CONCLUSION
The labour market and the family are two of the most consequential social institutions that structure contemporary life. Indeed, as this chapter has shown, in many ways, power structures in the labour market and in the family reinforce and complement each other.
In the previous chapter, I examined the application of the institutional approach to the labour market by analysing how horizontal rights might work in the context of platform work. In this chapter, I ask whether the institutional approach might have a role to play in mitigating inequalities within the family, and specifically within domestic relationships.Domestic relationships constitute ‘institutions’ within the meaning of the institutional approach (while also themselves being nested within the larger institution of the family). They are comprehensive, create a hierarchy of power between men and women, and impose structural barriers upon exit. This hierarchy of power enables the violation of rights, in particular through the extraction of unpaid domestic labour (which, even today, is performed predominantly by female spouses in many parts of the world). The rights at stake include the rights to non-discrimination and property, to life and livelihood, and against forced labour.
Inequalities of institutional power within the domestic relationship and the consequential violation of rights require multi-pronged solutions. These have included, for example, calls for wages for housework, for the state to fulfil its welfare obligations towards families and for a larger reconstruction of the world of work. Not all of these remedies are rights-based in nature, and the affective character of domestic relationships creates some challenges to transplanting the rights framework to this context. Nonetheless, I argue that the institutional approach may have an important role to play.
One example of this is the distribution of property and claims to property at the time of separation. In many jurisdictions, there is a growing understanding that unpaid domestic work during the course of the domestic relationship must be taken into account at the time of separation. In some countries, this is now mandated by legislation, whereas in other countries, it has been developed incrementally by the judiciary. The institutional approach places this argument on constitutional footing and explains how it mitigates the violation of (constitutional horizontal) rights at issue, as well as helping to break the mutually reinforcing exit/voice inequalities within the domestic relationship.Through illustrative examples from various jurisdictions, we can see the role that the institutional approach might play in the possible situations that were identified in chapter five: as an interpretive aid where there exists only a legislative framework (as in New Zealand); as modifying or altering an insufficient legislative framework by reference to constitutional rights, within the permissible bounds of adjudication (as in Kenya and India); and as a possible source of directly applicable horizontal rights under the constitution (as in Colombia and Kenya).
As in the previous chapter, the institutional approach works best when it is in conversation with existing law, as many of the issues involved are best addressed through legislation or judicial development, and not through direct constitutional rights enforcement. But it is a sign of the flexibility, and importance, of the institutional approach that it can play a supporting and interpretive role where law exists or a direct and leading role where it is absent - as well as a range of roles in between. The aim of this chapter has been to show that whether in the presence or absence of legislative frameworks, the institutional approach has an important part to play in articulating and addressing structural inequalities and rights violations within one of the most ubiquitous institutions of modern society.
In conclusion, it is important to reiterate that the institutional approach - which is an approach of bounded horizontality - operates within specific and limited contexts: identifying an institution where horizontality can place rights and obligations upon private parties located within that institution. The role of the institutional approach comes to the fore in conversation with legislation, in the absence of legislation (or judge-made law) or where legislation has gaps. The principles articulated by the institutional approach also indicate when the absence of a legal framework creates a constitutional issue and set boundary conditions for which potential solutions are acceptable and which are not. For example, in the context of this chapter, a legal regime governing separation that refused to take into account domestic labour at all would violate institutional horizontal rights, and would therefore be an unacceptable solution. Finally, as indicated at the beginning of this chapter, while the arguments here have focused on the domestic relationship, there exist a range of relationships within the family where the prerequisites of the institutional approach are fulfilled. The arguments advanced in this chapter, therefore, can be potentially extrapolated in a similar manner to other relationships within the family as well.