Between Care and Justice: A Reinterpretation of the Debate in Light of (Inter)national Constitutionalism

The framing of the ethics of justice as opposed to the ethics of care has nurtured a three-fold misunderstanding. On one hand, a certain interpretation of Carol Gilligan’s In A Different Voice emphasized this opposition, even if Gilligan’s later writings and other scholars’ work have opened up the possibility of delineating a dynamic and potentially harmonious relationship between the “moral voices” of justice and care. On the other hand, the ethics of justice has been identified primarily with John Rawls’ neocontractualism. Finally, this ethics of justice and the language of rights have often been confused. The second school of the ethics of care, i.e. the “political theory of care”, has reevaluated the importance of the ethics of justice, law, and rights. These scholars have enriched the debate on the relationship between care and justice. The views of some European scholars, particularly Italian ones, further refined this perspective. However, I argue that it is possible to take a further step, starting from interpreting law as a social practice whose reasons for existence and content depend on the attitudes of the interpreters, attitudes which are forged in historical contingencies. In today’s constitutional democracies and within international and regional bodies committed to protecting human rights, this practice is oriented by the belief system developed in (inter)national constitutionalism since the second half of the twentieth century. This is a political and legal project based on the principle of equality and recognition of the dignity of every human being. (Inter)national constitutionalism has enriched the liberal legal tradition by theorizing the subject of law as embodied and by recognizing its ontological vulnerability and situated needs. Care, too, is a social practice, and I argue that it is oriented by similar beliefs. The “political theory of care” is thus a valuable ally for (inter)national constitutionalism, as it contributes to innovating and defending it by making visible subjects and needs that have been neglected until now and developing a set of social practices and molecular forms of resistance. In turn, (inter)national constitutionalism represents an inalienable legacy to draw on for achieving a “caring democracy”, since it has prepared the institutions and guarantees that care can now strengthen and re-signify. Together, they can fight off the neoliberal and conservative attacks that aim to subvert the “political project of equality”.