Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, June 25, 2006

Schiltz on Hirshman

My colleague Lisa Schiltz responds to our ongoing conversation (see here, here, here, here, and here) regarding Linda Hirshman's critique of the claim that staying home with the kids is a legitimate feminist option:

I was prepared to be outraged by her article, but I actually agreed with much of what she says.  I think it’s important to keep in mind that she is quite consciously addressing a very narrow band of women – highly educated, affluent women who are married, have a couple of kids, and are nearing 40 years old.  Those are the women she was studying; even though she addresses her “rules” to younger women, she’s thinking about them as women who are going to be just like the ones she studied in a few years, unless they start making some different choices.

I think a lot of the advice she gives those younger women is great career advice.   Hirshman is right to tell these young women that “glass ceilings” in the workplace these days are much more likely to be a function of choices they make about how much time and energy they’re willing to dedicate to their job, and strategic decisions they make about launching their careers than of lingering prejudice against women.  I also really appreciated her suggestion for the proper economic analysis of the cost of child care to a married couple.  It ought not be deducted from the woman’s salary to determine whether it makes economic sense for the woman to keep working;  it ought to be deducted from the joint salary of the couple.  Indeed, she sounded almost Catholic about her criticism of the former method of calculation, saying “it totally ignores that both adults are in the enterprise together."

And I heartily applaud Hirshman’s challenge to the “older” women – as she calls them: “the privileged brides of the Times.”  If women never rise to leadership positions in the public sphere, the unique genius of women that our Church articulates so forcefully will never have a chance to change the power structures in the U.S.  Hirshman wrote:  “If the ruling class is overwhelmingly male, the rules will make mistakes that benefit males, whether from ignorance or from indifference.”  I’d go even further, and say that if women who are mothers never rise to leadership positions in the public sphere, our families are going to continue to suffer from the mistakes our countries leaders have been making about all sorts of policy questions.  In the words of everyone’s hero, Mary Ann Glendon:  “[F]or the first time in history large numbers of women occupy leadership positions and almost half of these new female leaders – unlike male leaders – are childless.  Will this affect our goals and values?  Will it affect our programmatic agenda?  You bet it will.  People without children have a much weaker stake in our collective future.  As our leadership group tilts toward childlessness, we can expect it to become even harder to pay for our schooling system or for measures that might prevent global warming.  America’s rampant individualism is about to get a whole lot worse.”  I think some women with children really need to take up the challenge of working outside the home.  I think the ones that Hirshman’s talking to – well-educated, wealthy women who probably only have one kid who is now in school full time – are exactly the ones who ought to heed this call, and step up to the plate to try to make things better for other mothers who aren’t in a position to do so.

That all being said, I think Amy’s hit the nail on the head with the most important mistake that Hirshman makes – buying in to the notion that flourishing means meeting the standards of  success established by the current power structures – the very ones Hirshman criticizes.  In fact, Hirshman’s own research support’s Amy’s point, but Hirshman doesn’t seem to recognize that.  She says, “Half my Times brides quit before the first baby came.  In interviews, at least half of them expressed a hope never to work again.  . . . [W]hen they quit, they were already alienated from their work or at least not committed to a life of work.  One, a female MBA, said she could never figure out why the men at their workplace . . . were so excited about making deals.  ‘It’s only money,’ she mused.”  So Hirshmann recognizes that women are rejecting current workplace environments for reasons OTHER than just the desire to be home for their children.  But then she ignores that, and, as Amy points out, challenges women to go back to those workplaces and gives advice for how to be successful under the criteria for success that those workplaces establish.

I agree, as I usually do, with Amy.  We’re all called to work, to participate in all sorts of ways in God’s ongoing creation.  Hirshman’s wrong to insist that ONLY the work we do in the paid workforce can contribute to our flourishing, but it’s also wrong to insist that, for women who are mothers, ONLY the work we do at home with the kids can be considered legitimate “work” to contribute to our flourishing.

I agree with your notion that we ought to have more respect for the different possible rhythms in a person’s life.  I’ve often argued that workplaces like law firms could be more productive over the long term if they could balance one contrasting cycle I’ve noticed between men and women.  About the same time that many women who are getting through the most intense early child-raising years have fresh energy to devote to their professional lives, many men are feeling totally burned out from intense career building years and end up careening into mid-life crisis affairs and other unproductive escapades.  I’ve only ever thought about this in terms of law firm productivity, but given this exchange on MOJ, I’m wondering if maybe we ought to also be encouraging men to channel that mid-life crisis energy into parenting their teenaged kids!

Finally, I also do think it’s true that sometimes, out of love, our own individual “flourishing” does have to be sacrificed for others.  I suspect that many of the women that Hirshman is talking to – and many of the ones who seem to have gotten so angry about her article -- did give up their jobs out of love – sacrificing for love of their spouses and their kids.  When they’re confronted with the fact that there is, really and truly, a cost to that sacrifice, they don’t want to accept that.  I think that’s what’s behind some of the vehemence of the reactions to things said in the “mommy wars.”

Thursday, June 22, 2006

Sacrificial Care v. Self-Fulfillment

Pepperdine law prof Joel Nichols responds to our conversation on Hirshman's critique of stay-at-home mothers:

I think that this discussion has understated the primacy of sacrificial caring for others (especially children) as a priority for Christians -- even if that means that we are not able to realize fully other gifts (like intellectual stimulation) that God has granted to usThat is, it seems that what hasn't been sufficiently mentioned in this discussion is that the care and raising of children has strong inherent value in its own right.  Amy alludes to this in terms of human flourishing and values that are different from that of the marketplace (and those otherwise stressed by Hirshman).  But in fact, there is a strong case to be made from the biblical text (esp. the Gospels) that the sacrificial care of children has priority status in terms of God's activity in the world.  It's not taking a break from a person's own self-fulfillment -- and I think not even just fostering some other component of human flourishing -- but that the sacrifical act of fostering the growth and success of other humans is in fact the very essence of what we are called to as Christians.  Put differently, we are building up and allowing for the flourishing of others who cannot do so on their own.  (This is especially true in the Luke's gospel and its understanding of the Kingdom of God breaking in to the present time. . . .)  So I, for one, am quite offended on a theological level when someone like Hirshman (or others) suggests that caring for children is a task that can be easily farmed out to someone else and that women (or men, for that matter) ought to make other values take priority rather than that children.  I think that is squarely out of line with the teachings and values of Scripture.

Now, I realize that this doesn't come close to addressing the gender question you raise below -- and I confess that I don't have a solid answer about gender inequity in the workplace and the effect that has on parents staying at home with children.  At the same time, there is good child development research that indicates that the role and influence of a mother is of primary importance for children until a certain age (I think 9 or 10 if I remember correctly) and that the influence of the father becomes primary in development after that.  That (as well as other data, I think -- though I'm now out of my expertise) would counsel toward the fact that there are in fact, advantages to a mother being the usual primary caregiver for young children [and interestingly, the father for teenagers, but that's another discussion entirely.]  Now, I'm certainly not dogmatic about that, as one of my very best friends is a stay-at-home dad and does a wonderful job with three very young girls, and I'm well aware on a regular basis of the difficult consequences and sacrifices in my household that my wife has made by choosing to stay at home rather than remain in the workplace (and some of the different career choices I, too, continue to make as I take things other than my own career into account as the highest priority).  But it seems to me that there are natural tendencies toward the typical pattern of maternal care-giving at early ages -- and I think that Hirshman's anecdotal evidence actually points to some of those tendencies even as she decries women giving in to them (because she thinks that other values ought to have priority).

Rob

Gender-Based Flourishing: Where are the Stay-at-Home Dads?

I agree with Amy that Hirshman overlooks the widespread judgment by many stay-at-home moms that the workplace is an unlikely venue for authentic human flourishing.  At the same time, I'd be more than a bit naive to insist that the homefront is a perfect venue in that regard.  If part of human flourishing is the development and exercise of the intellect, a full-time gig of diapers and fairy costumes provides a pretty thin gruel.  (How many of us take the opportunity to converse with grown-ups for granted?) 

It seems, then, that we can't respond to Hirshman by portraying the "opt out" revolution as the fullest realization of women's God-given talents.  There is a significant amount of sacrifice involved in terms of the woman's personal development.  Of course, whenever a parent of young children maintains a full-time career there is a sacrifice of personal development in other areas.  It also helps, I think, to maintain a big-picture view: human flourishing must be seen over the course of a lifetime; the fact that the intellect is not pushed to its capacity during the toddler years does not mean that it remains shelved indefinitely. 

So can we agree with Hirshman that a mother's full and authentic flourishing is compromised, to a certain extent, when she remains home with her children, but disagree with Hirshman in pointing out that the self-giving entailed by full-time motherhood promotes another dimension of her flourishing that is not easily realized on the career track?  If so, is the mother's flourishing brought on by her decision to redirect her professional efforts toward her children's well-being of a different quality or degree than the flourishing of a father that would be brought on by his decision to stay home with the children?  If the father (and his kids) would similarly flourish -- and given our concerns about gender inequity in the job market -- should society be encouraging and/or facilitating a stay-at-home dad revolution?  If not, why not?

Rob    

UPDATE: A reader who has decided to enter law school in the fall confesses to wondering whether her decision will compromise her ability to be an effective wife and mother.  She offers this essay, "The Mystery of 'Fair Love,'" by John F. Crosby.  An excerpt:

John Paul thinks that it is the maternal vocation of woman, whereby she can receive a new human being into herself, that disposes her to see the person in others. He says that men need to learn this sensitivity to persons from women. He thinks that all the regions of human life, including the life of the Church, will be vastly enriched when the 'genius of woman' makes itself much more strongly felt within them. This is why he encourages women to become more present with their femininity in society and in the Church. Of course, in accordance with the whole Catholic tradition, he reminds women that their contributions to society and the Church should not be made at the expense of their vocation to maternity. Yet he brings something new out of this tradition by saying that the maternal vocation should not be lived at the expense of these contributions. He wants Catholic women to be first of all wives and mothers, but then also to be bearers of the 'genius of woman' in the contemporary world.

Wednesday, June 21, 2006

The New Biopolitics

Democracy: A Journal of Ideas has launched as a "new progressive quarterly journal," and it may be of interest to MoJ readers.  Its first issue features some interesting pieces, including Duke law prof Jedediah Purdy's article, "The New Biopolitics."  An excerpt:

[A]long with electronic commerce, transnational fanaticism, and increasingly fluid borders, there is a missing piece in the current picture of globalization, one that puts the familiar paradoxes in a new light: biopolitics, the politics of human life and reproduction. Around the world, people are taking control of childbearing in new ways, which could produce serious consequences for global politics. In Europe, Russia, Japan, and South Korea, women are having too few children to sustain the current population. A shrinking workforce means too few taxpayers to support the next generation of retirees. The only obvious solution is greatly expanded immigration–which, recall, is already the source of riots, xenophobia, and deep political anxiety. All this threatens a perfect political storm of bankrupt welfare states, struggles over immigration, and crises of national identity. Meanwhile, in India, China, Taiwan, Pakistan, and Afghanistan, a very different problem is growing. Abortion of female fetuses, along with other causes, has produced a population with roughly 100 million more men than women–men who are a prime constituency of extremist political movements in that volatile part of the world.

The demographic crises of globalization express a deep, troubling question. The crises emerge from hundreds of millions of free choices that earlier generations could not make: whether and when to bear children, and which children to bear. In other words, the two demographic crises express a dramatic new form of freedom, part of the unprecedented control people have gained over their lives in the several centuries of the liberal, modern experiment. The question is whether we have gained more freedom than we can handle.

Rob

Denying "Choice"

Is a woman's choice to stay home with the kids a legitimate choice?  I missed this article, "Homeward Bound," when it was published last fall in The American Prospect, but it has created quite a firestorm.  Linda Hirshman argues that the "opt out revolution," in which well-educated moms are leaving the career track to care for their children, is really a "downward spiral":

The family -- with its repetitious, socially invisible, physical tasks -- is a necessary part of life, but it allows fewer opportunities for full human flourishing than public spheres like the market or the government. This less-flourishing sphere is not the natural or moral responsibility only of women. Therefore, assigning it to women is unjust. Women assigning it to themselves is equally unjust. To paraphrase, as Mark Twain said, “A man who chooses not to read is just as ignorant as a man who cannot read.”

I agree -- and my dishpan hands attest to the fact -- that household work is not the sole domain of women.  But to acknowledge a need for greater labor equity in the home and more support for child care in society is a flimsy basis for insisting that a woman's decision to stay home with young children is somehow delusional or objectively unhealthy.  Two questions for Hirshman: Is paternalism deployed within the rhetoric of feminism still properly called paternalism, or do we need a new label?  And is she really comfortable with the ramifications of suggesting that society must pierce the veil of private "choice" in order to ensure that the human person leads an objectively healthy, flourishing life?

Sunday's Washington Post published Hirshman's observations of the public reaction to her article, and Monday's Post summarized the discussions in the blogosphere.

Rob

Tuesday, June 20, 2006

Homelessness and Personhood

Justin Stec has posted an intriguing new paper, Why the Homeless are Denied Personhood Under the Law: Toward Contextualizing the Reasonableness Standard in Search and Seizure Jurisprudence.  (HT: Solum)  Here's the opening paragraph:

The homeless have questionable and variable access to legitimate private space. They live over time with little consistent unperturbed space to develop and manifest their inner identity in outward actions. They have no free space to experiment, make mistakes, or just “be” themselves, to learn or grow in a comfortable environment. Unlike the homed, the homeless lack liberty in this respect. Physically, the homeless do not have the option to exclude others because they lack the financial capital to barricade their private sphere in a legally recognized manner. As such, their ability to materially and psychologically function as “normal” is reduced and, in turn, their ability to portray “reasonableness” to a judge or third party is lessened. The law categorizes space in a way that augments this phenomenon, rather than disrupts it; law strips the homeless of precious autonomy. In particular, the context of homelessness is not enunciated nor enforced in search and seizure jurisprudence, yielding contextual and abstracted decisions that recapitulate current power schematics, regardless of the intention of lawmakers.

Rob

Reason #143 Why I Don't Give Money to Harvard

Generally alumni newsletters are filled with rosy portraits of a university on the move, desperate for alumni dollars to empower the forward progress.  I received one such newsletter yesterday from Harvard, but the promised progress is headed toward "Brave New World" environs.  The university reports that "after more than two years of intensive ethical and scientific review," Harvard researchers "have been cleared to begin experiments using Somatic Cell Nuclear Transfer (SCNT) to create disease-specific stem cell lines in an effort to develop treatments for a wide range of now-incurable conditions afflicting tens of millions of people."  The "intensive ethical review" resulted in a decision that ova donors will not be paid.  As for the ethical questions surrounding that whole destruction-of-human-life problem, the lead researcher explains that:

"[A]ll human cells, even individual sperm and eggs, are 'living.' The relevant question is 'when does personhood begin?' That's a valid theological or philosophical question, but from the scientific perspective, this work holds enormous potential to save lives, cure diseases, and improve the health of millions of people. The reality of the suffering of those individuals far outweighs the potential of blastocysts that would never be implanted and allowed to come to term even if we did not do this research."

So personhood is a valid theological or philosophical question, but not of concern to science?  Or it is a concern, but can be trumped if the greater good is served?

Rob

Thursday, June 15, 2006

Who's a Person? It Depends on What They Want . . .

Should the substance of political rights be determined before we grapple with the question of moral personhood?  Glen Whitman sees an advantage in doing so. (HT: Volokh)  An excerpt:

1. What beings (adults, children, fetuses, animals, aliens, etc.) are deserving of moral consideration? Call this the question of moral personhood.

2. What political rights, privileges, and powers should beings with moral personhood have? Call this the question of political status.

In intellectual circles, we usually regard moral philosophy as preceding political philosophy. We therefore address these two questions either (a) separately, or (b) in that order. We decide who constitutes a moral person – whose rights or interests therefore deserve consideration – and then we talk about the political status of such persons. But in practical politics, I think people consciously or unconsciously answer these questions using a kind of backward induction, considering political status first and then moral personhood. That is, they begin by asking what rights, privileges, and powers will be accorded to persons within a political system, and then (taking the previous answer as given) they decide who ought to be regarded as a person and to what extent.

Perhaps he is correct that, as a practical matter, the substance of the political rights at issue will affect the public's comfort level with recognizing the moral status of the rights claimant.  But as a matter of principle, letting moral personhood flow from the political status that a given society is inclined to tolerate would turn the moral anthropology upside down.

Rob

Wednesday, June 14, 2006

Schiltz on Motherhood

As a follow-up to Patrick's post, my colleague Lisa Schiltz's paper, Motherhood and the Mission: What Catholic Law Schools Could Learn from Harvard about Women, is available here.  Also note that Lisa has contributed a chapter to an important new book setting forth a view of motherhood that is increasingly counter-cultural, Defiant Birth: Women Who Resist Medical Eugenics.  From the description:

This book tells the personal stories of women who have resisted medical eugenics - women who were told they shouldn't have babies because of perceived disability in themselves, or shouldn't have babies because of some imperfection in the child. They have confronted the stigma of disability and in the face of silent disapproval and even open hostility, had their babies anyway, in the belief that all life is valuable and that some are not more worthy of it than others. This is a book about women who have dared challenge the utilitarian medical model/mindset.

Rob

Tuesday, June 13, 2006

Household Intimacy and the Law

Yale law prof Robert Ellickson has posted his new paper, Unpacking the Household: Informal Property Rights Around the Hearth.  (HT: Solum)  The abstract:

As Aristotle recognized in THE POLITICS, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such.

To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim.

Most households involve several participants and as many as three distinct relationships - that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates.

Rob