Caring for Justice.

• Author: Doran, Tatiana

Caring for Justice. By Robin West.(*) New York & London: New York University Press, 1997. Pp. ix, 356. $35.00.

In Jurisprudence and Gender,(1) her foundational article of a decade ago, Robin West provocatively claimed that women are inherently "connected" while men are "separate" and that women and men are thus fundamentally and essentially different. Nevertheless, West ended her article with a call for a humanist jurisprudence that would transcend the disagreements between masculine(2) and feminist legal theory.(3) In Caring for Justice, West significantly advances the development of a humanist jurisprudence by pursuing a synthesis of justice (which she identifies with masculinity) and care (which she associates with femininity).(4) Unfortunately, Caring for Justice is a compendium of West's previous works, some of which seem out of place in a book titled Caring for Justice and contribute little to either West's specific goal of synthesizing justice and care or her more general continuing goal of establishing a humanist jurisprudence.(5) Because of West's failure to consider the hard cases for her projects, loopholes remain in the synthesis of female and male moralities and in the foundations for a humanist jurisprudence.

I

The theoretical introduction of Caring for Justice presents the purpose of this otherwise potentially unruly collection. West's fundamental point is that the historic exclusion of women from the legal system has damaged "our law, our understanding of the nature of harm and sense of justice" (p. 8) (emphasis omitted). Because of this exclusion, she argues, the current legal system and its underlying theoretical justifications are masculine. To incorporate women's reality into the law, West suggests two fundamental changes to the existing legal system. First, she urges that the private ethic of care, which arises from the traditional female role of caring for intimate relationships, be synthesized with the public ethic of justice in order to sustain both virtues (pp. 22-93). Second, she contends that the idea of "harm" must be reformed to include those harms that women disproportionately and distinctively suffer; although women have achieved formal equality with men in obtaining protection from harms, she argues, the harms that both sexes are protected from today are generally most relevant to men (pp. 94-178).

West explains that most people in our culture, scholars and lay people alike, understand justice and care to be contradictory concepts (p. 23). Justice is associated with the public realm, universality, reason, and rights; care, on the other hand, is associated with the private sphere, particularity, relationships, and affect (p. 23). West argues that this opposition is flawed because care and justice are actually interdependent: Each is a "necessary condition" of the other (pp. 20, 24-25). In fact, West contends that when justice and care are severed, the results are tragic. In the judicial realm, "[s]ome of our most horrendous judicial decisions--decisions easily now recognized as both unjust and uncaring--are so precisely because they fail to respect, in the social relationships they envision, protect, or delimit, the interdependency of these two virtues" (p. 25).

Judges employ an ethic of care, West argues, by being sensitive to the particular litigants and their unique circumstances rather than to the universalizable aspects of cases (pp. 51-52). West points to Hawkins v. McGee(6) and Peevyhouse v. Garland Coal & Mining Co.(7) as two famous cases in which judges breached the ethic of care by wrongly overgeneralizing (pp. 52-55). Because justice cannot exist without care, she contends, such uncaring decisions are necessarily unjust: "The judge in each case essentially compared apples and oranges--treated unlikes as though they were likes--and thus breached the ethic of justice no less than the ethic of care" (p. 55).

Just as care is required for true justice in the public realm, justice is necessary for true care in the private realm. Nurturance without consistency, West explains, leads to racism, xenophobia, and general fascism (pp. 74-88).(8) Polarized nurturance in the law is best exemplified by Plessy v. Ferguson(9) and Dred Scott(10) (p. 75). West explains that the judges in both of...