Vulnerability and the Human Condition

by Lua K. Yuille

“The pages that follow advance a simple central proposition: Local governments should pay gang members to refrain from gang activity. But the deeper story this article tells is more complex, with implications far beyond the relatively confined world of the contemporary American street gang inhabited by an estimated 850,000 members. That more complex story is of the universal human condition of vulnerability, the instinct and imperative to build mechanisms to confront that vulnerability, and of property’s important role in that task.

The surface story of this article offers a provocative and unexpected approach to what is framed as a growing national, regional, and local gang threat. More predictable, is the response of local governments and law enforcement agencies, which have developed creative initiatives to disrupt and dismantle the reported 33,000 gangs across the country. Most of this experimentation has focused on variations on traditional policing, like the creation of specialized “gang units” within police departments and targeted heightened surveillance operations against gang leaders. However, in the 1980s and 1990s, political actors also turned to civil legal mechanisms to combat what continues to be framed as the growing, intractable menace of the corporatized, terroristic, criminal street gang.

Continue reading Manufacturing Resilience on the Margins: Street Gangs, Property, & Vulnerability Theory

An excerpt from “Vulnerability and Power in the Age of the Anthropocene” by Angela P. Harris

“In a paper published in 2011, a group of scientists led by Will Steffen presented evidence of what they called “The Great Acceleration:” a sudden intensification of the impact of human activity on the global environment. Taking the measure of diverse human phenomena, from human population and fertilizer consumption to the number of McDonald’s restaurants worldwide, the authors generated a series of charts. Each chart featured a curve sloping steeply upward, beginning around 1945. Extreme environmental change on planet Earth is nothing new. As J.R. McNeill points out in his environmental history of the twentieth-century world, “[a]steroids and volcanoes, among other astronomical and geological forces, have probably produced more radical environmental changes than we have yet witnessed in our time.” Nor is human impact on the biosphere unprecedented. As beings embedded in biological systems, humans have always affected the fortunes of plant and animal species around us (and within us, as we will see), and these impacts increased as humans began farming, building cities, and domesticating other animals. However, since the dawn of the Industrial Age the scale of human intervention in human and trans-human planetary systems has grown dramatically. McNeill explains that the transition from reliance on human and animal power to reliance on fossil fuels made possible an extraordinary growth in energy use:

We have probably deployed more energy since
1900, than in all of human history before 1900.
My very rough calculation suggests that the
world in the twentieth century used 10 times as
much energy as in the thousand years before
1900 A.D. In the 100 centuries between the dawn
of agriculture and 1900, people used only about
two-thirds as much energy as in the twentieth
century.

Continue reading Vulnerability and Power in the Age of the Anthropocene

by Michael Thomson

“INTRODUCTION

Standard accounts of the emergence of bioethics are typically anchored in the progressive politics of the sixties. In these narratives, bioethics is cast as a response to the Nuremberg trials and a series of abuses committed in the name of research in the decades that followed. These originary tales position bioethics alongside the civil rights movement. It is a counter-cultural force protecting the rights of individuals, checking the excesses of (some) researchers, and an increasingly technological, commercial, and industrialized health system. As the bioethicist and historian Albert Jonsen argued, early bioethicists were “pioneers” who “blazed trails into a field of study that was unexplored and built conceptual roads through unprecedented problems.” The pioneers “radically change[d] the practice of scientific research in America.” Since these early days, bioethics has grown to attain a particular place in the governance of science and technology. It has “spawned a new profession and seeded novel social institutions.” It acts directly through structural requirements for ethical review, as well as indirectly through the ways in which bioethics has come to shape public deliberation. It has also influenced processes of legal reasoning and governance, with law becoming increasingly undifferentiated from bioethics and both “seen as normative modes that can preempt and control biomedicine.” As José López concluded over a decade ago, “In little over 30 years, bioethics has managed to position itself as a key node through which a variety of social, political and scientific activities are refracted.”

Continue reading Bioethics & Vulnerability: Recasting the Objects of Ethical Concern

Vulnerability theory identifies the human condition as one of universal and constant vulnerability. That vulnerability is managed and mediated through the creation of social institutions and relationships. As part of the state mechanism for distributing social goods and ensuring society’s welfare, those institutions ultimately can and should be judged by how responsive they are to human vulnerability.

This workshop seeks to look at the status of workers in a corporate system, considering how corporations have changed from grudgingly addressing human vulnerability within a capitalist scheme of wage labor, to increasing rejection of the very idea that human vulnerability should be a matter of corporate concern.

In the middle of the twentieth century, corporate America oversaw a “family wage system” that promised secure employment with benefits to a large swath of white men. Within this patriarchal system, the “organization man” saw his future as tied to the success of his company, while corporate leaders saw the health of their organizations linked to the fate of the country. Provisions for old age, family dependents, illness, and injury were part of a comprehensive system that united corporate and workers’ interests, while also recognizing the significance of societal institutions, such as the family. By contrast, today, the characterization of the corporation as solely an instrument to advance private ends permits corporate leaders to ignore workers’ increased insecurity, often at the expense of other stakeholders and even the corporation itself. The result creates artificially competitive cultures that increase societal inequality and instability, reduce diversity, and undermine efforts to make employment more responsive to individual worker’s, as well as societal needs.

We intend this workshop to cover an array of topics that center on the legal and ideological or conceptual “evolution” of the corporation in relation to its legitimizing societal role in responding to human vulnerability. We welcome the participation of scholars working in law and related disciplines, including economics, community development, history, political science, sociology, and social psychology.

Click here for workshop and submission details.

by Dr. Atieno Mboya

Definitions

“Gender equality means ensuring equal opportunities for women and men and equitably valuing the contributions of both.

Empowerment of women through law refers to women using the legal system to secure their goals for equality, agency, and equal opportunities and income with men.

Introduction

The United Nations’ Sustainable Development Goal 5 on achieving gender equality and empowering women and girls reiterates the unfinished, universal struggle for women’s rights around the world. The Goal calls for:

(i) Increased women’s leadership and
participation in governance

(ii) Strengthened women’s economic
empowerment

(iii) Increased protection of women against gender-
based violence and access to justice for
women (Sustainable Development Goals
Knowledge Platform 2019)

The feminist movement, which advocates for women’s social, political, legal, and economic rights, equal to those of men, continues to be the catalyst for women’s fight for gender equality. The objective of increasing women’s leadership and participation in governance is a liberal feminist approach to gender equality, which aims to integrate women into existing power structures. As of 2020, a long road remains to be traversed in this regard, with, for example, only 20 countries having female Heads of Government (UNWomen 2020b). The second objective, strengthening women’s economic empowerment, when operationalized, increases women’s life choices and agency because of the greater economic independence they have. And the third objective, protecting women from gender-based violence and ensuring they have access to justice, aims to realize and protect women’s fundamental human rights to life, dignity, and freedom from violence. These objectives and the overall global goal of achieving gender equality are embedded in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the national laws of states that have ratified the Convention. CEDAW is an international agreement that lists the rights of all girls and women concerning achieving equality between girls/women and boys/men (CEDAW 1979).

This entry will survey the relationship between women and the law in the context of the struggle for gender equality. It will examine how women have been defined as legal subjects over time and traditional legal restrictions that have been upheld against women, using examples drawn primarily from the United States, where there is a robust legal trail for dismantling those restrictions and advancing women’s rights. Victories that women in the United States have won have had reverberating impacts in other parts of the world, surveying the American women’s rights experience relevant to the global women’s movement, which is today reflected in the Sustainable Development Goals. The entry will explore constitutional and legislative doctrines that evolved to remove the oppression of women, tracking how the feminist movement has pushed for these victories, which have in turn fueled the movement towards overcoming legal obstacles and setbacks that women have faced.”

Mboya A. (2020) Empowering Women Through the Law. In: Leal Filho W., Azul A.M., Brandli L., Lange Salvia A., Wall T. (eds) Gender Equality. Encyclopedia of the UN Sustainable Development Goals. Springer, Cham.

Read the rest here: https://doi.org/10.1007/978-3-319-70060-1_146-1

by Deborah Dinner

Illustration by Martha A. Fineman

“Take a closer look at a physical copy of Martha Albertson Fineman’s recent book series and you will notice that the cover art is a print of one of Martha’s own etchings. The print shows two faces, one staring intently at the viewer and the other looking to the side. The faces are not isolated; rather, they are connected by intersecting and overlapping spherical lines. Trees and leaves encircle and, perhaps, protect the faces. For me, the emotions evoked by the etchings include curiosity, warmth, forthrightness, creativity, and an awareness of relationship to other people and to the environment. Martha possesses these qualities, as a scholar and colleague. As an artistic medium, furthermore, etchings draw viewers’ attention to negative spaces as well as positive lines. This is the quality of Martha’s scholarship that is, for me, most inspiring and generative. Martha has a knack for rendering visible the negative spaces—the dimensions of law and social life that others are missing.

Over the last decade, Professor Fineman has turned her attention to one such negative space: vulnerability in the human condition. In 2008, she published The Vulnerable Subject: Anchoring Equality in the Human Condition. This essay, since cited by more than 150 law-review articles and countless book chapters, presented Fineman’s critique of the limits of antidiscrimination law and argued that recognition of universal human vulnerability should serve as the ethical foundation for a more responsive state. In the last decade, vulnerability theory has evolved considerably, but I will start my remarks with a brief overview of this landmark essay.

Fineman’s piece starts with a familiar critique: that the formal conception of equality in U.S. antidiscrimination law—same treatment for similarly situated individuals—has proved wholly inadequate either to challenge structures of subordination or to remedy socioeconomic inequality. She draws attention to the way in which the rhetorical prominence of antidiscrimination, as our legal culture’s dominant frame for justice and injustice, reinforces the perceived legitimacy of a restrained state. Putting a twist on our understanding of the public–private divide, she argues that the contemporary state has not withered. Rather, the state refrains from using its formidable coercive authority to guarantee substantive equality.

The essay then proceeds to chart wholly new territory in legal scholarship: universal and constant human vulnerability. Of crucial importance, Fineman departs from the popular conception of vulnerability as signaling the “victimhood, deprivation, dependency, or pathology” of particular groups. Rather, the essay advances the radical notion that vulnerability is a universal and constant aspect of the condition. Vulnerability, she explains, “should be understood as arising from our embodiment,” which carries with it the capacity for “harm, injury, and misfortune… whether accidental, intentional, or otherwise.” Vulnerability also stems from individuals’ differential location in social, economic, and political institutions. For this reason, while vulnerability is universal, Fineman reasons, its manifestations in specific individuals’ experiences are particular and varying.

In my own view, Fineman’s thoughts about the simultaneous universality and particularity of vulnerability offer fruitful terrain for further scholarship. Scholars may explore the points of overlap and departure between Fineman’s theory and critical-race and feminist theories. The latter view vulnerability as institutionally produced and, generally, challenge universalist theories as insufficiently attentive to the construction and deployment of power. It seems that these two approaches to vulnerability may be compatible—a view that should not be surprising given the long and profound role Fineman has played in the development of critical theory within the legal academy. Existential vulnerability, if understood as particular in its manifestation, may support theoretical insights into the institutional production of vulnerability. Fineman and critical theorists of vulnerability similarly highlight the ways in which both state and civic society institutions construct privilege and disadvantage. Indeed, Fineman herself argues that it is not identity traits, themselves, that produce inequality. Rather, “systems of power and privilege . . . interact to produce webs of advantages and disadvantages.”

Fineman’s project, however, is ultimately constructive rather than critical. In keeping with her laudable pragmatism, Fineman’s theory calls for a responsive state that promotes both human and institutional resilience. Vulnerability theory argues that the state has a responsibility to promote resilience by facilitating the just distribution of physical assets such as material resources, human assets such as education and health care, and social assets such as strong, functional families and communities. For the purposes of this Essay, however, I will focus on the concept of human vulnerability rather than its cognate—resilience.

Even at this early stage, the reader might wonder: why does the author, whose primary intellectual identity lies within the field of legal history, find this particular piece of legal theory so compelling? Here is the answer: Fineman’s theory is of considerable interest to legal historians because it is fundamentally concerned with how we should re-theorize law given the inevitability of change over time. I take the occasion of this tribute issue honoring Martha Albertson Fineman’s oeuvre to outline some ideas about the significance of vulnerability theory as a category of analysis in legal history. To begin, vulnerability theory makes historical analysis critical to law by placing historicalchange (and not just originalist inquiry) at the core of legal analysis. Vulnerability theory draws our attention to the fact that human beings are constantly susceptible to change, both positive and negative, in our bodily, social, and environmental circumstances. Vulnerability theory, therefore, reconceives the universal political–legal subject as dynamic rather than static, materially fragile, and socially interdependent. Vulnerability theory is thus well-suited to legal history because it foregrounds temporality as a means to understand social experience as well as institutional arrangements under law. The theory demonstrates that any theory of social justice must account for change over time.

Even as it demonstrates the relevance of temporality for legal theory, vulnerability theory demands that historians pay greater attention to the persistence of enduring and constant human needs across time. Over the last three decades, critical-race and feminist theory has informed historical scholarship by showing how ideas about identity and difference have structured social–legal institutions. Vulnerability theory, I would argue, challenges historians to examine how history is shaped, too, by what Fineman terms inevitable, biological dependency across the life course as well as the derivative dependency of caregivers. These existential characteristics have provoked varied and shifting institutional and legal responses over time. The question for legal historians is how and why law has constructed and reconstructed the institutional arrangements of dependency. Accordingly, recognition of vulnerability can offer new ways to organize historical periodization and theories of causation.

This Essay uses an illustrative example from my own scholarship to demonstrate the capacity for vulnerability theory to enrich legal history. It analyzes the legal construction and obfuscation of vulnerability in the U.S. “welfare regime”: the public as well as private arrangements that order social provisioning. As a short Essay meant to provoke rather than to answer questions, the piece is necessarily cursory in its treatment of historical causation, controversies, and patterns. First, I outline the relationship between gender and vulnerability in the liberal welfare regime, premised on concepts of feminine vulnerability and masculine independence. Second, I discuss the ways in which the neoliberal welfare regime assumes invulnerability: it valorizes sex neutrality, while reinforcing private responsibility for dependency. Third, I use vulnerability theory to help illuminate a historical path not taken: the transformation of the welfare regime according to the model of the universal, interdependent caregiver rather than the universal, autonomous breadwinner. Throughout this brief exposition, I endeavor to explain how Fineman’s theoretical insights inform my own methodology and analysis as a legal historian.”

by Barbara Bennett Woodhouse

Image via Pixabay

“A World Fit for Children” is the title of a report delivered to the U.N. General Assembly’s Special Session on Children in 2002. The report was the fruit of three days of discussions and debates carried out by over 400 youth delegates aged ten to eighteen (also referred to as the ‘U-18s’) representing children from all of the nations of the world. In their report, the children identified many threats to their well-being, from the degradation of the natural environment, to the HIV epidemic, to war and hunger, each of which is also a threat to women and, indeed, to humans everywhere. The U-18s were not engaged in special pleading on behalf of children, but on behalf of all who inhabit the planet. These U-18s played an integral role in the 2002 U.N. Special Session, and their message transcends the politics of division to make a statement about our shared vulnerability and our shared strength. This Article is premised on the notion that building a world in which children flourish is integral to the project of building a world in which women flourish, and vice versa. By meeting the needs of children and their caregivers, we build an environment in which all can flourish.

In my prior writings, inspired by the work of feminists, and especially the Feminism and Legal Theory Project, I developed a child-centered theory called ‘generism.’ Inspired by environmental, physical, and social science, I have refined this theory under the more descriptive title of ‘ecogenerism.’ In this Article I am claiming that feminism and generism or ecogenerism are mutually complementary and compatible approaches to a broad range of concerns that threaten shared values of human flourishing. Feminist theory, and especially the branch called ‘intersectionality,’ challenges inequality and systematic marginalization of others besides women. Likewise, generist theory does not cease to be generist theory when it challenges the oppression of others besides children. Generism also does not cease to be generism when it addresses the devaluation of persons other than children. I will argue that systematic devaluations of women and children are deeply interconnected and need to be addressed together.

My premise is not novel. Political analysts already lump all manner of things that matter to children — decent schools, safe streets, quality and affordable health care and day care– under the somewhat patronizing rubric of “women’s issues.” Human rights documents already demonstrate that the concerns of women and the concerns of children are deeply interconnected.8But, too often, we in the United States seem to magnify out of proportion the rare clashes between women’s rights and children’s rights, rather than focusing on the overwhelmingly positive correlations between rights for women and rights for children. Perhaps our Constitution, with its single-minded focus on individual rights, looms so large in our imaginations that it blocks our view of the basic human rights concepts that unite us. Lawyers trained in the United States tend to frame discussions as clashes of rights– the fetus’s right not to be killed and the woman’s right not to be told when or whether to bear a child, for example. This framework suggests that rights are a zero sum game. More rights for women mean fewer rights for children, and vice versa.

Instead, I will argue that employing an ecogenerist method brings from the margins to the center those basic economic and social rights that are missing from the U.S. Constitution but so critical to understanding human rights and the human condition generally. Human rights principles, by placing rights in an economic and social context, acknowledge and make visible the interdependency of women’s and children’s rights and the interdependency of women’s and children’s interests. As others have observed, both the right to life and the right to reproductive choice are hollow if the material conditions necessary to exercise such rights are lacking.9 Feminism and the child-centered perspective I call ecogenerism are alike in recognizing that rights without resources are meaningless to dependent persons and those who care for them. Both methods avoid the trap of focusing narrowly on the individual and both demand that we recognize our shared interconnectedness and our shared vulnerabilities, as well as our rights to individual autonomy and privacy.”

by Dr. Stu Marvel

It is no radical proposition to argue for the centrality of the legal institution of marriage in allocating rights and legitimating functions in American society. Marriage remains critically important as both a symbolic and an organizational structure. Indeed, much of the debate around whether gays and lesbians should be permitted to marry has issued from a recognition of the vital role of marriage, not only in childrearing but as a barometer for social order and “traditional” values. While the moral disapproval of same-sex marriage is an admittedly diverting topic, this Article is more interested in a functional analysis of the marriage institution. What work does marriage do for the state? Why marriage, and why does it remain so foundational?

The contemporary answer, I believe, has to do with the priority placed by the state on ensuring mechanisms for the care and nurturance of children. Thus, the battle over same-sex marriage is not merely about gays and lesbians but about the social institution of family and the resilience of the marital form. Can it withstand the challenges posed by same-sex marriage movements? Will it crumble if opened to even broader forms, such as polygamous unions? These contestations are matters of urgency not only for the families involved but for the larger institution of marriage itself. The resilience of the marital family is a particularly critical concern within a “weak” welfare state such as the United States, where the private family is expected to do much of the work of childcare and nurturing. The manner in which the state channels rights, benefits, and obligations through our intimate lives thus continues to be of paramount importance.

While the arcs of the same-sex marriage and polygamous marriage movements have been far from parallel, there are nevertheless important continuities and linkages to be found. The role and position of children in both movements, as well as the vulnerability of the state in regard to the care of dependent children, offer useful signposts toward a future of plural parents and caretakers within the family. But what does it mean to reference “the vulnerability of the state”? How can an institution, much less the state, be understood as vulnerable? The next section will introduce the vulnerability paradigm developed by Martha Fineman and explain its utility in analyzing these social concerns.

Continue reading The Evolution of Plural Parentage: Applying Vulnerability Theory to Polygamy and Same-Sex Marriage

by Martha Albertson Fineman

Image via Pixabay.

“The civil societarians claim the family as their domain, its salvation as their mission. The family is a foundational concept-the “cradle of citizenship”-which teaches  “standards  of  personal conduct that cannot be enforced by law, but which are indispensable traits for democratic civil society.”‘ Problems with the family, therefore, are clearly seen as problems for democracy, justifying legal and political responses. In recent years a number of civil societarian groups have met, held conferences and hearings, and generated position papers and calls for action in an effort to engage the  nation in a discussion of civil society.

I will address two reports which set forth the purported diminished state of civil society and suggest proposals for civic renewal: A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It, prepared by the National Commission on Civic Renewal (the “Commission”), and A Call To Civil Society: Why Democracy Needs Moral Truths, prepared by the Council on Civil Society (the “Council”).    There is significant overlap in the membership of both bodies, which may explain the similarity in analysis and in policy recommendations.  Of particular interest is the fact that William Galston is both a member of the Council and the Executive Director of the Commission. Professor Galston has been an active and influential advocate for policies encouraging the traditional two-parent family. The reports evidence that he  has played a strong conceptual role in both bodies.

Professor Galston’s position on the family exemplifies the civil societarian approach. My basic argument is that his emphasis on the decline of the two-parent family, evidenced in the reports of both the Commission and the Council, operates to eclipse concern with social and economic forces that are truly destructive of families  regardless of their form. Of particular concern in this process are the political implications of civil societarian discourse, which is replete with allusions to crisis and family breakdown. I am also troubled by the way that civil societarians construct arguments using public opinion polls as though the responses to certain questions by a majority of those polled represented some  transcendent  “truth”  about  the state of American society.  That “truth” then becomes the justification for legal policy punishing some families and privileging others.

Civil societarians justify coercive action based upon opinion polls that show that the American public agrees with their dire observations about the family. But the term “family” is susceptible to a variety of definitions. In addition to the “traditional” family populated by formally married sexual affiliates and their biological children, family can be understood to include other couples­ unmarried sexual affiliates, whether heterosexual or homosexual, with or without children. To some people, family may also mean collections of people related by blood or kinship systems, sexual affiliation not being paramount. Slightly different is the sense of family associated with lines of descent – an intergenerational concept of family.

There are other possible meanings of family, but the point I want to emphasize is that it is by no means clear what definitions respondents have in mind when replying to opinion polls inquiring about “the family.” For example, agreement with the statement that breakdown in the family is a major indicator of moral decline may evidence concern with divorce and single motherhood. It may also indicate concern with the breakdown of intergenerational ties evidenced by the fact that adult children no longer care for their aging parents at home, or with a breakdown in family discipline evidenced by the fact that overworked parents (married as well as single) do not discipline their children into civility.

In addition to definitional problems with the concept of family, terms such as “breakdown” chosen by the civil societarians serve an ideological function. Using “breakdown” to describe changes in patterns of intimate behavior generates a sense of crisis, transforming demographic information into societal problems. The civil societarians have not merely identified an existing crisis for democracy and called for solutions. The civil societarians have constructed a crisis in morality, as well as for democracy, by turning the evolution of the traditional family form into a primary organizing analytical tool. Marriage becomes more than a legal category. It is reconfigured into public policy and presented as the path to personal and family salvation.

But marriage is nothing more than a legal category. The term itself does not necessarily indicate how individuals are living their lives or performing their societal functions. And it is family functioning, not family form, with which we should be concerned. The question is not what is happening to marriage, but how those members of our society who are dependent are faring and what institutional adjustments are warranted in order to address their needs. By focusing exclusively on family form, these are the questions the civil societarians never ask.”

by Martha Albertson Fineman

Image via Pixabay

Introduction

“As a nation, this is one of our definitive moments.  We are making determinations about our social welfare system with significant and widespread implications for the weakest and most defenseless Americans. It is widely understood that the social safety net is being torn apart by the rhetoric of budget necessity and professed American moral values. Yet, most of us stand outside of the debate, complacent or paralyzed in disbelief as our political leaders substitute market ideology for moral responsibility and sacrifice “realities” to symbol and myth.

The articulated assumptions and assertions advanced for the proposed changes in welfare must be challenged. Various academics and other researchers have produced a  multitude of studies questioning the premises behind putting welfare mothers to work and indicating that punitive measures designed to curtail reproduction do not work. These scholarly efforts at providing empirical information relevant to the current political debates are not widely reported in the media, nor do they persuade in the legislature. This particular set of reforms seems driven by ideology as uncomplicated by empirical studies as it is resistant to appeals for caution and compromise in the name of compassion.

Continue reading The Nature of Dependencies and Welfare ‘Reform’