy process, this does not mean that policy actors will flatly refuse to engage in this kind of self-reflexive, critical engagement. The acceptance of human rights as an ethical guide for policy was not necessarily automatic, nor was it required. It took decades from the adoption of the United Nations Declaration in 1948 for decision makers to embrace human rights as a possible part of public policy; thus, we must continue to push for the uptake of care ethics in the same way. Examining the power relations at play can “contribute to exposing oppression, repression and systematic forms of dominance and assist in ways of reversing these” (Sevenhuijsen Reference Sevenhuijsen and Savage1998, 66). The question of who holds the greater parity of power during the policy process can be made clear using the lens of care ethics, and how that power is used must be carefully considered to foster a responsible use of power for the betterment of people and the relationships people maintain.

Policy Implementation

Policy implementation is where the decisions are carried out. At this stage of the policy process, the scope widens once again to encompass not only the policy decision makers but also those who will be directly delivering the policy outcomes and those who are receiving the policy outcomes. In a government, this means that politicians might be the decision makers, but those who implement the policy are often civil servants. The policy system now also expands to include target groups: “groups whose behaviour is intended or expected to be altered by government action” (Howlett and Ramesh Reference Howlett and Ramesh2003, 188). These members of the public are the recipients of policy implementation or are acted upon by the policy-making institution.

As previously noted, human rights have come to be embodied through public policy and are now more than bulwarks against illegitimate government action. Further, ideas about inclusion are often “grafted onto a notion of citizenship in terms of rights” (Sevenhuijsen Reference Sevenhuijsen2000, 21). When human rights are realized through public policy implemented through government institutions, human rights are transmuted into citizen rights in a practical sense. Although human rights generally still retain their theoretical purchase, government public policy based on human rights often places a priority on providing citizens with the objects of their human rights.Footnote ⁶ This, then, creates categories—the citizen and the noncitizen—that contravenes the equal status of the human rights of all persons. If all persons human rights are meant to matter equally, then why is it justified through public policy to prioritize the human rights of some over others on the basis of national origin?Footnote ⁷ When noncitizens are the targets of policy, it is often in the realm of foreign aid or immigration policy, both of which deal with noncitizens as Others, as people determined a priori to not be like citizens. Noncitizens are marked as different through multiple means by public policy, even public policy guided by human rights because human rights are not well suited to take in to account how differently situated persons are affected by policy. While this might be argued as a failing of the practical implementation of human rights, and not human rights theory as such, that is exactly my point. Human rights cannot be our only ethical guide for the policy process, and when the practical outcomes of human rights–based public policy are problematic, we should have another option for ethical guidance, one that avoids potentially reinforcing patterns of exclusionary practices.

This definitional and exclusionary issue is related to the same problem that occurs in the agenda-setting stage: what voices are heard by policy institutions? In the agenda-setting stage, it was those who had the time, energy, and resources to participate in the public discussion about what is and what is not a public problem. In the implementation stage, we can again see how certain groups are differently ranked and infused with greater worth. Noncitizen workers in general are acted upon by policy, not acted with to address the real concerns and problems faced by the people who live in legally and politically precarious situations. They are excluded from much of the policy process, and as such, when policy implementation occurs, they are a target group of policy without any say in how that policy affects their lives.

Focusing on the transnational care worker participating in the ‘global care chain,’Footnote ⁸ we can see how this conflation of human rights with citizen rights and the resulting exclusion of noncitizens is problematic. The transnational care worker is often a noncitizen. The exclusion of care (and those who engage in care) from larger public debates is juxtaposed with the vital caring needs, particularly in the Western world with its aging populations, with women who are torn between the labor market and care work at home, and norms about masculinity that allow for men to avoid full and equal participation in the work of care. Despite the need we all have for care and the policy statements that seek to find ways to provide it for citizens, such statements do not acknowledge deeply important questions about care itself. Canada's Live-in Carer Program demonstrates how host nations invite foreign nationals to fulfil a desperate caring need, but they do so without providing those vital workers the full, material protections of citizenship. Such persons are given ‘partial citizenship,’ which grants formal access to rights but due to the ‘points based’ two-year path toward full citizenship, makes enforcing or fulfilling their human rights problematic. There is a lack of oversight, especially with regard to monitoring for abuses and the enforcement of contracts (Gabriel Reference Gabriel, Mahon and Robinson2011, 54–55). This partial citizenship is particularly problematic because those who only have partial citizenship are not fully integrated into their host state nor are they fully protected by their home state. This exclusion is brought about by public policy designed to fulfil the human rights of the citizen, and it points to the fact that “traditional concepts of rights, justice and citizenship may be inadequate to address the contemporary challenges of care and well-being at the transnational scale” (Mahon and Robinson Reference Mahon and Robinson2011, 13). Additionally, immigrants are often put in the position of being made to demonstrate that they deserve to be included, not excluded, when it comes to policy protection. The notion of who ‘deserves’ the protection of the state can put an undue burden on those who might not competently speak the host language or understand the bureaucracy of the host state (Tronto Reference Tronto, Mahon and Robinson2011, 173). This question of ‘deserving’ can then further reinforce the concept of included and excluded groups. Notions around why or why not an individual ‘deserves’ the protections of the host state can be particularly problematic when the policy of the host country is in place to fulfil a gap in the provision of care, considering the vital role care plays in everyone's lives. As such, these policies serve to reinforce two forms of inequality, that of “the devaluation and invisibility of the private care-domain and its subservience to the public world of work, and […] the translation of the unequal relations of personal interdependency into the unequal relations of transnational interdependency” (Williams Reference Williams, Mahon and Robinson2011, 25). Without women from other nations willing to leave their homes and do the vital work of caring, Western nations would be in an even deeper crisis of care than they currently are. To allow such a state of affairs to remain unexamined and unchallenged is morally and politically problematic.

Conversely, if the ethics of care were part of the implementation stage, it would provide guidance for how we target policy, and it would call into question the legitimacy of creating a hierarchy of target groups. Just as in the agenda-setting stage, where care ethics can be used to push for expanding the scope of what we consider public problems and how we ensure more voices are heard by policy institutions, care ethics at the implementation stage can help those who implement and administer policy be more sensitive to the differences in power, as discussed in the decision-making stage. Care ethics can also provide ethical grounds for paying closer attention to how the relationships and the people in liminal situations are affected by any particular public policy. Because it is primarily concerned with relationships and the structures of power that can underlie and shape relationships, care ethics requires attention to be given to all components of the relationship. Thus, the lens of care would require an analysis of policy implementation to be mindful of mechanisms of implementation more broadly, at the level of administrators and managers, as well as being aware of how the day-to-day processes of implementation occur at the level of individual persons. Although this concern could be developed further, particularly regarding public administration, care ethics could be used as a guide for public employees as they work with target groups. Such a move would encourage public administrators to “reflect on how relationships may be affected by judgment made in the administration,” as we as more strongly reinforce the importance of policy implementation being an interactive process, one that occurs between multiple sets of people (Stensöta Reference Stensöta2015, 187).

Policy Evaluation

Policy evaluation is “the stage of the policy process at which it is determined how a public policy has actually fared in action” (Howlett and Ramesh Reference Howlett and Ramesh2003, 207). Like the other stages of the policy process, built-in biases are present that can color the outcomes of any evaluation, especially considering that the terms success and failure can often be subjective. From this evaluation process, there are two outcomes: feedback and termination. In feedback, the policy loops back to a different stage in the policy cycle to be reviewed and adapted as time goes on. Termination occurs when the policy is halted or disbanded (Howlett and Ramesh Reference Howlett and Ramesh2003, 216–218). On a human rights level, evaluating the success or failure of any policy can basically be understood as the fulfilment or nonfulfilment of a human right. This basic understanding can be broken down into certain kinds of indicators of success: structural, process, and results. Structural indicators refer to legal codes and institutions conforming to or facilitating the fulfilment of human rights. Process indicators measure the quality of the policy's ability to implement rights. Progress indicators measure the reach of the policy and whether it encompasses all the necessary functions to fulfil the right. Results indicators reflect the actual impact of the policy on real persons (Vazquez and Delaplace Reference Vazquez and Delaplace2011, 52).

However, how we understand the success or failure of any policy by human rights standards does not necessarily consider the fact that it can leave problematic social norms intact, particularly about race, gender, and care work, which in turn undercuts the basic equality that human rights are meant to embody. Even the metrics used to measure development can incorporate a bias against care work itself, considering all in-home, family-consumed care work to be unimportant when it comes to economic reporting and accounting. This omission can render care work, and the workers themselves, invisible to public policy metrics (Waring Reference Waring2003, 35–36). In large part, this is because human rights and the public policy it inspires charges that all individuals should be treated as ‘the same,’ but the lingering questions remain: The same as whom? What model of individual is our ‘standard’? As Olena Hankivsky argues, feminist critiques have demonstrated that the standard for equality comparisons has “usually been a very specific, historically privileged group in society – white, able-bodied, middle-class males” (Hankivsky Reference Hankivsky2004, 45). Because white men are often the ‘norm’ against which other equality claims are considered, public policy based on this assumption cannot encompass certain differences, which often require different needs to be fulfilled, as well as allowing certain social norms, particularly those of race and gender, to remain unexamined and intact. However, in some cases and issues a universal standard is sufficient to address public problems:

Thus, even if someone's human rights are being fulfilled by a public policy, other problems might exist. A human rights perspective cannot always ‘see’ the problem, such as how the tasks of social reproduction are unfairly allocated in families, that is, women still do the bulk of the caring labor in the home. Further, policy based on human rights seeks to overcome historical disadvantages without engaging with the root causes of those disadvantages in the first place. It is still the case that most of the dependency work (care work) is performed by women and racialized women, who are often transnational workers (Hankivsky Reference Hankivsky2004, 112). The unequal division of caring labor persists despite the increased participation of women in the work place and the policies in place that foster that participation. This is because human rights–based public policy does not challenge the deeply held and historically situated norm about care work as being tied to femininity, and the norms around men being released from performing care work due to their role as a worker in the labor market (Sevenhuijsen Reference Sevenhuijsen2000, 23). When looking at global care chains, current transnational migration of care work follows historical patterns of exploitation, particularly colonialization, and international patterns of racial or ethnic division (Erel Reference Erel2012, 9). For example, the history of African American women caring for white children in the United States reinforces the perceived ‘normality’ of nonwhite women employed to care for children not their own, which has been expanded to include women from Latin America, drawing poorer women from poorer countries across borders. The focus on the bare fulfilment of an individual's human rights does not necessarily mean that the historical background will cease to have any impact on our lives as we live them.

This kind of oversight can be seen in two examples in which the success or failure of policy was judged without reference to the current problematic structures of gender or care. The first examines a Dutch policy document Choices in Health Care, and the second focuses on the South African White Paper for Social Welfare. In the document Choices in Health Care, women play a dual role. On the one hand, women's health organizations were invited to participate in the campaign because they were “the vanguards of autonomy and free choice [in health care provision], as opposed to medicalization” (Sevenhuijsen Reference Sevenhuijsen and Savage1998, 127). However, prior to that point, in this document women were addressed as persons who manage and influence the consumption of care within the family unit, so while women's health organizations were seen as political actors, women in general were cast in their traditional role as facilitating or caring for their family members (Sevenhuijsen Reference Sevenhuijsen and Savage1998, 127). Although the policy document is primarily concerned with how to ensure that the elderly's human right to health care is fulfilled, it does so by accepting the role of women as caregivers, drawing on the “silent logic of a ‘natural’ provision of care within the family and kinship networks” (Sevenhuijsen Reference Sevenhuijsen and Savage1998, 131). Even if the policy were successful on the grounds that it increased the quality of elder care, it will have done so by utilizing the assumed naturalness of pairing women and care work.

The second example comes from an examination of the White Paper for Social Welfare (WPSW) from South Africa. Written in 1996, the document expresses a strong commitment to human rights, and even a professed commitment to the ethics of care (although the commitment was not carried out in relation to the way social welfare was conceived). Throughout the document, there are discussions about care provision and the important role care plays in the lives of citizens. However, the WPWS contains contradictory language concerning women and care, which leads to two problems. First, caregiving is presented as a gender-neutral activity, which ignores the pervasive gendered divisions within the family unit. Second, it singles out women as a ‘special group’ that has particular ties to care work and that should be supported in that endeavor. Concerning the first problem, the WPSW was informed by a familial understanding of care, such that caregiving was the focus and that caregiving was largely carried out within the private sphere among kin groups. Additionally, in the chapter of the document about care, “family life is described in gender-neutral, functionalist and moral terms” (Sevenhuijsen et al. Reference Sevenhuijsen, Bozalek, Gouws and Minnaar-McDonald2003, 306). The silence regarding the fact that women still do most of the care work is problematic, obscuring pervasive gender divisions in spite of a formal gender neutrality. Only in a later chapter, about women in particular, is this gendered division of labor addressed. Yet, there is nothing in the policy about rethinking the division of care work; instead, the document argues that women “should be supported in their caring roles without the gender division in care being questioned in the light of gender justice or of promoting care giving as an aspect of the quality of men's lives” (Sevenhuijsen et al. Reference Sevenhuijsen, Bozalek, Gouws and Minnaar-McDonald2003, 307). Once again, there is a real problem within this document as to how it seeks to resolve the conflict between the unequal division of care and a commitment to the fulfilment of human rights. The second problem can be seen throughout the document: women are depicted as a ‘special group’ with the need for special protections against domestic abuses, support in their caring roles, and as a group vulnerable to HIV transmission. However, the document does not discuss men's roles and the constructions of masculinity that necessitate the need for such protections. This invisibility of men within the WPWS underlies the problem with how policy concerned with human rights fulfilment does so on the grounds of protecting women so that they are able to function within society on the model of the self-reliant and independent citizen that men already are assumed to hold (Sevenhuijsen et al. Reference Sevenhuijsen, Bozalek, Gouws and Minnaar-McDonald2003, 311–12). This policy could also achieve a successful evaluation while still perpetuating the norms around gender and care that work to keep women and care from full political consideration.