Vulnerability and the Human Condition

By Jennifer Hickey, Postdoctoral Fellow, Vulnerability and the Human Condition Initiative, Emory University School of Law

Image via Pixabay by Skitterphoto

Strikes and gutters; ups and downs. Twenty-five years ago, Robert Putnam published his influential essay, Bowling Alone: America’s Declining Social Capital.  The essay highlighted a generational decline in civic engagement, evidenced by decreased participation in bowling leagues despite increased interest in bowling. At the heart of Putnam’s work was the larger question of the proper role of civil society in a democracy. Conservatives have long invoked romantic Tocqueville-inspired notions of civil society as an alternative to government. What happens if, instead of banding together to solve our nation’s problems, the people decide to go bowling alone?

And now, bowling once again takes center stage in the ultimate “battle” of civil society versus government. Georgia’s Governor Brian Kemp recently became the first in the United States to take significant measures to “reopen the economy” in the midst of the coronavirus pandemic, despite indications that relaxing social distancing measures so soon will surely result in more deaths. Kemp announced that businesses previously considered “non-essential,” including bowling alleys, could reopen with “appropriate” safety measures. The very idea of bowling as essential was deemed laughable and has been the target of nationwide parody.

The impact of the governor’s dangerous abdication of responsibility, however, is far from funny. Business owners who justifiably feel unsafe re-opening are being pressured by landlords and creditors. Employees face the potential loss of unemployment benefits should they “choose” to stay home out of fear of catching the virus. Our administration has consistently framed this pandemic as “market versus lives,” a balancing act between “getting Americans back to work” and taking the necessary precautions to avoid deaths. This problematic framing implies that the market is the only way to ensure that Americans are able to make ends meet and ignores the possibility of a greater social safety net; never mind the disturbing attempts to normalize dying from a terrible illness as a laudable sacrifice of one’s life for the economy. And now many Georgians will consider it their social responsibility to frequent their favorite businesses to keep employees from starving. Forcing us to choose who gets to live and die under the rule of the “free market” is the ultimate manifestation of a neoliberal government leaving us to fend for ourselves under the guise of individual freedom and choice.

Thus, once again, bowling becomes an important indicator of our notions of social responsibility. On the surface, it is one of the least social endeavors one can now undertake. Whether bowling alone or in a league, the individual choice to go bowling is seemingly in direct opposition to the collective good. The small boost in civic-mindedness that might result from an engaging discussion about the pandemic over a pitcher of beer is hardly worth the lives of bowling alley employees. On the other hand, there are some who undoubtedly feel they must go bowling in order to ensure that these employees can put food on the table. What may look to be a selfish individual “choice” on the surface may actually be civil society “stepping up” in an attempt to make the best of the role neoliberalism has foisted upon them.

The unfortunate result of this “stepping up” of civil society, however, is the continued normalization of minimal government interference. True, all levels of government have been criticized for their inadequate responses to this horrific public health crisis. But alongside these critiques, we see tales of “ordinary heroes” organizing food drives and fundraisers and sewing masks. Citizens banding together out of necessity when government fails should not be taken as proof of romantic Tocquevillian notions of civil society as the appropriate alternative to responsive governance. In contrast, we should view state responsibility through the lens of Professor Martha Albertson Fineman’s vulnerability theory, which imagines a state that is responsive to the universal vulnerability of its citizens and seeks to provide the resources needed to achieve resilience. Such a state would not abandon its citizens to the whims of the economy, profoundly neglecting even the most basic human needs.

Twenty-five years ago, Putnam associated bowling alone with decreased civic engagement and increased distrust in government. Today, bowling in the midst of a pandemic is a natural consequence of a state that is unresponsive to its citizens’ needs. Whether we bowl in celebration of individual choice and responsibility or out of a sense of social obligation, without the support of our government, we are truly bowling alone.

by Martha A. Fineman

Image via Max Plieske

‘The Emergence of Queer Theory

During the 1980s and 1990s, the LGBT community faced a very particular constellation of pleasures and dangers around sexuality. For example, as AIDS and government neglect of the pandemic ravaged the gay community, sex and spaces of sexual culture became suspect and shadowed by public-health panics. Moreover, whereas some feminists considered turning to the state for protection, it was the state itself that was identified as a substantial source of danger for queer communities. This seemed an inevitable conclusion following the 1986 decision Bowers v. Hardwick, which upheld state prosecution of same-sex sodomy. Further, while formal legal barriers were falling for women, it was clear that for LGBT communities many barriers remained and more were being erected. For example, while discrimination on the basis of sex was becoming legally impermissible, discrimination on the basis of sexual orientation remained legal and affirmed: a lesbian could not be fired from work for being a woman, but she could be fired for being lesbian.

While there were a variety of responses to this situation, the one that came to predominate gay and lesbian politics tended to naturalize binary sexual identities, even as some theorists criticized  that strategy. Further, building upon perceived successes of previous civil rights movements, gay and lesbian political leaders adopted a formal equality model that sought to equate the moral value and political status of homosexuality and heterosexuality. In practical terms, this meant trying to include gays and lesbians in existing antidiscrimination regimes, such as Title VII and Fourteenth Amendment jurisprudence, in order to gain access to existing institutions, such as marriage. There have been both successes and setbacks in this struggle: Bowers was overturned by the U.S. Supreme Court in Lawrence v. Texas (2003), but the policy  of  ―don’t  ask,  don’t  tell‖  continues  in  the  military.  The  right  of  same-sex  marriage  has  been established in some locales, but “Defense of Marriage” acts have become law in others.

It is in this context that queer theorists developed their critiques of both feminist and gay and lesbian theories. Continue reading Introduction: Feminist and Queer Legal Theory

by Martha Albertson Fineman

Image by Mohamed Hassan via Pixabay.

Continue reading WOMEN, MARRIAGE AND MOTHERHOOD IN THE UNITED STATES: ALLOCATING RESPONSIBILITY IN A CHANGING WORLD

by Martha Albertson Fineman

ABSTRACT

The societal frame of the “economically disadvantaged” is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it.

I. INTRODUCTION

The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the significance of the human being and a belief in their fundamental parity under law that also asserts the inherent value of individual liberty and autonomy, and thus is skeptical of state intervention into the “private” sphere of life.I believe that one of the most significant questions for the twenty-first century for those concerned with “the disadvantaged” has to be whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it. To raise questions about the current dominant paradigm is not to argue that equality and antidiscrimination are not important or necessary concepts. Equality and antidiscrimination were unarguably essential steps in the evolution of a just society. Prior to the mid-twentieth century, formal rules, as well as functioning norms, were built on assertions of fundamental differences among groups defined by gender, race, and other characteristics. These distinctive group categories also established a world of hierarchical, legalized identities in which some were susceptible to different, often demeaning treatment. However, with the formal distinctions now removed and equal access the norm,1 it becomes apparent that the problems in society often transcend discrimination and exclusion from social institutions. Indeed, there may be substantial problems with those institutions and their organization not revealed by the jurisprudential logic that flows from an equality/antidiscrimination paradigm, which may place obstacles on the ability to remedy (or even address) existing inequalities. An equality model or nondiscrimination mandate certainly remains the appropriate response in many instances: one person, one vote, and equal pay for equal work are areas where equality seems clearly suitable. However, equality is less helpful—and may even be an unjust measure—when applied in situations of inescapable or inevitable inequality where differing levels of authority and power are appropriate, such as in defining the legal relationship between parent and child or employer and employee. Such relationships have historically been relegated to the “private” sphere of life—whether family or market—away from state regulation. When explicitly addressed, situations of inevitable inequality are typically handled in law and policy either by imposing a fabricated equivalence between the individuals or by declaring that an equality mandate does not apply because the individuals to be compared are positioned differently. An example of the imposition of fictitious equality in response to inevitable inequality is evident in situations involving parties who occupy obviously unequal bargaining positions, like the contract that is fabricated in the employment context. The distinction in the legal treatment of children as compared with adults also exemplifies a differently positioned resolution for unequal legal treatment. In both instances, state responsibility for ensuring equitable treatment for differently positioned individuals is minimized or obscured within the overriding framework of equality.”

Martha Albertson Fineman, Beyond Equality and Discrimination, 73 SMU L. REV. F.51 (2020) https://doi.org/10.25172/slrf.73.1.7.

by Martha A. Fineman

image via Pixabay

“Perhaps the law and economics analysis represented in this article is attractive precisely because it offers pat, formulaic answers to the chaos generated by the critical questions increasingly raised about American politics and society by vocal and diverse groups, such as women, who have historically been excluded from institutions of power.  This attraction (and the ultimate utility of the simplistic, formalistic answers) is enhanced by the fact that law and economics is cast as merely a  “methodology,” allowing it to aloofly masquerade as something neutral and susceptible to universal application.

Any claim to neutrality and universality should give pause to any modern student of rhetoric and cultural metaphor. The claim to neutral method, the asserted rationality of the approach, obscures the function  of law and economics which is maintenance or reinforcement of the status quo in regard to existing distributions of power in society. The “economics” informing law and economics is typically inherently conservative.  It presents an ideologically confined and, in this sense, coherent set of principles proposed in pursuit of the ultimate goals such as “choice” and “rationalization.” Law is brought into service of the conservative economic ideology as a way to coercively secure the [re]institutionalization of historically repressive social practices such as patriarchical control over women’s reproductive lives.

Of course, law and economics is about much more than method. Like all discourse to which law is central, law and  economics  manifestly concerns the allocation and perpetuation of power in our society. Unlike some of the other interdisciplinary discourses about law, however, law and economics rhetoric provides an ideological justification for continued acceptance of the increasingly visible imbalances of power. As in “Sex as Contract,” law and economics facilitates the perpetuation of existing inequities by freezing them into place as essential parts of the analysis.

Social beliefs, stereotypes, and status quo-serving assertions emerge in the form of “assumptions” in law and economics literature. These assumptions are structurally necessary in order  to facilitate  the application of an economic model to law. They obviate the need  to delve  too deeply into the underlying social practices—practices of inequality that quite often should be explicitly examined and challenged.  The asserted  neutrality  of the method is based on its abstractness—a rhetorical device that confines inquiry and therefore limits the universe of potential conclusions. In the process, law and economics dismisses as irrational or inferior considerations that are based on different world views or rhetorical orders. Law and economics, in other words, on the level of discourse and ideology is as hegemonic as the patriarchy, classism, and racism for which it provides apologies and “rational” justifications.”

by Martha Albertson Fineman

Image via Pixabay

“Using identities inevitably brings the inquiry back to a search for specific targeted discrimination based on those identities. Those so identified are splintered off from the universal legal subject (the liberal legal subject) and, as a now differentiated part of the whole, measured against the universal ideal to see if differences in treatment, status, or position are impermissible. This comparative process is inevitable in a discrimination analysis, but if we want the inquiry to go to institutional and structural inequalities that are not (or are no longer) based on intentional impermissible discrimination, making multiple identities central to the analysis will be difficult to do in practice and may actually further obscure problems not captured by or transcending those identities. Dowd concedes that it is difficult to both hold multiplicities in mind (and not privilege one over others) and make the analysis relevant to the objective of suggesting institutional transformation through law. Interesting from my perspective is the fact that her book contains few concrete suggestions for engagement with law and law reform. This is not a criticism of the book, which does offer, even if in abstract terms, suggestions and admonitions directed to feminist legal scholars: “Adding men should not mean displacing women, and it requires a willingness to consider the position of the dominant gender group while demanding that the dominant group acknowledge and commit to the achievement of liberation and justice for women while raising men’s and boys’ issues.”³⁴

And in regard to sexual abuse:

[T]he focus on child sexual abuse has unintentionally meant that other forms of abuse have been given less attention. The negative consequences of that focus are disproportionate for boys. In addition, this focus has avoided the reality that women constitute the majority of offenders. The dynamic of that pattern of maltreatment and abuse is a critical part of understanding motherhood that must be addressed.³⁵

My concern with such insights is not that either is inappropriate, but that they seem more directed at giving guidance for the reform of feminist legal scholarship than focused on how legal institutions and practice might be approached and reformed.

Continue reading Feminism, Masculinities, and Multiple Identities

by Martha Albertson Fineman and Silas W. Allard

Image by msandersmusic from Pixabay

“Returning to the “still face paradigm,” we might ask: what lessons are inevitably learned by those currently struggling within a society that appears unresponsive to human need and suffering? How should we respond when the state is unresponsive? Contemporary Western societies are typically organized around values of individualism and autonomy and reflect a faith in free market “principles” to provide for the collective welfare.⁷ In its extreme form (as in the United States of America), the state is seen as mostly unnecessary to individual and institutional prosperity and urged to get out of the way. In this type of neoliberal market-oriented society, belief in privatization and efficiency have not only prevailed, but triumphed, over more socially attentive and responsive models of society. What happens to social cohesion and trust when the individual is held to expectations imposed by a regime of “personal responsibility,” tempered slightly by some recognition of “individual rights” against state excesses? It is a society built around competition, not compassion.

The primary concern of this chapter is the damage that occurs to the social fabric of a society when the failure to thrive is blamed on the individual, and the social institutions and relationships upon which we are all dependent have been drained of the resources they need to provide the minimum component of the constitutionally mandated equality of opportunity and access. It laments the incoherence in the related and contingent social institutions that populate the complex global and market-oriented societies that have been created in the past several decades. These are societies where the means for individual survival, as well as the possibilities for flourishing, are cavalierly assumed to be within an individual’s grasp, ideally not requiring any sustained governmental responses.

Rather than accepting this designation of individual responsibility, we should be asking ourselves, and those politicians and policy makers who shape our institutions, a bevy of hard questions; we should be demanding answers that reflect at least some recognition of social responsibility. To start this inquiry, let us ask those politicians obsessed with austerity to imagine what lessons children learn when the books and other materials they are provided in public schools are outdated and incomplete and the equipment required for even a modestly adequate technological education is both worn and sparse? What do these children understand as necessary for a fulfilling life when music and art are missing from the curriculum and physical education is deemed a luxury? How do children understand the value society gives them when the buildings in which they are “educated” are desperately in need of repairs and their local community refuses to generate the resources necessary to address the problem? How do these children understand their society’s sense of justice and fairness when, at the same time they are experiencing deprivation, they see a multimillion dollar sports complex or some other symbol of societal indulgence for the well-off being constructed with the assistance of public resources?

Continue reading Vulnerability, the Responsive State, and the Role of Religion

by Martha Albertson Fineman

“Autonomy is not an inherent human characteristic, but must be cultivated by a society that pays attention to the needs of its members, the operation of its institutions, and the implications of human fragility and vulnerability. A commitment to equality should not be seen as diminishing the possibilities for autonomy. In fact if we desire a society in which a great number of individuals can exercise autonomy, not only those who have been historically privileged, society must be built on a foundation of equality. Nor should autonomy be confused with isolation, or separation from society. Part of the reciprocity inherent in being a member of society is that everyone has a role to play in ensuring the greater good. Lack of involvement or rejection of responsibility for the needs of others in that society should not be an option. Because we are part of and benefit from society, we must be attentive to responsibilities that extend beyond satisfying one’s own personal and family needs. Autonomy understood through a lens of equality would carry social and reciprocal duties to others; it would not be confused with selfishness, self-absorption and egocentric attention to only one’s own circumstances.

It is also true that state responsibility to the individual in regard to autonomy does not require that there be unfettered or endless choices for those few members who have reaped the benefits of society and its institutions. It should not be the case that the only limitation to accumulation of opportunities. and rewards is an individual’s capacities and resources. The society should be able to define what normative and legal limitations will apply to both methods and modes of individual accumulation. On the other hand, if autonomy is understood consistent with prioritizing equality, that would seem to require that society also provide some threshold of opportunity for everyone. The task would be for the state to exercise its authority to ensure that access and opportunities existed that would provide some minimal, viable number of worthwhile options from which an individual can choose, thus realizing their autonomy.

Of course, “equality” and “autonomy” are abstractions.   Their amorphous, overarching, and imprecise natures mean that both terms can be used by those holding disparate positions on governmental responsibility. My point is that neither equality nor autonomy can be understood in isolation from each other and it seems that one will be emphasized or privileged in society at the expense of the other. So our equality, which is formal and focused on sameness of treatment, brackets off vulnerability and dependency in order to be able to assume away the resulting disadvantages and burdens they place on individuals’ ability to generate options and, thereby, their ability to exercise autonomy. Achieving some viable mechanisms of equal opportunity and access would demand more from the state in terms of rules and regulations restricting the unfettered autonomy of some, as well as a more just reallocation of some existing benefits and burdens within society.”

….

Conclusions—The Need for a More Responsive State

“It must be made clear that the choice is not one between an active state on one hand versus an inactive state on the other. Rather, the choice is whether or not the state is going to act to fulfill a well-defined responsibility to implement a comprehensive and just equality regime that ensures access and opportunity for all consistent with a realistic conception of the human subject. Our present insistence that the state need be constrained underestimates or even ignores the many ways in which the state—through law—shapes institutions from their inception to their dissolution and the ways in which those institutions produce and replicate inequalities. We must show how these institutions operate to produce systems of privilege. To this end, it is imperative to recognize that no one is an autonomous, independent individual.

We all benefit from society and its institutions, but some are relatively advantaged and privileged in their relationships, while others are disadvantaged. Under a vulnerability analysis the inquiry would be into the organization, operation, and outcomes of the institutions and structures through which societal resources are channeled. The state is constituted for the general and ―common benefit – not for a select few.  Under a vulnerability analysis the state has an obligation not to tolerate a system that unduly privileges any group of citizens over others. It has a responsibility to structure conditions in which individuals can aspire to meaningfully realize their individual capabilities as fully as possible.

Continue reading The Vulnerable Subject and the Responsive State

by Martha Albertson Fineman

One hundred years ago, in 1908, two Boston women enlisted Arthur Winfield MacLean to tutor them so they could sit for the Massachusetts bar examination. From that humble but significant beginning grew Portia Law School, which blossomed into the New England School of Law. Portia was the first law school established exclusively for women, who at that time were denied entry into all but a few existing schools of law. This year New England Law celebrates its 100^th anniversary and the integration of women into the legal profession, with women making up over half of the student body at some law schools and making progress in achieving partnerships and professorships.

In 1908, the legal profession was not alone in its exclusion of women.The early twentieth century was a time of entrenched—even celebrated—gender discrimination in American society. Treating women differently and cloistering them away from politics and the professions was justified by assumptions about their inherent distinctiveness as human beings. Certainly, women‘s unique role was valued, perhaps even more so than that of their male counterparts, at least rhetorically. However, the general perception of society was reflected in legal pronouncements that women‘s constitution and temperament meant they were ill-equipped to handle the demands of public and political life. Women‘s divine destiny was found in the nursery and kitchen.

Continue reading Evolving Images of Gender and Equality: A Feminist Journey

by Martha Albertson Fineman

“It is not surprising in a society which offers, as icon, a construct of the autonomous individual and which trusts, as an ordering mechanism, the abstraction of an efficiency-seeking market, that sooner or later there would be a radical attack on any existing notion that there is some collective responsibility for children and other dependent persons. We have a historic and  highly  romanticized affair with the ideal of the private and the individual, as contrasted with the public and the collective, as the appropriate units of focus in determining social good. After all, the very concept of the private defines the domain of the individual- an unregulated space where individual freedom reigns and in which each would-be-king can construct his castle. If a child is part of that private landscape, it is deemed a private matter, not the occasion for public subsidy or support. Children are like any other item of consumption, a matter of individual preference and individual responsibility.

Continue reading Contract and Care