Ethic of Care, Needs, and Law

SHINAGAWA, Tetsuhiko

in The Sociology of Law, n. 64, 2006,

the Japanese Association for Sociology of Law (ed.) , Yuhikaku, Tokyo, pp.102-115,

According to Gilligan, women and men have different process of development in morality and conflicting ethical orientations. She expressed the difference in terms of 'ethic of care' and 'ethic of justice'. The debate between two ethics is called 'care/justice debate'. There are three positions. Many proponents of ethic of justice claim that ethic of justice is effective in public domain, while ethic of care can be applied to private domain. Many proponents of ethic of care criticize the modern concept of human being as autonomous and equal. Some radically exclude talk of justice. Noddings belongs to this stance. But caring without justice would raise difficult questions. Is there no moral obligation to strangers who cannot be cared by us? Should carers keep a relation, even if it does harm to her? Therefore, others appropriate justice orientation into ethic of care to invent a new political theory.

Noddings has also proposed social policies. Her idea of right relies upon needs: we should respond to needs of others without questioning entailment to be done so, because needs derive from human being as vulnerable living creature. We cannot necessarily know our real needs. Carers may infer needs of the cared through respectful caring relation. Our selves are relational. Noddings maintains that the aim of punishment consists in education, because there are no needs of pain.

How does man respond to Noddings in law? We could consider three ways parallel to three stances in care/justice debate. Some claims that law abides by retributive justice. But it is clear that it could not ensure repentance of wrongdoers and recovery of relation between them and their victims. Some introduce restorative justice. Could relation, however, not be restored, but only reconstructed? Law based on ethic of care would lead the concerned into reconstruction of a relation. We could foresee that Noddings' idea of law would approach to the law founded on restorative justice.