“Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative well-being of individuals. As a check on state involvement, our cramped notion of equality limits the state’s ability to affirmatively address economic, political, social, and structural inequalities. As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state. Equality is understood as a mandate for formalized equal treatment; it operates as a nondiscrimination ideal. This ideal minimizes existing structural disadvantages and thus impedes a more substantive approach to equality, which would recognize and accommodate differences and consider outcome as well as treatment. This formal version of equality, while appropriate on some levels and in some contexts, is not sufficiently flexible to address contemporary disparities in political, social, and economic well-being in America. Any distinctions in the treatment of individuals can raise suspicion about government action, and this is particularly true with distinctions involving personal characteristics that are virtually impossible to constitutionally justify, such as race or gender. At the same time, the emphasis on discrimination or difference in the treatment of protected individuals or groups has been viewed as the primary affront to the principle of equality, rather than the widespread (but nondiscriminatory) exclusion from the benefits of American prosperity and technological advancement experienced by those who stand outside as well as inside these protected identity categories. That generalized harm and deprivation is not seen as constituting a legally remedial form of inequality, indicates that an adherence to formal equality has seemingly eclipsed our moral and political aspirations for social justice. In effect, this means that the state and its actors and institutions can legally treat individuals poorly, just as long as they treat them the same.”
by Jennifer Hickey, Esq., Postdoctoral Fellow, Vulnerability and the Human Condition Initiative
A recently published essay, “United
by Feelings,” explores
the idea that the basic emotional structure of the mind is a biological fact
universal to all mammals. The authors reject the “constructionist” view that
human emotions are not innate and are merely contextual interpretations of
bodily sensations. Constructionists theorize that our minds categorize feelings
into emotions that appear instinctual because we do not have conscious access
to this mental categorization. For example, if your stomach is churning while
you are in a bakery, your brain may perceive this as hunger, while in a
hospital waiting room, your brain may label the feeling as worry. The emotion
is cognitively constructed based upon the circumstances. In this sense, constructionists
believe that emotions are “learned” through cultural experience.
The essay’s authors are proponents of
affective science, which offers a different view. They submit that deep
emotions are not conceptually constructed. Rather, all mammals share seven
primary emotions which evolved to aid survival: fear, lust, care, play, rage,
seeking, and panic/grief. These emotions are then filtered through three levels
of the mind, which produce subtle distinctions across cultures and individuals.
The evolution of the mind is thus a story of how these layers developed and
formed a “feedback loop” that is “not strictly a brain process, but an
embodied, enactive, embedded, and sociocultural process.”
This affective/emotional approach allows us
to fully consider the role and contribution of feelings in perception,
thinking, decision-making, and social behavior. Rather than idealizing rational
thought and portraying emotions as mere complications that disrupt or corrupt
reason, we can begin to examine the true contributions that emotions have made to
human achievement. Indeed, the authors point out that the advances of the
complex tool industry and the evolution of human family structures could not
have happened without parallel advances in the emotional life of man.
How should this idea of universal emotion influence law
and policy? Vulnerability theory asks us to imagine a state responsive to the fact
that, as embodied beings that are constantly susceptible to changes in our
physical and social well-being, we are all universally vulnerable. This
“vulnerable subject” stands in sharp contrast to the traditional legal subject,
assumed to be an autonomous, independent, and self-sufficient actor. This
autonomous liberal subject is also presumed completely rational.
Rationality is privileged in our legal and political
systems as well as in our social and cultural institutions. The derogatory
label of “emotional” is often placed upon individuals thought to be acting in a
manner contrary to intellectual and social norms that idealize the rational
actor. At the same time, scholars of the interdisciplinary field of Law and
Emotions highlight that legal decision-making is permeated with
implicit assumptions about emotions that are considered natural responses and are
thus “rational” rather than “emotional.” This negative perception of emotions is rooted in neoliberal thought. If,
as the essay suggests, emotions are a universally inherent aspect of our shared
embodiment, akin to our bones and organs, are we destroying our concept of shared
humanity by continuing to perpetuate the myth that making decisions based on
emotion is undesirable?
What does it mean to say we are equally emotional on a
biological level; that our emotions are not fundamentally a product of
our cultural experiences? Assumptions are often made about the level of
rationality of certain gender, ethnic and racial groups, leading to
discrimination sometimes deemed impermissible by a legal system focused on
identifying and segmenting humans into discrete populations. For example, pervasive
stereotypes of women as inherently more “emotional” creatures have cast doubt
on women’s abilities to fulfill leadership roles and make appropriate (i.e.
“rational”) decisions on behalf of employers. Might an understanding of
universal emotions enable a more holistic approach to ensuring substantive
equality? Further, could this understanding help reduce the stigma associated
with recognizing and compensating emotional injury and providing the emotional
resources needed to achieve resilience?
Approaching the legal subject as an
emotional one raises interesting questions about how the law should apply to
both children and animals as well. It has long been debated whether animals
should be treated as “property” within the legal system. Similarly, children
are offered limited legal protections and privilege is placed on the parent’s
“ownership” of the child. Redefining our view of humanity as primarily based on
our shared ancestral emotions provides us with an opportunity to view childhood
as an inevitable developmental stage in the life of the vulnerable subject, rather
than viewing children (or animals) as lesser beings due to their limited
cognitive and linguistic abilities.
As embodied beings, we are emotional
beings. And if this essay’s theories are correct, we share a common set of
emotions that unite us all. Such
insights provide an exciting opportunity to revisit our concept of shared
humanity and envision a state responsive to our universal vulnerability.
Considering the transformations that have taken place in the workplace strengthens the arguments for rethinking the social contract given changes that have made the family a more tenuous institution. Relationships within the workplace are now much more tentative. However, there are important differences in the nature and direction of the changes that have taken place within the two foundational societal spaces of family and workplace. Unlike what we see in the family, transformations in the workplace, for the most part, have not been in the direction of equality. Nor has there been increased participation for workers in the benefits and burdens of their institution. Workplace relationships remain mired in status and hierarchy, and the workplace is an increasingly unstable terrain for the individual worker.
Like the marriage relationship, the employment relationship often is cast in contractual terms, and the contracting parties are seen as having equal control in the bargaining process. As with marriage, the state has the authority to intervene and impose protective or other terms on the contracting parties. Historically, however, the state has been much less likely to recognize that there is a need for protective action in regard to the employment situation. This reluctance seems inappropriate.
Even more than the power imbalance that benefits husbands in the typical marriage, employers hold most of the power in the typical employment relationship. As a result, the terms of that contract are one-sided, and they subordinate the employee to the dictates of a market that is a take-it-or-leave-it system, analogous to contracts of adhesion that consumers face. Nor has the worker been successful in stating a claim to the wealth accumulated by the employer. By contrast, the property (capital) historically held in the hands of husbands is now susceptible to claims that the wife has made a contribution toward its accumulation that is equal in value to the monetary contribution of the husband.
Laws governing the employment relationship have not even begun to unsettle the historic premise that profit goes to the capitalist, while the worker is left with whatever bargain she or he can strike with regard to wages. The laws governing labor relations certainly favor employers. Unlike their European counterparts (and absent a strong union contract or civil service protections), American workers at all levels are employed “at will.” The employment-at-will doctrine gives an employer the freedom to dismiss an employee without having to state a reason for the action. This power was modified in the mid-twentieth century by legislation that imposed some restraints on employers, barring employers from firing someone based on factors such as her or his race, gender, or religion.
This lopsided employment arrangement is argued to be contractual in nature, thus carrying with it the implication of equal bargaining power because there is a reciprocal right that accrues to the employee. The employee is also free to leave at will, and the employer cannot stop her or him. But such freedom for the individual employee is largely illusory, an abstract proposition taken out of the context of power relations and economic necessity that inform most employment relationships.
Employers can usually hire someone else easily. For the employee, however, a new job may be hard to find, particularly if the employee is older, less skilled, or trained for a specific set of tasks for which there is not a robust employment market. Increasingly, employers require truly specialized employees or those with knowledge that might prove beneficial to a competitor to sign non competition contracts as a condition of employment. These contracts further reduce the possibility of securing new work, should the at-will employee decide to leave.
From the employers’ perspective legally, the employment-at-will doctrine has generally meant there was never much security for workers. Yet assumptions about employer responsibility to employees (at least managerial and white-collar employees) and the expectation that employment would secure some basic social goods are widely perceived as having shifted in the past few decades.
A vision of progressive change in the workplace centered on the individual worker is harder to articulate because there is no consensus about an idealized form of relationship to exemplify equality between employee and employer. Such a vision was supplied in the context of marriage by the idea of an equal partnership between husband and wife, a metaphor that was transferable in part because the relationship is between two presumptively equal individuals. However, in the workplace we deal with an individual, on the other hand, and quite often a large entity or organization, on the other. Even with small businesses, there is no accepted concept of parity and partnership between employer and employee – the relationship is structured as inherently unequal.
Given this, it is difficult to advance a concept of fair bargaining that does not entail workers’ banding together.But in part because they lack proper legal supports, unions have suffered declining membership. One way to establish a more equal social arrangement would be to articulate a theory for more parity in the workplace, in both union and nonunion contexts.
The low level of unionization in the United States leaves most workers without basic equity protections. This would seem to indicate that more regulation is needed to force employers to provide workers with basic protections. Even if the ultimate objective cannot be “equality” in the partnership sense of that term, we could work toward a more just and fair set of conditions governing the individual worker. At a minimum, these conditions should include more job security, better wages, a safe and comfortable working environment, and social benefits such as insurance, thus more “sharing” for the employee in the fruits that her or his labor produces.
In addition, and most significantly for purposes of this book, the basic terms of employment must also take into account changes in the organization and functioning of the family. The workplace must be made more responsive to the needs of workers as members of families, as people who are also responsible for dependency work and who need accommodation as a result. Unfortunately, the direction of the changes now under way in the workplace will make things harder, not easier; for those who are responsible for dependency within the family.
“Western systems of law and justice have inherited a political liberalism that imagines a ‘liberal legal subject’ as the ideal citizen – this subject is an autonomous, independent and fully-functioning adult, who inhabits a world defined by individual, not societal responsibility, where state intervention or regulation is perceived as a violation of his liberty. Social arrangements and institutions with significant effects on everyone lives, such as the family, are deemed “private” and their operation and functioning relegated to ideologies of meritocracy and the free market. Vulnerability theory challenges the dominance of this static and individualized legal subject, and argues for the recognition of actual human lives as socially and materially dynamic.
Vulnerability theory understands human beings as embodied creatures
who are inexorably embedded in social relationships and institutions. By
rejecting the limited subjectivity constructed in the liberal
imagination, we acknowledge the lived complexity of the ‘vulnerable
legal subject’ – a political vision of how the human condition is
profoundly shaped by an inherent and constant state of vulnerability
across the life-course from birth until death. Incorporating the
inevitability of change into the political project of conceiving the
legal subject creates a complex subjectivity to guide the way we define
individual and state responsibilities. It provides a basis to question
and critique current allocations of responsibility for individual and
societal wellbeing across the individual and the state and its
institutions. Vulnerability theory takes seriously the political and
legal implications of the fact that we live within a fragile
materiality. We are, all of us, vulnerable. Sometimes our vulnerability
is realized in the form of dependency on others for care, cooperation,
or assistance. Sometimes it is realized in our dependency on social
arrangements, such as the family or the market or economy. But, whether
realized or latent, this vulnerability is universal and constant – an
essential and inexorable aspect of the human condition.
Importantly, the primary emphasis of vulnerability theory is not our human vulnerability, although the theory begins there. When vulnerability is understood as a universal constant, the task then becomes to explore the strategies by which we can mitigate this vulnerability. Therefore, human beings are not rendered more or less vulnerable because they have certain characteristics or are at various stages in their lives, but do experience the world with differing levels of resilience. The inequality of resilience is at the heart of vulnerability theory because it turns our attention to society and social institutions. No one is born resilient. Rather, resilience is produced within and through institutions and relationships that confer privilege and power. Those institutions and relationships, whether deemed public or private, are at least partially defined and reinforced by law.”
“The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence, and self-sufficiency.
This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in the context of struggling with the limitations of equality in situations I will refer to as examples of ‘inescapable’ inequality. Some paired social relationships, such as parent/child or employer/employee are inherently, even desirably, unequal relationships. In recognition of that fact, the law creates different levels of responsibility, accepting disparate levels of authority, privilege, and power. Those laws, and the norms and rules they reflect, must carefully define the limits of those relationships, while also being attentive to how the social institutions in which they exist and operate (i.e. the family and the marketplace) are structured and functioning.”
Fineman, Martha Albertson, Vulnerability and Inevitable Inequality (December 13, 2017). Oslo Law Review, Vol. 4, pp133-149; Emory Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3087441
Why might we be concerned about the utility of equality or antidiscrimination models? Within the family? The market?
Why does Fineman argue that we need to ‘rethink’ the legal subject to ‘make it more reflective of the actual human experience’?
What might be some implications of basing our movements for justice upon a vulnerable legal subject?
What are embodied and embedded differences?
What is resilience, for Fineman, and how does this relate to her insistence upon a life-course perspective?
you agree that some relationships are marked by inevitable and even
desirable inequality? When might inequality be desirable?
What if our vision of social justice did not focus on a struggle for equality? What other issues might emerge as priorities?
This blog will feature excerpts from Professor Martha Fineman’s published and unpublished work, original blog posts from Vulnerability and the Human Condition affiliates, information on upcoming events, and a unique window into VHC workshops – a privilege until now only accessible to those who have been able to attend VHC workshops or to access the Feminism and Legal Theory Archive at Emory Law.