THE APPLICABILITY OF THE INSTITUTIONAL APPROACH

The domestic relationship bears all the hallmarks of an ‘institution’, within the meaning of the institutional approach. As indicated above, it is nested within the social institution of the family, which, as Okin points out, remains ‘an important sphere of distribution of many social goods, from the material to the intangible’.^[660] The link between the domestic relationship and access to primary goods is, indeed, one of the bases upon which Rawls classified it as one of the institutions that constitutes the ‘basic structure of society’,^[661] and there­fore subject to the principles of justice.

It is in this sense that the domestic relationship is a ‘comprehensive’ institu­tion. As discussed in previous chapters, for the comprehensiveness condition to be met, it is not essential that everyone be mandated to participate in the insti­tution. Rather, the institution’s social role in mediating access to basic goods, as well as the degree of influence it does exercise over those who participate in it, are the determining factors. On those parameters, there is little doubt that the domestic relationship qualifies, as a ‘social institution... [that] plays a crucial role in serving as an impersonal source of value that can give meaning to personal choice’.^[662] Furthermore, as Okin points out, even those who have not yet entered, or will not enter, into a domestic relationship are socialised by the norms and expectations that surround it (‘anticipation of marriage’^[663]).

Secondly, for the reasons described above, the domestic relationship is char­acterised by socially and legally created - and reinforced - differences in power: ‘gender-structured marriage is a clear case of socially created and reinforced inequality’.^[664] As Kleingeld spells out:

Marriage as a social institution still largely determined by gender ideology as well as by laws, policies, and institutions that reinforce the traditional patriarchal form of marriage.

It is important to note, too, that these differences in power are not temporary in nature or freely chosen, but are enduring in character and constitutive of the institution.^[666] They are the consequence of a range of factors beyond the direct control or will of individual parties, such as norms and patterns of behaviour, socialisation and legal structures. They are thus distinct from the temporary, variable and freely chosen positions of authority or dependence that might accompany other relationships.^[667] Indeed, Nancy Fraser specifically uses the language of institutions - and the institutional context - to articulate women’s vulnerability within a domestic relationship. As Fraser observes, while comment­ing on the work of Okin:

[W]omen’s traditional responsibility for childrearing helps shape labor markets that disadvantage women; the result is unequal power in the economic marketplace, which in turn reintroduces and exacerbates, unequal power in the family. Women, thus, are rendered vulnerable, first by anticipation of marriage, since the expectation of primary domestic and child-care responsibilities burdens their decisions about educa­tion, training, and degree of commitment to employment.

Indeed, Fraser’s observations come as part of her critique of Carole Pateman’s classification of the marriage contract as constituting a set of individual ‘master/subject relations’. Fraser’s critique is precisely that gender inequal­ity within domestic relationships is better understood as ‘a set of impersonal structural mechanisms that are lived through more fluid, cultural forms’.^[669] This, it will be noted, is exactly the language of the institutional approach, which specifically seeks to replace the concept of interpersonal domination with an institutional one.

Furthermore, the ‘direct personal economic dependence that results from the division of labour within the average family’^[670] has an immediate bearing on another important characteristic of institutions: difficulty - and, in particular, asymmetry - of individual exit.^[671] Indeed, dependence within the domestic relationship and inability to exit from the domestic relationship are mutually reinforcing, ie:

[W]ithin ongoing marriages, increasing economic inequality between spouses reduces the worse-off party’s exit options. This, in turn, leads to power inequality in decision­making, as the less powerful party is less able to protect her interests and consequently becomes even less powerful.^[672]

As Fraser pithily puts it, in the domestic relationship, ‘voice correlates inversely with opportunities for exit’.^[673] Or, to cite a more detailed formulation:

The gendered division of labor and the fact that ‘women’s work’ is less well-paid than men’s together make it more likely that married women, rather than their husbands, will downgrade their careers, choose part-time work, or stay home to facilitate child­rearing or when the spouses’ careers conflict. These choices make women ‘vulnerable by marriage’: economic dependence, and dependence on marriage for benefits such as health insurance, fosters power inequality and makes exit difficult, in turn facilitating abuse.^[674]

The domestic relationship, therefore, is an institution that is comprehensive in nature.

Having established the existence of an institution in all its relevant senses, the next step is to identify the rights at issue. Recall that the institutional approach is a model of bounded horizontality: a private party can enforce rights hori­zontally against another private party only in those circumstances where both parties belong to the institution, and the duty bearer’s institutional location enables them to violate the rights of the rights bearer. It is therefore important to demarcate which rights are sought to be enforced in the context of the domes­tic relationship.

First, the most obvious right that is violated is that of non-discrimination, on grounds of sex. An important distinction must be drawn here: as schol­ars have pointed out, it would be both impossible and counter-productive to

188 Application II: Domestic Relationships and Unpaid Labour require intimate and affective relationships to conform to a standard of absolute personal equality in all their dimensions (and, indeed, individuals in such affec­tive relationships might choose otherwise). What we are concerned with here, however, is gendered institutional inequality, whose source is the difference in institutional power held by the members of a domestic relationship. The viola­tion of equality (in its institutional form) has been exhibited above, and I will not reiterate it here.

Secondly, there is a potential infringement of the right to property, which most, but not all, constitutions guarantee in the vertical form. As has been discussed extensively above, the failure to count domestic work as wage-work, coupled with the fact that legal regimes vest formal title in property only on the basis of financial contribution, results in a situation where marital property is predominantly in the name of the male spouse.

Thirdly, the factors pointed out above make it clear that the institutional imbalances of power infringe the right to livelihood. This flows directly from the structural economic dependency that has been discussed previously in this section. Admittedly, the right to livelihood is not present in vertical form in many constitutions. In some jurisdictions, however, such as India (which will be discussed below), the right to livelihood has been ‘read into’ the right to life, and held to contain, at a threshold level, arbitrary deprivation of livelihood.^[676] In such jurisdictions, for the reasons explained above, the right to livelihood is a prime candidate for horizontal application.

Arguably, unpaid domestic work also implicates a fourth right: that against forced labour. Recall that, in chapter five, while discussing the case of PUDR v Union of India, it had been argued that the word ‘force’ need not be limited to direct and individualised coercion (such as an individual putting a gun to another person’s head). Force can, and often is, structural and institutional in nature (in the PUDR case, it was the ‘mute compulsion of economic relations’ in a market economy). The three reasons adduced above for why unpaid domestic work within a domestic relationship continues to be unpaid also demonstrate how such work falls within the broader definition of ‘forced labour’.

the compelled character of the work - in the sense that PUDR articulated it - does not change by virtue of the fact that the male spouse’s income may be used for family subsistence purposes: its cause is a set of norms, patterns and expec­tations that are themselves constitutive of the social institution of the domestic relationship, and therefore carry an institutional character.^[677]

As Shanley points out: ‘while marriage and divorce laws themselves are now usually drafted in gender-neutral terms, cultural norms and employment prac­tices perpetuate a division of labor at work and at home that results in a system of gender and racial hierarchy’.^[678]

Thus, it is specifically within the context of the institutional approach, with its accounting for impersonal violations of rights, that we can identify unpaid domestic labour within the domestic relationship as forced labour, and propose a horizontal rights framework to mitigate it. Indeed, this argument is not as radi­cal as it might sound. While not using the explicit framing of ‘forced labour’, Satz nonetheless observes, in the context of domestic work in a domestic rela­tionship: ‘It is not enough to allow people to choose if their choices are unfairly constrained by unequal family and workplace structures, unequal pay for equal work, and inadequate social and welfare services which together render so many women vulnerable.’^[679] It will be noticed that this idea of ‘unfree choice’ is, in relevant respects, equivalent to that of ‘forced labour’.^[680]

As a final caveat, it is important to acknowledge that there do, of course, exist domestic relationships where, by mutual agreement, roles and responsi­bilities are distributed on a more equitable basis. The presence of exceptions, however, does not undermine the institutional argument. Furthermore, as we shall see in the next section, legal application and remedies in this domain are flexible enough to account for exceptions of precisely this nature.

IV