The concept of love is not well developed in the law governing adult intimate partnerships despite anodyne pronouncements such as the claim in Obergefell v. Hodges that marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family” (emphasis added). When courts have attempted to operationalize love, they have often done so in offensive or unsophisticated ways, suggesting, for example, that the spousal duty of support includes the obligation to perform nursing-type care “in loving and devoted ministrations,” or that nonmarital partners who admit to being “lovers” are necessarily engaging in an illicit, sexual transaction. In other words, when it is invoked, love—at least in partnered relationships—usually works against the more economically vulnerable partner, who is often a woman. Scholars have primarily pushed back by developing alternative justifications for their desired outcomes, like securing partners’ economic rights through implied partnership or advocating for more careful consideration of partners’ contributions to the relationship. Few have attempted to counteract these decisions by providing an alternative account of love that is more descriptively accurate, normatively justified, and produces improved legal outcomes, despite the widely held intuition that love matters.
James Toomey’s fascinating article, Love, Liberalism, Substituted Judgment, reveals the benefits of careful thinking about how love can impact a particular area of the law, in this case, decision-making on behalf of incapacitated adults. Toomey considers a puzzle lying at the heart of the substituted judgment standard that the law has adopted for cases of incapacity. When individuals can no longer make decisions for themselves, the law directs the surrogate decision-makers to make the decision that the individuals “would have made for themselves if they could.” (P. 1290.) Yet those individuals may have experienced such a significant degree of irreversible decline or change that they can no longer connect their past to present selves, and are therefore not “themselves” in a meaningful sense. What, then, justifies the legal rule that gives decision-makers the ongoing authority to make decisions on these individuals’ behalf? Love, Toomey argues: “the kind of love between adult friends, family members, or romantic partners” involving “(at a minimum) an intimate knowledge of and deep concern for the personal identity of another.” (P. 1292.) Love is the invisible string that connects decision-makers to incapacitated individuals and ultimately ties those individuals to themselves.
One important contribution of Toomey’s article is to intervene in an ongoing debate about the relationship between past and present selves when it comes to substituted decision-making. Rebecca Dresser has argued that substituted judgment is inappropriate in cases of permanent incapacity because the person for whom decisions are being made in the present is fundamentally different than the person who delegated decision-making in the past. Thus, there is no reason to subject the current self to the decisions the previous self would have made rather than decisions in the best interest of the current self. Others have followed Ronald Dworkin in attempting to justify the substituted judgment standard by conceptualizing the current self as an “abstraction of the person’s whole life.” (P. 1291.) (summarizing Dworkin’s argument). Toomey creatively argues that this debate looks different in the context of temporary incapacity, when decisions are made on behalf of a person who is expected to resume the connection to their previous self (after, for example, a psychotic break). In these cases, the person on whose behalf the decision is made will return and will be able to appreciate the decision made on their behalf.
Within the context of temporary incapacity, Toomey argues that the adoption of the substituted judgment standard is justified by the law’s facilitation of acts of love. Toomey notes that the multiplicity of meanings and uses of the term “love” makes it difficult to pin down, so he seeks to distill and provide what he calls a “thin” account: a set of “essential characteristics of the concept of interpersonal love” on which most moral philosophers agree. (P. 1312.) “First, the object of love is the personal identity of another individual person. Second, love requires an intimate knowledge of the other person’s identity. Finally, love requires a relationship of deep concern towards the identity of the person loved.” (Pp. 1312-13.) When we love someone in this way, we seek to advance their identity in the ways they would choose to do for their own sake, based on our familiarity with their life’s story and goals. Toomey argues that this type of other-regarding love justifies the substituted judgment standard because it is consistent with liberalism, the law’s respect for individuals’ determination of their own best interests.
Having argued that love provides a justification for the substituted judgment standard in cases of temporary incapacity, Toomey offers reasons why it should apply in cases of permanent incapacity as well. First, he argues that because of the limits of our current understanding of the human brain, we lack a firm scientific basis to draw categorical distinctions between cases of temporary and permanent incapacity. Thus, substituted judgment is defensible as a prophylactic rule. Second, the standard respects not only the interests of the person for whom decisions are being made, but the interests of the decision-maker. Loving someone means incorporating their story into one’s own. It is “identity-constituting on both sides of the relationship.” (P. 1324.) (I will return to this point in a moment). Third, although some people believe that a person can irreversibly change through cognitive decline, many others believe in the concept of a soul that persists through such changes and even death. A substituted judgment standard grounded in love is consistent with these beliefs, and acknowledging these beliefs is consistent with the law’s embrace of liberalism.
Despite the tidiness of Toomey’s argument, the article still raises provocative and challenging questions. What of the person who exists during the periods of temporary or permanent incapacity? Toomey argues that someone experiencing a psychotic break might philosophically be “no one” because “they remember nothing, and they have no sense of narrative continuity with that self” (P. 1306), such that they cannot be offended by decisions made on their previous self’s behalf. I wonder, practically, whether things are really that black and white. There are certainly scenarios where the law deprives individuals of decision-making authority (e.g., Britney Spears’s conservatorship) where the continuity of identity between the individual’s past and current selves may be partially instead of completely severed.
I also wonder whether the article’s definition of love is unrealistically demanding, even if it is only a “thin” one. Are people capable of making decisions on another’s behalf solely motivated by the idea of advancing the other’s narrative, untinged by their own self-interest? As Toomey notes, the narratives of the lover and loved one are intertwined: you “incorporate, to some extent, their story into your own.” (P. 1325.) In light of this braiding, is it even possible for the decision-maker to establish the narrative distance necessary to recognize the decision that the person would have made? I’ve known plenty of people whose conception of what a loved one would want conveniently benefits them. And what of the significant number of people who will lack people to love them when they become incapacitated? Although Toomey argues that a substituted judgment standard grounded in love can still be applied to the unloved, I worry about embracing a justification that may inadvertently stigmatize lonely or isolated individuals.
These questions are important to ask when extending the teachings of Toomey’s article outside of the surrogate decision-making context. Although Toomey explicitly focuses on love between adults rather than between parents and their dependent children, it is hard not to see the potential parallels and payoffs in that, and other family law, contexts. For example, in recent years, family law scholars have attempted to reframe debates over parental rights around the needs of children. These discussions, which focus on rights and authority, could benefit from a robust scholarly discourse around the nature of love between parent and child, which might, similar to Toomey’s account above, focus in part on the parent’s concern for the personal identity of the child separate from their own. Between adults, love—as Toomey has defined it or as developed in other accounts—could enter conversations regarding whether nonmarital partners should enjoy rights to make decisions on behalf of incapacitated partners, sue for their injuries, and inherit property in absence of a will. Love could also inform whether certain types of contractual commitments—like the advance waiver of financial support obligations—are consistent with the nature of the intimate partnerships, whether marital or nonmarital, or what types of remedies are equitable when relationships dissolve. Toomey’s article, in short, demonstrates how much there is to gain from thinking seriously about love when regulating the family.
