The deadline for proposal submissions has been extended to Monday, January 20, 2020.
We are pleased to announce a workshop commemorating the publication of one of Professor Martha Albertson Fineman’s most influential books –The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (1995). Twenty-five years after its publication, The Neutered Mother continues to exert a powerful influence on critical and feminist legal studies, as well as the social sciences and humanities at large. We warmly invite a range of scholarly, pedagogical, critical, and creative responses to this important book, as well as reflections upon how it has shaped work on the family, as well as individual autonomy, dependency, vulnerability and the vulnerable subject.
Calling for nothing less than a radical reform of family law and a reconceptualization of intimacy away from “sexual affiliation” and marriage,toward dependency and caretaking, The Neutered Mother argued against existing legal and social policy discussions privileging the marital family. In doing so, it scrutinized the definitions of “family” and “mother” in both popular and legislative circulation, while contesting society’s refusal to support and respond to the needs of caregivers. This book offered a crucial step toward redefining America’s most pressing social policy problems arguing for the development of a theory of collective responsibility for dependency, as well as re-envisioning the social institution of the family.
The analysis of implications of dependency continued in The Autonomy Myth, A Theory of Dependency published a decade later. In that book, Fineman argued that those charged with administering U.S. social policy have long considered the marital family household as both separate and self-sufficient at the cost of the well-being of actual families and their children. In a paradigm-shifting move, Fineman challenged the liberal vision of autonomy and independence that fuels an ideal of self-sufficiency. Foregrounding the “inevitable dependency” that all experience at various stages in our lives, as well as the “derivative dependency” that arises because caretakers need resources to effectively do the work of care, she showed institutions beyond the family have an inescapable and vital role to play in the reproduction of a just society.
These earlier works argued for the centrality of dependency and caretaking, laying the foundation for the current focus on “embodied” and “embedded” vulnerability. Fineman explores how our embodiment necessitates dependency on social institutions throughout the life course. The implications of embodied vulnerability suggest an inevitable inequality in social relations and urges moving beyond equality and discrimination as paradigms to address social justice and the role of social institutions and relationships in the reproduction of a just society.
The workshop will be organized into panel sessions engaging with these two books, as well as sessions on vulnerability theory and the concept of the universally “vulnerable subject” to replace the liberal legal subject in defining what constitutes a “responsive state.”
We are interested in a broad range of approaches and scholarly reflections on the impact of these works and the ideas and concepts they advance.
Submissions Procedure: Email a proposal of several paragraphs as a Word or PDF document by January 20, 2020 to Mangala Kanayson (mkanays [at] emory [dot] edu).
Chapter from Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations
“I. STRUCTURING INTIMACY
Core assumptions inherent in our current social and cultural narratives about the family as an institution have tremendous significance in the political and legal definition of the family and, hence, for the fate of mothers. The legal story is that the family has a “natural” form based on the sexual affiliation of a man and woman. The assumption that there is a sexual-natural family is complexly and intricately implicated in discourses other than law, of course. The natural family populates professional and religious texts and defines what is to be considered both ideal and sacred. The pervasiveness of the sexual-family-as-natural imagery qualifies it as a “metanarrative”—a narrative transcending disciplines and crossing social divisions to define and direct discourses. The shared assumption is that the appropriate family is founded on the heterosexual couple—a reproductive, biological pairing that is designated as divinely ordained in religion, crucial in social policy, and a normative imperative in ideology.
The dominant component of the metanarrative—that the family is sexual—means that the family is experienced as an institution of primarily “horizontal” intimacy, founded on the romantic sexual affiliation between one man and one woman. Intergenerational relationships—vertical lines of intimacy—may be temporarily accommodated, such as when children are “underage,” or uncomfortably maintained, such as when an ill, elderly parent has to be fitted into the sexual family. The dominant paradigm, however, privileges the couple as foundational and fundamental. Children achieve adulthood and go on to form their own discrete, primary, horizontal and sexual connections, drawing boundaries between this new unit and their childhood families. Parents are shipped to nursing homes or eventually die, and the sexual family reverts to its natural state.
The image of horizontally organized intimacy is a crucial component of contemporary patriarchal ideology in that it ensures that men are perceived as central to the family. Politicians, as well as religious leaders, extol the marriage relationship as sanctified, the core of the family. Alternatives to the nuclear family are cast as threatening and dangerous to society, destructive to cherished values. In addition, marriage is constructed as essential, not only to the foundational relationship of the nuclear family but to the very basis of society itself. As Chief Justice Waite wrote over a hundred years ago in a case condemning plural marriage: Marriage, which from its very nature is a sacred obligation, is . . . a civil contract, and usually regulated by law. Upon [marriage] society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal (Reynolds v. United States 1878, pp. 165-66).
As this quote illustrates, in our society, marriage has historically been so venerated as to become a “sacred” institution, the archetype of legitimate intimacy. In popular culture, sexual expression (particularly heterosexual expression as traditionally realized through marriage) is portrayed as the indication of maturity, completeness, success, and power. Historically, deviance from the formal heterosexual paradigm of marriage has brought with it condemnation in the discourses of psychology, social work, and medicine. In law, marriage traditionally has been designated as the only legitimate sexual relationship.
States have punished extramarital sexual relationships through laws making cohabitation, fornication, and adultery criminal (Fineman 1981). Contemporary laws and prosecution policies in some states continue to treat these configurations as illegal or extralegal and, therefore, deserving of criminal and/or civil sanction (Fineman 1991). The nuclear family remains the only form universally protected and promoted by our legal institutions. However, the law has been altered somewhat in response to changing patterns of behavior, offering at least the promise of a more relaxed and expandable legal model of the family. Nonmarital sexual behavior has been decriminalized in many states in recent years. So-called “alternative” family arrangements have even been afforded some specific affirmative protections in several states and municipalities that recognize them as having quasi-family status for some limited purposes.
These legal changes reflect and reinforce challenges to the hegemony of the nuclear family and are part of an “evolutionary dialogue” associated with cultural negotiation. The social changes upon which they are based have not proved to be revolutionary, however. To a large extent, the new visions of the family merely reformulate basic assumptions about the nature of intimacy. They reflect the dyadic nature of the old (sexual) family story, updating and modifying it to accommodate new family “alternatives” while retaining the centrality of sexual affiliation to the organization and understanding of intimacy. This process of reiteration and reformulation reveals the power of the metanarrative about sexual affiliation and the family. The paradigm structures and defines the rhetoric and directs the debate about alternatives.
While a great deal of emotionally charged rhetoric in family law is directed at children, the primary focus is still on maintaining the traditional heterosexual family model. In the rhetoric of those espousing children‟s rights, children‟s problems are deemed to be created by the fact that they are “trapped” in a “deviant” family situation, “prisoners” or “victims” of a family that is often “broken” through divorce or “pathological” in that it was never sanctified by marriage. Attention and concern initially directed at children too often is deflected to the adults with whom they live who have failed to form or maintain a sexual connection. The sexually affiliated family is the imposed ideal and, as such, it escapes sustained, serious consideration and criticism. The nuclear family is “natural”—it is assumed. The dominance of the idealized sexual family in social and legal thought has restricted real reform and doomed us to recreate patriarchy.
As a result, and in spite of the real and perceived ideological shifts in what is socially and legally considered to be an acceptable family formation, single motherhood can comfortably continue to be considered deviant. It is deviant simply because it represents the rejection of the primacy of the sexual connection as the core organizing familial concept. In fact, the threat in its practice is implicit in the language we use to discuss the status. The very label “single mother” separates some practices of motherhood from the institution of “Mother” by reference to the mother‟s marital situation. Mother, as constructed and defined in the discourses about “single” mothers, is modified by her relationship (formal and legal) to the father—she is single. By contrast, the institution of motherhood when practiced in its “normal” form is not analogously modified. No one speaks of a “married mother”—the primary connection of husband and wife is assumed in the unadorned designation of “Mother.”
It is only the “deviant” form of motherhood that needs qualification and, by implication, justification. Furthermore, in this process of distinguishing the deviant variation of motherhood from the married norm, a complementary cluster of stereotypical designated family roles are also resolved. Husbands and wives, as well as mothers and fathers, are created by the nuclear family. These roles are valued according to contemporary images of the ideal family.
That the relationship between women and men has been at the core of our perception of family is evident when we see how it has defined other family members. For example, the historic characterization of children as “legitimate” or “illegitimate” depended on whether their parents were married. While children of unmarried parents are more apt today to be labeled “nonmarital,” the focus is still the same—the child is defined by the relationship between the parents. The privileging of the sexual tie stands as an eloquent statement about our understanding of the nature of family and intimacy. It also impedes the development of solutions to real family problems. One negative consequence flowing from the obsession with sexual affiliation, for example, is that in both policy and reform efforts the inevitable focus seems to be on “doing justice” between sexually affiliated adults. Given the contemporary hostility between the sexes and the status of equality as the dominant legal framework for discussions about fairness and justice, the potentially divisive effects of this focus are apparent. As we face high divorce rates and the organization of women and men into gendered interest groups when confronting issues of intimacy, we should not be surprised that legal rules are considered prizes by competing factions. Law provides an arena for public, symbolic (as well as real) competition between groups of women and groups of men.
Furthermore, in the process of regulating intimacy, the coalescence of antagonistic interests along gendered lines is probably inevitable. The sexual family represents the most gendered of our social institutions, and this remains true even after decades of an organized women‟s movement. While other, nonfamily transformations have fostered male-female competitiveness, the family is the one area where tensions generated by perceived changes in the status and position of women are registered most clearly.”
Fineman, Martha Albertson, The Sexual Family. FEMINIST AND QUEER LEGAL THEORY: INTIMATE ENCOUNTERS, UNCOMFORTABLE CONVERSATIONS, M.A. Fineman, J. E. Jackson, and A. P. Romero, eds., Ashgate, 2009; Emory Public Law Research Paper No. 09-74. Available at SSRN: https://ssrn.com/abstract=1516635
“The vulnerability of our embodied beings and the messy dependency that often comes in the wake of physical or psychological needs cannot be ignored throughout any individual life and must be central to theories about what constitutes a just and responsive state. The concept of vulnerability reflects the fact that we all are born, live, and die within a fragile materiality that renders all of us constantly susceptible to destructive external forces and internal disintegration.
Vulnerability should not be equated with harm any more than age inevitably means loss of capacity. Properly understood, vulnerability is generative and presents opportunities for innovation and growth, as well as creativity and fulfillment. Human beings are vulnerable because as embodied and vulnerable beings, we experience feelings such as love, respect, curiosity, amusement, and desire that make us reach out to others, form relationships, and build institutions. Both the negative and the positive possibilities inherent in vulnerability recognize the inescapable interrelationship and interdependence that mark human existence.
The state and the societal institutions vulnerability brings into existence through law collectively play an important role in creating opportunities and options for addressing human vulnerability. Together and independently institutional systems, such as those of education, finance, and health, provide resources or assets that give individuals resilience in the face of our shared vulnerability. A responsive state must ensure that its institutions provide meaningful access and opportunity to accumulate resources across the life-course and be vigilant that some individuals or groups of individuals are not unduly privileged or disadvantaged.
I. “Elderly” as an Identity
In 1935 the United States adopted a Social Security system that encompassed several social welfare and social insurance programs for those deemed unable to work to support themselves, including the “elderly.” Comparatively, economic relief for this group came late to the United States. In the 1880s, Germany enacted health, accident, and old-age legislation, and other European countries developed similar programs quickly thereafter: Denmark in 1891, Belgium in 1900, New Zealand in 1898, Austria in 1906, France in 1910, Australia in 1908, the United Kingdom in 1908, and Sweden in 1913. The American program was the result of substantial agitation and political organization on behalf of the elderly who had suffered greatly during the Great Depression. Although there were and are great similarities in old-age policies developed across these nations, consistent and significant differences in the quality and scope of programs also have been noted, with the United States ranking in the bottom of the comparison. At the time that the 1935 legislation was enacted, elderly persons (age sixty-five and older) encompassed the poorest demographic group in the United States, but subsequent increases in benefits and the provision of Medicare have resulted in the poverty rate for the elderly falling below that of other age groups. Today, traditional measurements of poverty assess the elderly at only a nine percent poverty rate as compared to adults eighteen to sixty-four years old (fourteen percent) and children (twenty-two percent). Recent reconsideration of how to measure poverty levels altered those rates considerably, because researchers have taken into account factors like medical expenses and benefits such as food stamps. Researchers using the alternative measures have recalculated the poverty rates at fourteen percent for the elderly, thirteen percent for adults between the ages of eighteen and sixty-four, and fifteen percent for children. The drop in child poverty is the result of taking into account the range of social welfare programs that target children, while the increase for the elderly is partly explained by their higher medical costs. This recent reconsideration also suggests that governmental provision of services and programs, such as housing and food stamps, can be just as important as the direct provision of economic benefits to individuals and families. Social Security provides a significant percentage of financial support for many Americans: thirty-nine percent of income for all elderly, and forty-nine percent of income for elderly women. The gender implications mark Social Security reform as warranting serious attention for those concerned with balancing family and work, and the toll that family caretaking has on ultimate wage and career successes, as well as growing income and wealth inequality more generally. Perhaps most significant for the current debates around the future of Social Security is the fact that the United States, unlike its peer nations, does not have a general universalized social welfare system. Our social welfare policy begins with an ideologically based premise that individuals are responsible for their own welfare and imposes expectations of self-sufficiency and independence on rich and poor, advantaged and disadvantaged alike. There is no general guarantee of housing or food, and until recently (and perhaps not for long) no right to health care, or access to jobs or higher education. Although old-age assistance is virtually universal, and eligibility is based on chronological age, other social welfare programs tend to be need-based and means-tested. Unlike the rest of society, the elderly have a baseline or floor of income security, which is complemented by access to health care through Medicare and/or Medicaid. Within the United States, the elderly are thus privileged with regard to eligibility standards and access to wage support programs. Importantly, because old-age assistance was not means-tested, the New Deal old-age provision has been largely provided without the stigmatization of dependency that so facilely attached to poverty programs over the past several decades. The accusations of deviancy and pathology that were leveled at poor single mothers and their families during the decade leading up to the welfare reforms of 1996 have not yet been applied to the elderly. This does not mean that there are no accusations associated with old-age assistance, however. Political legitimacy for the Social Security system was and continues to be based on both negative and positive assumptions applied to the elderly as a group. The negative and positive assumptions associated with Social Security and the elderly are wide-ranging and diverse. The negative assumptions revolve around capacity and capability, with images of the elderly as inevitably in “need” due to assumed physical and mental limitations that make employment unlikely and poverty therefore probable. The positive assumptions cast Social Security and Medicare benefits as deserved, flowing from the “contributions” the elderly have made throughout their lifetime. Social Security has historically been viewed as a form of social insurance, and the assertion was that having engaged in paid labor and contributed to Social Security over many years meant that the benefits were earned. Both sets of assumptions have been undermined by changes in national fortune and demographics, as well as shifting attitudes about the deserving nature of the elderly. Assumptions about the lack of employment and susceptibility to illness or disability specifically for the elderly as a group have been challenged by a variety of factors. Improved health, long life expectancy, and more flexible employment practices reversed the earlier retirement trend of the 1980s for a significant number of workers. Today, more Americans are working into old age, a development that was facilitated by changing laws. The Age Discrimination in Employment Act of 1967 originally prohibited discrimination against those workers forty to sixty-five years of age. It was followed by re-visions in 1978 that raised the upper age limit to seventy, which was further revised by removal of any upper limit in 1986. Other changes to existing laws provide the elderly impetus to work well into their later years. For example, the desire for many of the elderly to work past retirement age was facilitated by changes to Social Security, such as the elimination of a reduction in benefits if an individual recipient continued to work. The name of that legislation—The Senior Citizens Freedom to Work Act—reflected the reality that many individuals were not ready to leave the workforce in their mid-sixties. Not all of the elderly welcome options for longer participation in the paid workforce, of course. Improvements in the position of some older persons, however, have been the basis for reconsideration of the need of the elderly as a group. For example, there have been changes in the eligibility age for retirement. In addition, general economic conditions have led to longer workforce participation. The Great Re-cession of 2008 provided a powerful incentive for many to stay in the workforce. Losses in the value of home equity and retirement funds made the possibility of retirement remote for many. Thus, in a variety of ways, the relationship between old age and the ability to work has changed. Unfortunately, not all of the negative assumptions about diminished capacity have disappeared. The idea that Social Security is a form of social insurance with benefits earned and thus deserved has also been called into question. Not only are recipients charged with receiving more in benefits than they paid into the system, but the younger workers who are seen as supplying the funds for those benefits are viewed as unlikely to reap the same rewards when they retire. In response to these perceptions, recent debates about Social Security include various suggestions for privatization and means testing. These debates have set up a generational divide, and both popular media and political discourse create a dichotomy between “young-specific” and “old-specific” benefits and interests. The retirement of the baby boom generation is of particular concern, and the very size of this cohort has generated alarm and recast the terms of debate. In particular, there are accusations that this generation is a threat to the larger society’s well-being because it is unfairly commandeering current and future assets. The retirement of the boomers will cause a significant amount of economic and social problems for the next generation. The image of the elderly has devolved from those who have contributed, and thus are deserving, to those who are greedy and destructive.”
“I. INTRODUCTION Feminist legal theorists can legitimately complain that most mainstream work fails to take into account institutions of intimacy, such as the family. Discussions that focus on the market, for example, typically treat the family as separate, governed by an independent set of expectations and rules. The family may be viewed as a unit of consumption, even as a unit of production, but it is analytically detachable from the essential structure and functioning of the market.
Similarly, when theoretical focus is turned to the nature and actions of the state, the family (if it is considered at all) is cast as a separate autonomous institution. Of course, the state may explicitly address the family as a site of regulation or policy, but in non-family contexts, the extent of societal reliance on the family is un- or undertheorized. There is little recognition that policy discussions about economic and social issues implicitly incorporate a certain image of the family, assuming its structure and functioning.
Likewise, theorists who focus on the individual seem to deny the family any potential relevance or theoretical significance in their work. Jurisprudential constructions of justice or liberty, for example, consider the individual as the relevant unit of analysis. The implications of the fact that individuals exist in family or relational contexts are largely ignored. It is no surprise, therefore, that little attention has been paid to how assumptions about the family affect the theories expounded in regard to market and state or the nature of the individual. Few theorists recognize just how reliant their particular visions of the word-as ‘Just,” “efficient,” “natural,” or “empirically based”-are on the consensus that the family is the institution primarily responsible for dependency.
This reliance on what I have termed the “assumed family” distorts analysis and policy. The assumed family is a specific ideological construct with a particular population and a gendered form that allows us to privatize individual dependency and pretend that it is not a public problem. Furthermore, the gendered nature of this assumed family is essential to the maintenance and continuance of our foundational myths of individual independence, autonomy, and self-sufficiency.’ This assumed family also masks the dependency of society and all its public institutions on the uncompensated and unrecognized dependency work assigned to caretakers within the private family.
In economic and other important public policy discussions, we focus on the appropriate relationship between market and state, with the family relegated to the “private” sphere. Discussions proceed as though the policies that are designed to affect these institutions in the public sphere have only few implications for the unexamined private family. Even more fundamental, the discussions fail to grasp the fact that the actual (as contrasted with the assumed) family might profoundly affect the possibilities of success and failure of policies created for the market and the state.
II. PUBLIC AND PRIVATE CONCEPTS To point out the neglect of the family in legal and policy theory differs from concluding that the family has been considered an unimportant institution. In fact, the importance of the family is asserted in its very segregation from other areas of human endeavor. This separation is exemplified in the often repeated characterization of family law as one of three separate pillars of civil society-the other two being property and contract. The division of the world (and law) into “public” and “private” realms also manifests the dual conceptualization of the family as both separate and as essential.
Not only is the family perceived as occupying the private sphere, it is also conceptualized as embodying values and norms that are very different from the institutions occupying the public sphere, particularly those of the market. Family relationships are cast as different in function and form than relationships existing in the public world. Families are altruistic institutions held together by bonds of affection. Of course, any serious consideration of the family reveals that it is a very public institution, assigned an essential public role within society. The family is delegated primary responsibility for dependency.
In this Article, I will bring into view the family, or more explicitly, the dependency hidden within the assumed family. Policy development and social theory considerations should center on assessing the appropriateness of the aspirations and expectations we have for the family. This assessment is crucial to one of the most compelling problems facing society at the end of the Twentieth Century-the increasing inequitable and unequal distribution of societal resources and the corresponding poverty of women and children.”
Fineman, Martha Albertson, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency (2000). American University Journal of Gender, Social Policy & the Law, Vol. 8, No. 15, 2000; Emory Public Law Research Paper, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2132294
“I. The Separate Sphere Society has devised special laws to apply to the family. The unique nature of these rules has been justified by reference to the family’s relational aspects and intimate nature. In fact, “family law” can be thought of as a system of exemptions from the everyday rules that would apply to interactions among people in a non-family context, complemented by the imposition of a set of special family obligations. Family law defines the responsibilities of members toward one another and the claims or rights they have as family members. Family law literature typically focuses on how to use law to redefine, reform, or regulate intra-family dynamics.
But family law does more than confer rights, duties, and obligations within the family. It also assumes and reflects a certain type of relationship between family and state. During the nineteenth century this relationship was typically cast as one of “separate spheres.”‘ Family (the private sphere) and State (the public sphere) were perceived as largely independent of one another. The metaphor of separation captured an ethic or ideology of family privacy in which state intervention was the exception.
The characterization of the family as distinct and separate from the state still resonates in our rhetoric about families. The family is designated the quintessential “private” institution. Family is distinguished from both the market (a chameleon institution, public vis-a-vis the family but “private” vis-a- vis the state) and the state (the quintessential public institution) by its privateness. For the modem private family, protection from public interference remains the publicly stated norm-state intervention continues to be cast as exceptional, requiring some justification.
What are the contours of the family that are protected by privacy? Historically, it was a reproductive unit-husband, wife, and their children-complemented by other household members like apprentices, servants, or extended family members. Today there is much less agreement about just who should be considered “family.” The traditional core of husband and wife, with or without children, seems to qualify in all definitions. In fact, many people consider this reproductive family to represent the “natural” form of the family. Some argue further that the reproductive family should be considered an exclusive vision of the family in terms of policy and law.
This nuclear unit is thought to be in “crisis” because of the tendency of many marriages to dissemble and dissolve. Some people claim that society is also in a state of crisis as a result of marital instability. Many are concerned by the assembling of “deviant” and competing intimate entities claiming entitlement to the benefits and privileges previously extended to marriage.” The family has become the symbolic terrain for the cultural war in which our society is increasingly mired. If one believes the family is not inherently limited to any essential or natural form, but is as contrived as any other societal institution, it affects one’s perspective of the relationship between state and family. The metaphor of “symbiosis” seems more appropriate than the separate spheres imagery: the family is located within the state. In this conceptualization, family and state are interactive; they define one another. Alterations in the scope or nature of one institution will correspondingly alter the scope or nature of the other. Although law initially defines the family by controlling entry and determining the consequences of its formation, once formed, the family is a powerful constituency within the state. The expectations for the family relieve the state of some obligations. Family actions (or inactions) can place pressure on the state and require adjustments and accommodation that alter the nature of the state. The family will demand resources, and the more favored the family is, the more pressure from outsiders to the institution demanding entry.
If this model of the family-state relationship is accurate, it has important implications for public policy. First, it indicates that the relationship between family and state is not fixed-it is potentially dynamic. Second, it illustrates that the family is not a natural entity with a form that is constant and essential – it is a societal creation. Family and state can be reconfigured, and have been reconfigured, to reflect different sets of expectations and aspirations for both. This suggests that society would benefit from periodic self-conscious considerations about the continued viability and desirability of historic assumptions about the family as an institution.
II. Expectations for the Private Family In recent work, I have been rethinking the arrangement between family and state by articulating a theory of collective responsibility for dependency. The objective is to make an argument for the redistribution of responsibility for dependency among what I call the “coercive institutions” of family, state, and market. Our current (and historic) stated national ideology glorifies self-sufficiency and independence, both for the individual and for the family. Within this ideology, the primary responsibility for what I have previously labeled “inevitable dependency” is placed on the family. Dependency, which is seen, at least partially, in many other systems as a collective responsibility, is privatized in ours through the institution of the family. In our late capitalist system the state is perceived as having a role only in the case of family default. In such instances, the state might provide highly stigmatized assistance, such as welfare for those deviant families unable to provide for their members’ needs. By contrast, market institutions have little, if any, direct responsibility for the family, even for the families of their own workers.
My argument is that a more appropriate and equitable scheme would more evenly distribute the burdens of inevitable dependency, with the market as well as the state assuming some up-front shares of the economic and social costs inherent in the reproduction of society. There is also a need for structural changes and institutional accommodation of the demands of caretaking. Dependency work produces things of benefit to society in general. It is the labor that generates citizens and workers, consumers, and voters. As things are now structured, the costs of doing dependency work are hidden in the family, in which, due to gendered role divisions, they are borne primarily by women. Further, this caretaking labor, which is performed for the good of the society, has individual costs for caretakers who often find themselves sacrificing career development, forgoing economic opportunities, and becoming derivatively dependent upon others for resources in order to accomplish their tasks.
One conceptual problem with the idea of collective responsibility is that it opens the door to a corresponding argument that assumption of such responsibility must be accompanied by collective control over the circumstances leading to dependency. If society has obligations to subsidize and support caretakers because there is a collective responsibility for dependency, then some will argue that society should have a correlative right to control intimate decisions that produce or affect dependency, including decisions concerning reproduction or related issues of family formation and function.
In addressing this assertion about the appropriateness of collective control a reconfigured concept of “privacy” will be useful. In regard to our current social scheme, we use some notion of privacy to give the very idea of family some coherence. We perceive a line of privacy drawn around certain intimate units, that distinguishes them as “family.” The privacy line defines the relationship of individuals within the family entity and mediates their relationship to the state. They are placed in the special category of family. This line of privacy, although it currently shields few entities beyond the traditional family for most purposes, could be drawn around caretaking or dependency units.
In fact, rethinking our ideas about dependency and self-sufficiency mandates a corresponding reconsideration of other assumptions about the family as an institution and a reconceptualization of the family’s relationship with the state. As part of this process, the question arises whether we can “modernize” the concept of family privacy, making it a complement to our restructured vision of the family. This will involve looking at both intra-family ties and the position the family occupies within the state.
The task of reconfiguring privacy has two related components: (1) a shift in our understanding as to what privacy attaches-privileging family function and not family form-and (2) the development of the idea of family privacy as an entity-based entitlement to self-government or autonomy. Thus conceived, privacy would not be a right to separation, secrecy, or seclusion, but the right to autonomy or self-determination for the family even though it is firmly located within a supportive and reciprocal state.
After an initial disclaimer about my constitutional law prowess, I distinguish in the pages that follow family privacy from constitutional, individual based privacy. Recognizing the typical critiques of family privacy, I argue that we must think beyond the historic manifestations of the concept. My construction of family privacy is more ideological than doctrinal, and is dependent on (and essential to) the revisioning of family along functional lines.”
Fineman, Martha Albertson, What Place for Family Privacy? (June 1, 1999). George Washington Law Review, Vol. 67, 1999; Emory Public Law Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=2103306
“On January 19, 2013, an article written by Michael Schulman in the New York Times highlighted the increasing sexual and gender diversity of students in many universities across the United States. Entitled “Generation LGBTQIA,” Schulman described how the more “traditional” lesbian, gay, bisexual and transgender (LGBT) grouping has been augmented by students seeking new terms and categories to express diverse understandings of sexuality, gender, physical bodies, and evolving identities.
The “Q” in LGBTQIA can refer to questioning—indicating an individual who does not clearly identify with existing categories or who is in the process of exploring their sexual and/or gender identity. “Q” can also indicate “queer,” a term that was re-appropriated and reclaimed by activists in the 1990s and is sometimes used as an all-inclusive umbrella term, as well as referring to an academic perspective of inclusion. “I” indicates “intersexual,” someone whose anatomy is neither male nor female. The addition of “A” can stand for “ally,” indicating a friend of gay rights, and often a person who identifies as heterosexual. “A” can also connote “asexual,” representing those who are celibate or chaste, and perhaps even those who have low libidos.
Schulman also described a student group recently created at the University of Pennsylvania that found even the expansive LGBTQIA grouping inadequate. Focusing on gender variations, the group is called Penn Non-Cis, short for “cisgender,” a term described as denoting someone whose gender identity matches his or her biology.” In the article, bi-gender was used to refer to an individual with both traditional masculine and feminine qualities—the term was seen as more fluid than the designation of transgender, yet less vague than “gender queer.”
This creation of new terms and categories of sexual identity and gender expression is an exciting example of how human beings can intentionally create nurturing social spaces in which to foster community and a sense of belonging. These students are accomplishing this by rejecting existing categories and moving away from static identities. They also seem to recognize that although biology, sex, sexual difference, and gender are different inquiries, to a large extent, they must be studied together and in relation to each other.
The amalgamation of interests and creation of alliances with people across differences reflected in “Generation LGBTQIA” is also an effective political strategy. The students have varied individual sexual and gender identities, but emphasize similarities rather than differences in order to reach others who share their interest in broader social justice questions that affect everyone. But even more promising from my perspective as a vulnerability theorist is the fact that the students are challenging the adequacy and effectiveness of existing theoretical and conceptual organizations of identity categories.
Even though they do not articulate their efforts in these terms, they are constructing a universal framework to provide an explanatory power that they cannot find in existing distinct classifications. While the students’ approach remains built around sexual identities, by expanding the frame to potentially include all possible positions, preferences, and perspectives, they have created a universal (or all-inclusive) sexual subject. The differences among the students are not erased, but enfolded within a broad category that is relevant to everyone. As such, it invites a more inclusive and comprehensive approach to issues involving sexuality and gender.
Of course the construction of the sexual subject, as inclusive as it is on questions relating to sexuality, is not comprehensive enough to suggest an ethical or political approach to the range of human characteristics and activities that comprise the human condition. Consideration of the social position of the sexual subject would not necessarily bring discussions of economic or political inequality to the forefront of debates around social policy and law, for example. For a legal or political theorist interested in these broader concepts of equality, a more comprehensive universal understanding of subjectivity is necessary to engage the creeping fetish for individual liberty or autonomy so prevalent today in the United States. These concepts are fundamental components facilitating forces such as globalization, privatization, and corporate capitalism that drain resources from programs that address human need, redirecting them to corporate and business interests and wealthy individuals.
Of course, one could add other categories of identity to the sexual subject, hoping to capture the economic and political dimensions, and thus create a complex or intersectional subjectivity. However, that tactic would undermine the universality of the sexual subject, bringing us back to a fragmented approach, obscuring underlying structures of inequality that transcend specific identities, and evading current equal protection and antidiscrimination law and politics.
The vulnerability analysis I have been developing over the last few years presents a comprehensive vision of the human being, a vision that allows the construction of a universal political or legal subject and also defines state responsibility toward that subject. In the pages that follow I will discuss the vulnerability analysis in regard to some of the issues facing LGBT youth and the role of institutions like the family and school in building the necessary resilience for individuals to survive and thrive in society. Vulnerability and resilience can be placed in institutional contexts. The places and spaces where resilience is produced — such as family, community, and school, form the geography of childhood and youth. Those institutions are failing LGBT youth, but a vulnerability analysis allows us to see that this failure is the result of structural flaws and inadequacies inherent in an ideology valorizing family privacy, parental rights, individual liberty, and choice.”
Fineman, Martha Albertson, Vulnerability, Resilience, and LGBT Youth (April 1, 2014). Temple Political & Civil Rights Law Review, Forthcoming; Emory Legal Studies Research Paper No. 14-292. Available at SSRN: https://ssrn.com/abstract=2434246
“Twenty years ago the first Feminism and Legal Theory (“FLT”) workshop was held at the University of Wisconsin Law School. Begun initially as a summer program, the FLT Project provided a supportive forum for a variety of scholars from different disciplines who were interested in gender and law. Papers from the early sessions of the FLT workshops became a part of the very first feminist legal theory anthology, At the Boundaries of Law: Feminism and Legal Theory.
In the intervening years a lot has transpired. The FLT Project continues to hold summer sessions, along with workshops and “uncomfortable conversations” each semester. We have moved well beyond, while not totally abandoning, the earlier preoccupation with issues of primary concern to women, such as domestic violence and reproductive freedom. Today, the FLT Project is as invested in its “Corporations and Capitalism” working group as it is in working with scholars who are engaging in path-breaking work on care and dependency.
Of course, when we speak of feminism, it is necessary to clearly state that there are many differences within feminism – difference in approach, emphasis, and objectives – that make sweeping generalizations difficult. Recognizing that there are many divergences in feminist theory, it is nonetheless possible to make some generalizations. Feminism is not anchored in any one discipline. It presents a theory of gender and challenges the assertions and assumptions of gender-neutrality and objectivity in received disciplinary knowledge. Often credited with inserting the “woman question” into disciplinary dialogue, feminism has broadened and complicated the traditional framework of a variety of disciplines. Because gender is theoretically relevant to almost all human endeavors, it is also relevant to almost all disciplines.
I. FEMINISMS AND FEMINISTS
Because feminism as a discipline focuses on the significance of gender and the societal inequality resulting from values and assumptions based on gender, feminist scholars are found in all disciplines. As a group, feminists are concerned with the implications of historic and contemporary exploitation of women within society, seeking the empowerment of women and the transformation of institutions dominated by men. In addition, many feminists also use distinctive feminist methods to bring women’s experiences to the foreground, such as consciousness raising or storytelling. Such methods recognize the validity and importance of women’s experiences and ground feminist theory and research.
One important characteristic of feminism is that it represents the integration of practice and theory. As noted by historian Linda Gordon, feminism is “an analysis of women’s subordination for the purpose of figuring out how to change it.” The recognized desirability of this practical aspect has made many feminists gravitate toward law and legal reform as objects of study and action. They have had many successes within law. In fact, it is fair to state that feminism, along with economics and, to some extent, psychology, has had a visible and immediate impact on law over the past several decades. The effect is apparent not only in the academic and in legal scholarship, but in the doctrine employed by courts and developed by legislative bodies. The very institutions of law have been assessed and, occasionally, revised in the light of feminist insights and arguments.
The fact that feminism has had an impact is not surprising given the huge influx of women into law schools beginning in the 1970s. While there were women in law schools prior to this period, their numbers have increased significantly during this time. Further, women have been integrated into the profession at all levels.8 In the first wave of women to attend law school, many were explicitly interested in a feminist political agenda. They came to law schools with the mantra that “the personal is the political” ringing resolutely in their ears. They were interested in reform and the role that law would play in the project of engineering a more gender-equal society. These early feminists were optimistic about using law to attain gender equality.
The strategies of early legal feminist reformers were varied and their perspectives were not always compatible. One basic divide that emerged early in the articulation of a legal approach to feminist theory is still significant today—the issue of gender difference. What were the differences between women and men? How were they to be addressed? The majority of early feminist legal theorists adopted a discrimination model to the issue of gender. Their objective was to outlaw biased treatment and provide laws that allowed women equal opportunities with men.
This group of feminist legal scholars and practitioners were uneasy with too much attention to difference and instead wanted to emphasize women’s sameness with men. Less innovators than entrepreneurs within traditional legal principles, these feminists resorted to doctrinal arguments that women and men should be treated the same. Employing and expanding upon existing equal protection jurisprudence, the attack was on differences codified in law as well as on the stereotypes that justified them. The belief was that any recognition of difference or argument for “special treatment” would operate to the disadvantage of women. These feminists attacked discriminatory laws that denied women full participation in public institutions such as the jury (successful) and the military (unsuccessful). They challenged financial and market institutions’ different treatment in areas like insurance and finance, and used Title VII of the Civil Rights Act of 1964 to make gains in equal treatment in access to employment and pay. Consistent with the primary commitment to equality and gender neutrality, many of the early cases were actually brought on behalf of men excluded from women’s institutions or complaining about favored treatment for women.
Other feminist scholars, however, wanted to develop and build upon the concept of gender difference. Gender inequality was not only produced and maintained through exclusion from or discriminatory treatment within existing social structures. Facially neutral rules could also generate inequalities, particularly since women’s and men’s societal circumstances were so different. Such differences demand different treatment – mere formal equal treatment could not sufficiently address existing structural and ideological inequalities. This strand of feminism sought to question the legitimacy of existing gender norms and their implications for society’s institutions and legal structures. The objective was not necessarily to eradicate these norms (a monumental task that has only begun), but to address the implications of gendered institutions. Institutions, including law were not perceived as neutral and potentially helpful in this regard. They were part of the problem as currently constructed.
This group of scholars and activists, labeled “difference feminists,” can be further divided according to how they understood the implications of difference. Some, labeled “cultural feminists,” argued that women were different from men and had a unique way of “knowing” or feeling. For example, cultural feminist arguments were particularly significant in developing the movement to replace adversariness with mediation and other, gentler, forms of alternative dispute resolution.
By contrast, other arguments that focused on gender differences waged broader critiques of certain substantive areas of law. These attacks were directed at a variety of laws and legal institutions, challenging them as illegitimate because they failed to reflect the differences between women and men.
Recognition that differences between women and men existed (whether developed socially or biologically) led some feminists to call for law reforms addressing the position of women and the gendered nature of their lives. The argument was that women occupy a different and inferior or subordinate position in this society and this necessitated “special” concern and responsiveness. Existing laws were attacked as reflective of male bias.21 Some commentators went so far as to assert that the law itself was male.
Such arguments, delegitimizing existing law and structures, eventually led to reforms that displaced the traditional (male) perspective and effectively transformed the way we think about things such as sexual assault and domestic violence. Family law was another area in which critiques based on the inequity of gender differences were effective. Property division rules at divorce were altered in response to the argument that women as homemakers and mothers made valuable, even if non-monetary, contributions to the family. A focus on gender differences also ushered in “new” legal concepts such as sexual harassment and the battered women’s syndrome. Courts began to recognize that a “typical” woman’s reaction to an experience of “flirtation” in the workplace or repeated threats and actions of violence at home might not be the same as those of the law’s construct—the “reasonable man.” These changes in the law show the success that feminists have achieved in working towards challenging the existing nature and structure of the law. As noted over ten years ago in At the Boundaries of the Law, “the task of create and explicate feminist methods and theories that explicitly challenge and compete with the existing totalizing nature of grand legal theory.”
There is a tension between the idea of feminism as a method of analysis and gender neutrality or equality as its aspiration. How can the major feminist insight – that women live gendered lives, lives shaped by experiences within a society whose institutions and ideologies are founded upon and incorporate gendered assumptions – be reconciled with the equality paradigm as it is played out in law as sameness or equality of treatment? By and large, there is no reconciliation. Equality norms and gender neutrality prevail; although, there is some minor concession to the realization that women’s unequal material circumstances might require some small, preferably temporary, concessions. For example, advocates of affirmative action begin with the premise that equality is not only desirable, but also attainable. The point of affirmative action is remedial—to ensure equal access and equal opportunity for equally distributed meritocracy and ability.
In fact, if we look at the areas which take the idea of gender most seriously and in which it has had the greatest impact, what emerges is an interesting picture. Sexuality, “domestic” violence, and family law are areas that have historically and stereotypically been conceded to women or considered to be of special concern to women. While rape and sexual harassment are “public” events that are sanctioned by law and the focus of regulation and policy, unease with both actions is the result of the fact that we view them as related to “private” activities such as consensual sex and flirtatious seduction. The idea of gender is less visible in situations where we do not view women as victims, as we do in some cases of rape or domestic violence, or where issues do not implicate the domestic sphere of home and family. The dilemma for a feminist is how to bring a gender-focused analysis to bear in the more public and powerful institutional contexts. How can we argue that gender is relevant beyond the sexual, the violent, and the familial?”
Fineman, Martha Albertson, Feminist Legal Theory (2005). Journal of Gender, Social Policy & the Law, Vol. 13, No. 1, 2005; Emory Public Law Research Paper . Available at SSRN: https://ssrn.com/abstract=2132233
by Rimona Afana, Visiting Scholar, Vulnerability and the Human Condition Initiative, Emory School of Law
Listening to Francis Bebey’s ‘Forest Nativity’ awakens my senses to the lush, pristine, cryptic rainforest. David Attenborough’s tales of the rainforest’s bizarre tiny denizens color my perception of sound. Now, the song instead warns me of smoke and ashes, greed and impunity.
The Amazon is burning. Smoke from the blaze is enveloping nearby cities and can be seen from space. Since the beginning of this year, over 76,000 fires have been documented in Brazil, most of them in the world’s largest rainforest. Amazon Watch notes in a recent report that the “ascension of the extreme right-wing politician Jair Bolsonaro to Brazil’s presidency profoundly exacerbates the country’s environmental and human rights crisis.” Companies operating in the Amazon – linked to illegal deforestation, corruption, slave labor, and other crimes – trading with European and North American partners, are aided and abetted by the Bolsonaro regime, its cabinet members “serving as political operatives for the country’s agribusiness and mining sectors.” The ongoing ecocide in the Amazon is driven by deforestation, often followed by fires to clear areas for agriculture; environmentalists attribute slash-and-burn tactics to cattle ranchers and loggers, emboldened by the state’s pro-business agenda and recklessness on environmental issues. Within one year deforestation caused the loss of an area equivalent to nearly one million football pitches. This environmental catastrophe – destroying rainforest ecosystems, debilitating indigenous communities, and contributing to climate change – seems to be the result of systematic state-corporate crime.
The tragedy in the Amazon is not unique: this month forests and grassland have gone ablaze in Siberia, Alaska, Greenland, the Canary Islands, California, Angola, DR Congo, and in other parts of the world, driven by record heat, drought, and deforestation. Thousands of monitoring stations attest that July 2019 was the hottest month on earth since at least 1850 and by the end of the month 1 million square miles of ice at the Arctic and Antarctic had melted. Only between 1-14 August 2019, Arctic sea ice had declined at a daily rate of 35,000 square miles. Over half of the Great Barrier Reef, the earth’s largest living organism, is already dead because of heat and acidity caused by human activity, leading to a rippling ecosystem collapse in the ocean, with devastating effects on the entire planet. Confronting the terrifying evidence of the climate crisis leaves leading climate change scientists weeping behind closed doors.
Massive deforestation operations globally are clearing space for cropland and pastures, both to feed the livestock we breed to then slaughter. Animal agriculture contributes to the global ecological crisis through its major role in climate change and air pollution, in water depletion and pollution, alongside its impact on biodiversity loss. Almost a decade ago the United Nations Environment Programme cautioned that a reduction in this devastating environmental footprint “would only be possible with a substantial worldwide diet change, away from animal products.” The Intergovernmental Panel on Climate Change concurs that, since climate change is projected to negatively impact global food security, plant-based diets are significant, given their low environmental impact. Recent research substantiates this transformative potential: excluding animal products would reduce by 76% the land we currently use for food. That land could be dedicated to restoring and revitalizing ecosystems now compromised, which gradually would reduce the risk of ecological collapse. Besides concerns about animal cruelty and on the potentially detrimental health effects of eating meat, awareness of the calamitous environmental impact of animal farming is one of the main drivers of veganism, now one of the fastest growing movements in the world.
The history of sexism and racism shows that the justifications used to render certain lives inferior (and thus suited for subjugation) are strikingly similar to how carnism and speciesism continue to operate: through denial, strategic invisibilities, and discrimination which legitimate physical, structural, and epistemic violence. Given the significant progress in recent decades on sexism and racism, scholarship and activism may gradually treat speciesism also as a transgression of individual and collective rights. These aspects have driven scholarly debates on whether nonhuman animals could be seen as persons, as well as groundbreaking initiatives giving nature legal personhood. The inevitable interdependence between different forms of life is increasingly recognized.
What can a vulnerability lens contribute here? Vulnerability theory reminds us that vulnerability is not exceptional, but universal and constant. Vulnerability stems from our human condition: embodied (our existence depends on a fragile material case, the body) and embedded (we are never autonomous but depend on others in complex ways). Prof. Martha Fineman’s jurisprudence replaces the independent, self-sufficient liberal legal subject with the “vulnerable subject”. Within this approach, the opposite of vulnerability is not invulnerability but resilience – the capacity to withstand harm. Vulnerability theory shows that resilience is the responsibility of law and of institutions (‘the responsive state”) which are meant, ideally, to mitigate our inherent vulnerability. I believe the Amazon fires and surrounding debates on ecology, speciesism, and state-corporate crime can be critically revisited through vulnerability theory’s insistence on dependency and interdependence. Given our biological and social reliance on other lives to sustain our own, the destruction of ecosystems carries immediate and multigenerational effects on humans, flora, fauna, and other life forms. Ecosystem collapse makes us all less resilient. The failure of Brazilian authorities and of the international community to protect nature puts a lasting dent in Forest Nativity, literally and figuratively, and in our ability to cope with common, intersecting vulnerabilities.
 Instituto Nacional De Pesquisas
Espaciais Brasil (2019). Portal do Programa Queimadas do INPE: Situação
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Jair Bolsonaro emboldened Brazilian agribusiness to torch the Amazon
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Hyde, J. (2019, August 23). Brazilian farmers believe they have the right to burn the Amazon. Rolling Stone. https://www.rollingstone.com/politics/politics-news/brazilian-farmers-believe-they-have-the-right-to-burn-the-amazon-875879/
Zaitchik, A. (2019, July 6). Rainforest on fire. The Intercept. https://theintercept.com/2019/07/06/brazil-amazon-rainforest-indigenous-conservation-agribusiness-ranching/
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August 23). Amazon fires explained: What are they, why are they so
damaging, and how can we stop them? The Conversation. https://theconversation.com/amazon-fires-explained-what-are-they-why-are-they-so-damaging-and-how-can-we-stop-them-122340
Libardi, M. (2019, August 21). Leaked documents show Brazil’s Bolsonaro has grave plans for Amazon rainforest. Democracy Now.
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NASA Fire Information for Resource Management System (2019). FIRMS fire map. https://firms2.modaps.eosdis.nasa.gov/map
Irfan, U., & Amaria, K. (2019, August 22). Photos: Major wildfires have ignited across Europe, Asia, and Latin America. Vox. https://www.vox.com/2019/8/22/20828219/amazon-rainforest-wildfire-photos-fire-greenland
 Freedman, A. (2019, August 15). July
was Earth’s hottest month since records began, with the globe missing 1
million square miles of sea ice. The Washington Post. https://www.washingtonpost.com/weather/2019/08/15/independent-data-confirms-july-was-earths-hottest-month-since-records-began/
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(2019). Arctic sea ice news & analysis: Overview of conditions.
 Loria, K. (2018, April 19). Half of
the Great Barrier Reef has died since 2016 — here’s what happens if all
coral reefs on Earth die off. Business Insider. https://www.businessinsider.com/coral-reefs-great-barrier-reef-dying-from-bleaching-warming-2018-4
Hughes, T. P. et al. (2019, April 18). Global warming impairs stock–recruitment dynamics of corals. Nature, 568, 387-390. https://www.nature.com/articles/s41586-019-1081-y.epdf?
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82). Report of the Working Group on the Environmental Impacts of
Products and Materials to the International Panel for Sustainable
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climate change, desertification, land degradation, sustainable land
management, food security, and greenhouse gas fluxes in terrestrial
ecosystems (final government draft version, Chapter 5, p. 66 and 89).
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 Hancox, D. (2018, April 1). The unstoppable rise of veganism: how a fringe movement went mainstream. The Guardian. https://www.theguardian.com/lifeandstyle/2018/apr/01/vegans-are-coming-millennials-health-climate-change-animal-welfare
 Joy, M. (2015, December 16). The secret reason we eat meat [Video recording]. Beyond Carnism. https://www.youtube.com/watch?v=ao2GL3NAWQU
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Ultraventus Films (2012). The superior human [Documentary film]. https://www.youtube.com/watch?v=mqT82oGeax0
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Satz, A. B. (2009). Animals as vulnerable subjects: Beyond interest-convergence, hierarchy, and property. Animal Law, 16(2), 65-122. https://www.animallaw.info/sites/default/files/lralvol16_p65.PDF
Weizman, E. (2016, October 10). Are they human? e-flux. https://www.e-flux.com/architecture/superhumanity/68645/are-they-human/
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Safi, M. (2017, March 21). Ganges and Yamuna rivers granted same legal rights as human beings. The Guardian. https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings
Ainge Roy, E. (2017, March 16). New Zealand river granted same legal rights as human being. The Guardian. https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being
Flynn Mogensen, J. (2019). Environmentalism’s next frontier: Giving nature legal rights. Mother Jones. https://www.motherjones.com/environment/2019/07/a-new-wave-of-environmentalists-want-to-give-nature-legal-rights/
 Fineman, M. A. (2004). The autonomy myth: A theory of dependency. New York, NY: The New Press.
Fineman, M. A. (2008). The vulnerable subject: Anchoring equality in the human condition. Yale Journal of Law & Feminism, 20(1), 1-23. https://pdfs.semanticscholar.org/96b1/60a89992705480407a2fa61559b6d8573162.pdf
Fineman, M. A. (2010). The vulnerable subject and the responsive state. Emory Law Journal, 60(2), 251-276. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1694740
The University of British Columbia
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August 24, 2019
published by the International State Crime Initiative
Abstract “Since there is also no U.S. constitutional guarantee to basic social goods, such as housing, education, or health care, the anti-discrimination, sameness-of-treatment approach to equality prevalent in the United States is particularly problematic. The discourse of human rights that supports claims to such goods in European and other countries does not exist in America. We have not ratified many of the international agreements, including those associated with economic rights, as well as CEDAW and CRC. The courts are little help. In fact, attempts to apply human rights ideals internally—to American practices and laws—have been met with resistance, if not outright rejection. Several Justices of the Supreme Court decried references to human rights principles used to bolster arguments about constitutionality under American precedent to be the application of ―foreign fads when (superior) American constitutional provisions should prevail. My development of the concept of vulnerability and the idea of a vulnerable subject began as a stealthily disguised human rights discourse, fashioned for an American audience. The concept has evolved from those early articulations, and I now think it has some significant differences as an approach, particularly in that a focus on vulnerability is decidedly focused on exploring the nature of the human part, rather than the rights part, of the human rights trope. Importantly, consideration of vulnerability brings societal institutions, in addition to the state and individual, into the discussion and under scrutiny. Vulnerability is posited as the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual. The nature of human vulnerability forms the basis for a claim that the state must be more responsive to that vulnerability and do better at ensuring the ―All-American promise of equality of opportunity.
I. Introduction Equal protection law under the United States Constitution requires that in order to be treated equally, individuals must be treated the same. This sameness-of-treatment version of equality ignores contexts, as well as differences in circumstances and abilities on the part of those whose treatment is compared. Most perplexing is the way in which the equal protection doctrine ignores existing inequalities of circumstances and presumes an equivalence of position, and possibilities. Such a narrow approach to equality cannot be employed to combat the growing inequality in wealth, position, and power that we have experienced in the United States over the past few decades.
Profound inequalities are tolerated—even justified—by reference to individual responsibility and the workings of an asserted meritocracy within a free market. The state is not mandated to respond to those inequalities, nor does it have to establish mechanisms to ensure more equitable distributions of either social goods or responsibilities between individuals, groups, and institutions. Quite the opposite: in the United States, the state is restrained from interference in the name of individual liberty, autonomy, and paramount principles such as freedom of contract.
Of course, in response to social movements and political pressure, American law does recognize that distortions and disruptions can exist even in systems deemed to be based on market and merit alone. The distortions recognized in our system are organized around discrimination historically found to be impermissible if based on certain individual or group characteristics. Because identities have been the focus of major civil rights struggles in American society, characteristics, such as gender, race, and religion, define which groups are those primarily protected by our equality laws. Note that it is not discrimination in general that is prohibited, only discrimination based on those designated distinguishing characteristics.
A person can be fired from employment on a whim, for any reason whatsoever, or be denied housing or access to goods and services so long as it is not the result of discrimination based on something like race or gender. This approach to inequality has set up a perverse dynamic that often results in pitting one protected group against another, dividing those who may otherwise be allies in a struggle for a more just society, as well as generating a politics of resentment and backlash on the part of those who perceive they are not within groups favored by this approach to equal protection. An additional perverse consequence of the current grievance process arises from the required elements of a legal claim for discrimination. In order to gain legal protection, claimants must establish a history of proven discrimination against the group with which they identify. Therefore, as a group identity-based construct, inequality is only confronted after it has accumulated a sufficiently lengthy history, and groups are pressured to exclude or include people in order to protect a narrative of long-standing discrimination.
This focus on individual and group characteristics and not on the distribution of wealth, power, opportunity, or social goods has affected the organization of interest groups in the United States, as well as the course of legal protection. Legal and political battles revolve around the question of whether a specific group seeking protection can be determined to constitute a discrete and insular minority that has historically been discriminated against, thus allowing an analogy to those groups currently protected based on classification such as race, gender, or ethnicity. This is what is now unfolding with lesbians and gay men, who are fighting to enter existing societal institutions, such as marriage or the military using claims of impermissible discrimination based on animus. Interest groups under existing equal protection doctrine have to be organized around identity categories, fighting to be included as a protected class.
From my perspective, one of the most troubling aspects of the identity approach to equality is that it narrowly focuses equality claims and takes only a limited view of what should constitute governmental responsibility in regard to social justice issues. In fact, nestled safely within the rhetoric of individual responsibility and autonomy, discrimination doctrine enshrines the notions that America provides for real equal access and opportunity and that discrimination is the discoverable and correctable exception to an otherwise just and fair system.
This approach to equality is particularly problematic since in the United States there is no constitutional guarantee to basic social goods, such as housing, education, or health care. The discourse of human rights that supports claims to such goods in European and other countries does not exist in America. We have not ratified many of the international agreements, including those associated with economic rights, as well as CEDAW and CRC. The courts are little help. In fact, attempts to apply human rights ideals internally—to American practices and laws—have been met with resistance, if not outright rejection. Several Justices of the Supreme Court decried references to human rights principles used to bolster arguments about constitutionality under American precedent to be the application of ―foreign fads when (superior) American constitutional provisions should prevail.
My development of the concept of vulnerability and the idea of a vulnerable subject began as a stealthily disguised human rights discourse, fashioned for an American audience. The concept has evolved from those early articulations, and I now think it has some significant differences as an approach, particularly in that a focus on vulnerability is decidedly focused on exploring the nature of the human part, rather than the rights part, of the human rights trope. Importantly, consideration of vulnerability brings societal institutions, in addition to the state and individual, into the discussion and under scrutiny. Vulnerability is posited as the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual. The nature of human vulnerability forms the basis for a claim that the state must be more responsive to that vulnerability. It fulfills that responsibility primarily through the establishment and support of societal institutions. Additionally, those institutions are themselves vulnerable to a variety of internal and external corruptions and disruptions and this realization is the basis for the further claim that these institutions must be actively monitored by the state in processes that are both transparent and inclusive.”
Fineman, Martha Albertson, The
Vulnerable Subject and the Responsive State. Emory Law Journal, Vol. 60; Emory
Public Law Research Paper No. 10-130. Available at SSRN: https://ssrn.com/abstract=1694740
Abstract: This is a chapter from What Is Right For Children: The Competing Paradigms of Religion and Human Rights, M.A. Fineman and K. Worthington Eds. (Ashgate 2009). It explores the implications of the fact that schools have become one of the battlegrounds in American culture wars and parental rights are entangled with religious freedom. Children’s independent interest in education and the obligations the state has to children as individuals are overwhelmed in discussions focused on validating parental rights over their children. Religious beliefs are often offered as justification for removing children from secular public schools, allowing parents to place them in private religious academies or home schooling situations. Any policy pertaining to the education of children should require a balancing of interests. As with many other decisions affecting children and families, the rights and responsibilities of parents and the state must be components of any consideration of what is appropriate for children. The problem is that bringing parents and the state into the discussion often diverts attention away from children. This chapter concludes that perhaps the best way to protect a child’s interests regarding education is by mandating universal public education for all children.
The importance of religion in American culture has been increasingly recognized in recent years. From the rise of the evangelical vote in American politics to the emphasis placed on exporting religious ideology overseas, religion occupies a privileged seat in American culture. However, the rise of the religious paradigm in global politics has not detracted from the importance placed on religion within the family. Schools have become the battleground where culture wars over the appropriate role of religion are currently being waged (Carter, 2001). Indeed, religion figures prominently into ongoing debates over the education of children, from parental choice in private schools to parental rights to home school their children. Parents often cite religious beliefs as a justification for removing their children from secular public schools. However, the growth of the religious model of education necessarily involves trades offs and jeopardizes other competing models, including an education policy that places the child’s interests at the forefront.
Any policy pertaining to the education of children requires a balancing of interests. As with many other decisions affecting children and families, the rights and responsibilities of parents and the state must be components of any consideration of what is appropriate for children. The problem is that bringing parents and the state into the discussion often diverts attention away from children. Perhaps it is evidence of our inability to rise above binary thinking, but what tends to happen in balancing discussions is a kind of either/or thinking, with the child as a “prize” rhetorically shuttled back and forth between the competing rights holders—the parents and the rival state. The independent interests of the child, if recognized at all, are submerged as we slip into a consideration of the competing claims of authority over children made on behalf of parent and state.
It is not surprising that the child tends to disappear as an independent focus in the discussions about rights and authority. The very existence of the child presents a dilemma for the liberal theorist concerned with the individual and preserving autonomy and choice. The child is clearly an individual, but one who is not fully actualized or capable of autonomous decision making. Children are dependent in many ways—economically, emotionally, and often, physically. We are uncomfortable with the idea of children, even adolescents, exercising unsupervised “choice,” and we structure legal and social relationships so that someone is empowered to act for them and in their interest.
In our system, the family (headed by the parent) is the social institution to which children with their dependency are referred. The family is designated as “private” and thus distinguished from the public and political realms, which are appropriately subjected to policy making in the liberal tradition. Secured within the private family, the dependent child becomes the primary responsibility of the parent. This conceptualization renders most considerations of the child independent of the family (parent) inappropriate because they are potentially adversarial. In most cases, the family is presumed to function appropriately, and the child, invisible within the private sphere, can conveniently be ignored in fashioning public policy.
Of course, the child does not always remain subsumed within the family and is occasionally separated out as the state seeks to supplement or displace the parents as decision maker. This occurs when the child is the object of specific public policy, such as education. But the dependency and lack of autonomy inherent in the status of child seem to mandate that the real terms of debate are when the rights of the “natural” custodian (the parent) are trumped by the residual parens patriate power of the state. Despite the well-documented possibilities of harm to children, we are still suspicious of the state as protector of children against parents.
The reduction of the balancing to a consideration only of the parents and the state is evident in the area of education. This is an area in which the state has well-established interests and has long been active. In fact, the state mandates that parents educate their children. Three objectives are typically articulated in justification of compulsory education. Each of these objectives ostensibly emphasizes different interests.
The first objective has a public aspect, and the interests of the state are dominant. If we argue that compulsory education is necessary to produce an informed and disciplined citizenry able to create and maintain necessary social institutions, we emphasize the interests of the state. By contrast, the second emphasis is on social or parental interests and the objective of education is cast as teaching children responsibility with regard to the family, the community, and civic institutions.
If we concentrate on a third objective, however—the “self-actualization” possibilities provided by education—the child’s interest should be moved to the foreground. Education from this perspective has the potential to position the child in opposition to both parent and state. The parents’ dilemma is that educational opportunities often produce paths for advancement and mobility out of the family circumstances (providing escape from the family’s class, neighborhood, etc.) and thus ways for the child to assert her or his individuality. From the state’s viewpoint, education for self-actualization is often geared more toward developing personal critical capacity than toward securing social conformity and obedience. This potential tension may interfere with both parental and state advocacy of the child’s self-actualization interest in education.
Indeed, the objectives of education are often at odds with each other. Choosing from among them can lead us to different conclusions about how we should allocate control or authority over decision making. Many parental rights theorists will concede the mandatory nature of education, including the necessity of government standards regulating the substance and content of that education, while maintaining that decision making should be resolved in favor of parental discretion (see Galston, 2003). In fact, current laws tend to favor parental discretion in several facets of educational policy making. In this regard, some parents attempt to opt their children out of certain public school classes. While some might find a parent’s choice to excuse a child from sex education to be appropriate, is it equally appropriate to allow a parent to excuse a child from science class because the curriculum teaches the theory of evolution and the big bang theory?
Fineman, Martha Albertson, Taking Children’s Interests Seriously. WHAT IS RIGHT FOR CHILDREN: THE COMPETING PARADIGMS OF RELIGION AND HUMAN RIGHTS, M.A. Fineman and K. Worthington, eds., Ashgate, 2009; Emory Public Law Research Paper No. 09-75. Available at SSRN: https://ssrn.com/abstract=1516652