CONTEXTUALISING THE ISSUE
The investigation of the public/private divide as a social construct has been a central theme of this book. The public/private divide, as considered so far, has drawn its dividing line between the domains of the state and the non-state.
The concept itself, however, has had multiple overlapping meanings throughout history. A second, equally consequential distinction has been between the spheres of social production and reproduction[639] - or, as one scholar puts it, between ‘the public realm of politics, law, and the market, on the one hand, and the private realm of family, the household, and intimacy, on the other’.[640] The former is deemed to be the province of justice, while the latter is not.As Carole Pateman, along with many others, has argued at some length, this division is essentially gendered in nature.[641] Its contemporary origins belong to the same historical period (the evolution of capitalism) discussed in chapter one of this book. The concentration of sovereign power within the state, and consequently the imperative to limit the powers of the state, was accompanied by the aforesaid division between the public and the private spheres, with different sets of rules being applied to each.[642] As Seyla Benhabib points out:
As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by non-consensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.[643]
Thus, the political principles (including principles of rights) that were applicable to the public sphere (here, ‘public’ included everything beyond the domain of the domestic) were deemed not to apply to the private sphere.
This was accomplished through ‘various versions of a separation between public or civil authority from the private world of the household’.[644]The arguments for and against excluding the family from the domain of justice have been the subject of extensive debate, and I do not intend to rehearse them here.[645] For the purposes of this chapter, I take it as established that feminist scholarship has displaced any presumption that the family, as a social institution, exists prior to, or outside of, the claims of justice. Needless to say, how and in what form the claims of justice will apply to a particular relationship, or set of relationships, within the family remains to be affirmatively established.
Moving on, the construction and articulation of the public/private divide in this way was both constituted by, and had specific consequences for, work performed within the household in the context of the domestic relationship (excluding domestic work that was contracted out upon a wage-labour basis). Unlike work performed within the formally defined labour market, work performed within the ‘private realm of the family' (and predominantly by women), unless contracted out, was unremunerated. As Sandra Fredman points out, various justifications have been advanced for this over time. First, housework - and, in particular, some of its concrete forms, such as care work - was deemed not to qualify as ‘work' (Pateman observes that it was articulated in the language of ‘nurture'[646]), and therefore not deserving of remuneration. Secondly, such work was deemed to be freely and voluntarily performed (primarily by female spouses), and therefore fundamentally opposed to the wage-work that was performed in the ‘public sphere'.[647] And thirdly, such work was deemed to be performed as part of the ‘family bargain', where the (predominantly male) spouse who worked in the labour market earned the wages for the sustenance of the family unit, while the work within the domestic relationship, which enabled the (predominantly male) spouse to work in the first place, remained unwaged.[648] The co-constitutive evolution of the public/private divide, and its gendered character in terms of work, is summed by Silvia Federici in the following way:
With the demise of the subsistence economy that had prevailed in pre-capitalist Europe, the unity of production and reproduction which has been typical of all societies based on production-for-use came to an end, as these activities became the carriers of different social relations and were sexually differentiated.
In the new monetary regime, only production-for-market was defined as a value-creating activity, whereas the reproduction of the worker began to be considered as valueless from an economic viewpoint and even ceased to be considered as work. Reproductive work continued to be paid - though at the lowest rates - when performed for the master class or outside the home. But the economic importance of the reproduction of labor-power carried out in the home, and its function in the accumulation of capital became invisible, being mystified as a natural vocation and labeled ‘women’s labor’. In addition, women were excluded from many waged occupations and, when they worked for a wage, they earned a pittance compared to the average male wage. (emphasis added)[649]This brief history is no doubt reductive in some respects. There is evidence that specifically in the early years of the Industrial Revolution, both the male and the female spouses worked in the labour market (especially in factories, and in paid domestic work), although this did not prevent the primary burden of domestic work from continuing to fall upon the female spouse (with the burden inequitably distributed along class lines as well).[650] Similarly, at the time, wage-work was sometimes performed within the home (such as put-out work, ie work sub-contracted and performed from an individual’s home), and often by women.[651] The above history also assumes the predominance of the nuclear family unit, as opposed to larger - or joint - families, where the allocation of domestic work may have followed a different pattern. While it is important to acknowledge these features, I believe that they do not, ultimately, detract from the limited point that I make here: that is, to establish the link between the public/private divide (as articulated in this chapter), and the ubiquity of unwaged and gendered character of domestic work, performed within a domestic relationship.
For quite a few decades, however, these assumptions have been contested.
Philosophically, as pointed out above, the concept of the public/private divide upon which unwaged domestic labour rests has been challenged. It has been demonstrated to be historically contingent and socially and legally constructed, rather than ‘natural’.[652] Conceptually, it has been argued that it is only domestic work that enables, or ‘frees up’, male spouses to participate in the labour market. Waged labour, therefore, is in a very basic sense dependent upon the unwaged labour within the domestic relationship.[653] This relationship between gendered household labour and gendered disparity in workforce participation has been demonstrated empirically as well.[654] Also empirically, the contribution of domestic work, in real terms, to countries’ gross domestic product has been estimated to be very substantial.[655] Finally, it has been demonstrated that even in societies where ‘traditional’ gender roles have begun to break down to greater or lesser degrees, the increased participation of women in the labour market has not led to a more equitable division of work responsibilities within the domestic relationship, leading to what is now commonly known as ‘the second shift’.[656] Multiple reasons have been identified for this, which go back to the original ‘gendering’ of the private sphere, discussed above. As Shanley points out, for example, when considering the social construction of the ‘ideal worker’:Employment practices... [have] developed around the sexual division of labor. Jobs were designated ‘male’ or ‘female’, and men’s jobs tended to pay higher wages than women’s... although discrimination against women in the workplace has diminished, the ideal worker model continues to affect both decisions to marry and the dynamics within marriages... the difference in wage-earning capacity between men and women gives men more resources with which to deal with the world, and this in turn affects dynamics within the family...
Because many jobs are sex segregated, and wages for men’s jobs are higher than those for women’s, it will make economic sense in some families for the husband to work full time and his wife to do the caregiving.[657]The gendered character of the public/private divide, with the bulk of domestic work continuing to be performed by women, persists worldwide even today.[658] It has also received judicial attention. As the US Supreme Court observed as recently as 2003:
Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees.[659]
On the basis of all the arguments advanced above, it is evident that the question of unwaged domestic labour is one of public and political justice: the arguments that would seek to relegate it to a ‘private’ issue, beyond the scope of the norms of justice, have been proved to be lacking in all relevant respects. For the purposes of this chapter, however, something more needs to be done. It needs to be shown, first, that the domestic relationship is a fit case for the application of the institutional approach; and secondly, that the political injustice of unwaged domestic work can be mitigated through a coherent and persuasive model of horizontal rights, enforceable within the domestic relationship. That is the burden of the next two sections.
III.