The Vulnerable Subject and the Responsive State

by Martha Albertson Fineman

Image by skeeze from Pixabay

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

Taking Children’s Interests Seriously

by Martha Albertson Fineman

Image by engin akyurt from Pixabay

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.

Taking Children’s Interests Seriously
Martha Albertson Fineman

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

Why Marriage?

by Martha Albertson Fineman

Image via https://pixabay.com/users/qimono-1962238/

“In 1974, when I was a law student in a class called Injunctions, we often struggled through the factual and legal complexities of an opinion determining whether an injunction should issue. My professor, Owen Fiss, was fond of reminding us after each such session that the object of this entire struggle – the injunction – was “only a piece of paper.” His point was that it takes more than the issuance of some form or document to make things happen, to transform the status quo. Words are, after all, only words. Standing alone, they often are not worth much more than the paper upon which they are written. Instead, it is the interpretation and implementation that really matter-not the issuance of the document, but what comes next, that confers content and meaning.

I cannot help but reflect upon this bit of practical-injunction-realism when confronted with the many questions that emerge in response to contemporary policy discussions about the need for laws to strengthen the institution of marriage. Like an injunction, marriage is reducible to a piece of paper-the marriage license. This piece of paper distinguishes one on-going relationship from others, not officially designated marital in nature. Yet what meaning does marriage have beyond this fragile manifestation?

This question asks us to consider what we imagine to be the content, purpose, and function of the institution we call marriage. This consideration raises two additional questions of relevance. First, what does the word”marriage” convey to us as individuals? In addressing this question, we look at marriage from a personal perspective-as a cultural and social practice in which we engage. Second, what does marriage convey to us collectively-as a society? From this perspective we look at the functions marriage performs on political, ideological,and structural levels-its construction in law and policy .

Clearly, to both individuals and society, marriage constitutes a legal relationship. Through law, the state defines who may marry and the consequences of marriage at dissolution of the relationship, be it by death or divorce.In this regard, all marriages within a jurisdiction are standardized. Law may establish uniform standards,specifying who may marry whom and what formalities must be observed. Law may also define what economic and other consequences attend the dissolution of the marriage relationship. The ultimate content and conduct of marriage from an individual perspective is, however, far from clear. This is because of the way that society and law have given existing marriage relationships “privacy,” thereby shielding them from supervision. For on-going marriages the norms are non-intervention and minimal regulation. In some other on-going formal and legal relationships that are embodied in pieces of paper-the relationship between shareholder and corporation, for example-there is no expectation of privacy. Rights and obligations are defined, limited, and structured so that the range and nature of interactions are predictable and potentially publicly enforceable. By contrast, the issuance of a marriage certificate does not determine the conduct of any specific marriage, what it means to its participants, or how those participants will function within the relationship. The laws governing marriage leave the day-to-day implementation of marriage to the individuals. The conduct of the parties defines their marriage, giving it content and meaning. Marriages are individualized, idiosyncratic arrangements;even external articulations of what constitutes “ideal”relationships may influence them. The law recognizes and reinforces this individualized characteristic of marriage through the doctrine of marital privacy. Except in extreme situations, there are no legal enforcement mechanisms to ensure compliance with standards of conduct imposed generally across marriages. The result might be characterized as creating a vacuum of legally mandated meaning for marriage-a vacuum that is to be filled with various non-legal, sometimes conflicting, individual aspirations, expectations, fears, and longings.

Reflection on the prospect of varied, individualized possibilities for the meaning of marriage suggests, that in order to answer the question “why marriage?” we must first consider “what marriage?” or more succinctly, “what is marriage?” Questioning what marriage actually is calls attention to the institution’s individualized and malleable nature. By contrast, a focus on “why marriage” highlights the societal function and rationale for the institution. I will discuss each question-the “what” as well as the “why” of marriage.

Marriage has various meanings to individuals entering into it. Marriage can be experienced as: a legal tie,a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfillment, a societal construct, a cultural phenomenon, a religious mandate, an economic relationship, a preferred reproductive unit, a way to ensure against poverty and dependency, a romantic ideal, a natural or divined connection, a stand-in for morality, a status, or a contractual relationship.

Marriage also has multiple potential meanings to the society that constructs and contains it. From the state’s perspective, marriage may mean the imposition of order-necessary for record-keeping purposes (e.g., to facilitate property transfers at death). Marriage may also be viewed to provide order in a different context. It has been argued that marriage is the preferred method of containing and harnessing [male] sexuality in the interests of the larger society. Marriage can reflect the moral or religious convention of a society-a symbolic function. Marriage can also be the site where essential reproductive tasks are preformed for society. Society must reproduce itself both through the production of children and the educating and disciplining of those children into workers, voters, and productive citizens-tasks traditionally undertaken by the marital family. In this way, marriage can also be seen as serving society by taking care of the dependency and vulnerability of some members of the marital family. Finally, marriage can be the mechanism through which society distributes and delivers social goods to its citizens.

We should be clear about which of the many ways of thinking about marriage are informing the arguments that we make and the policy that we propose. If we remain clear about the role or function of marriage to which we subscribe – how we are filling the marriage-meaning-void-our own answer to the question, “why marriage?” may be revealed. In advocating for marriage, it may be the case that we are inappropriately substituting an individualized meaning for a societal rationale for the institution. Only societal-based rationales make legitimate societal regulation and control of marriage. Further, some of the historically societal based rationales for marriage may no longer seem appropriate in our changing world. For example, a couple may want to marry because marriage has a certain societal meaning: access to state subsidy in the form of economic and social benefits not available to other forms of sexual affiliation. The couple may also want to marry because of the institution’s individual meaning: a symbolic manifestation of their relationship that will affirm their commitment to each other. If, however, the couple is a same-sex couple, some religious leaders and politicians will oppose such a marriage because they regard marriage as a natural, divinely ordained relationship (an individualized, religious meaning), traditionally and appropriately confined to heterosexual couples (moral or tradition-based societal meaning).’ In a secular society such as ours, however, only the second reason warrants consideration. The issue then becomes whether the societal function of marriage as the mechanism to provide economic benefits and protection is appropriately limited by the moral or traditional meanings of marriage. The questions we would confront in this type of balance would include: when should history and tradition give way to new patterns of behavior; when should law reflect a moral position, particularly when there is no societal consensus that certain conduct is moral or immoral?

As illustrated in this example, the question “why marriage?” might become more complicated and difficult to answer if we must first reveal the meaning (or meanings)we assign to the institution of marriage. This type of consideration forces our focus away from nature or form of the marital relationship to the role or function we want the institution to serve in our society. It also reveals that we are making certain assumptions about the capabilities and capacities of marriage as distinguished from other relationships in society-assumptions about its unique ability to accomplish certain societal functions.

The concept of marriage, and the assumptions it carries with it, limit development of family policy and distort our ideology. The availability of marriage precludes consideration of other solutions to social problems. As the various (and by no means exhaustive) meanings of marriage listed above indicate, marriage is expected to do a lot of work in our society. Children must be cared for and nurtured, dependency must be addressed, and individual happiness is of general concern. The first question we should be asking is whether the existence of a marriage is,in and of itself, essential to accomplishing any of the societal goals or objectives we assign to it.

I argue that for all relevant and appropriate societal purposes we do not need marriage, per se, at all. To state that we do not need marriage to accomplish many societal objectives is not the same thing as saying that we do not need a family to do so for some. However, family as a social category should not be dependent on having marriage as its core relationship. Nor is family synonymous with marriage. Although both of these things might historically have been true, things have changed substantially in the past several decades. Marriage does not have the same relevance as a societal institution as it did even fifty years ago, when it was the primary means of protecting and providing for the legal and structurally devised dependency of wives.

The pressing problems today do not revolve around the marriage connection, but the caretaker-dependent relationship. In a world in which wives are equal partners and participants in the market sphere, and in which the consensus is that bad marriages should end, women do not need the special protection of legal marriage. Rather than marriage, we should view the parent-child relationship as the quintessential or core family connection, and focus on how policy can strengthen this tie. Thus, in a responsive society, one could have a marriage [or other long-term sexual affiliations] without necessarily constituting a”family” entitled to special protection and benefits under law. Correspondingly, one might have dependents, thereby creating a family and gaining protection and benefits,without having a marriage.

If this suggestion seems extreme and radical, it only serves to demonstrate the extent to which marriage continues to be uncritically central to our thinking about the family. What is bizarre is that it remains central in spite of the fact that the traditional marital family has become a statistical minority of family units in our society. The tenacity of marriage as a concept explains the relatively unsophisticated and uninformed policy debates. Marriage,as the preferred societal solution, has become the problem. The very existence of this institution eclipses discussion and debate about the problems of dependency and allows us to avoid confronting the difficulty of making the transformations necessary to address these problems.”

Fineman, Martha Albertson, Why Marriage? (2001). Virginia Journal of Social Policy and the Law, Vol. 9, No. 1, p. 240, 2001; Emory Legal Studies Research Paper No. 12-204. Available at SSRN: https://ssrn.com/abstract=2075914

Upcoming Workshop on Vulnerability and the Organization of Academic Labor

Our workshop on Vulnerability and the Organization of Academic Labor will take place next Friday and Saturday at Nottingham Trent University. Interested? You can follow us @VHCInitiative on Twitter or @VulnerabilityAndTheHumanConditionInitiative on Facebook for updates. Information about the workshop from our call for papers is below:

“Vulnerability, which arises from the fact that we are embodied beings, is the universal human condition. While this insight is important to understand how human beings are inevitably embedded within social institutions, such as the workplace and systems of education, the language of vulnerability also allows us to analyse institutional forms of organisation and operation. As human creations, our institutions are vulnerable to capture, corruption, failure and change, which can frustrate or pervert the vital role they play in regard to the wellbeing of individuals and the reproduction of society. This workshop is interested in exploring the intersection of individual and institutional vulnerability in the context of academic labour, with special interest in legal academics, law schools, and the legal profession. We invite participants to interrogate the purpose of legal education in relation to the reproduction of democratic societies, with attention to the complex and interlinked nature of vulnerability in legal education, legal practice, and legal governance. We believe that the discipline of law, along with other social and political institutions, plays an important structural role in codifying orcontaining norms and values, and also in defining the roles and relationships of the professional and professional institutions within society. Framing this discussion around the legal profession is thus a useful launching pad for a broaderdiscussion of academic labour and the neoliberalization of the academy more generally.University-based legal education around the world is subject to serious pressures that threaten to distort its mission and undermine the resilience of its academic practitioners. Sources of resilience are degraded by many features of modern academic life. Of deep concern is audit culture, which relies upon metrics that incentivise gaming, undermine professionalism, and produce professional alienation through demands to respond to distorting and distracting metrics. Universities are also increasingly spaces of precarious employment, which both generates economic and psychological insecurity and undermines professionalism through the fragmentation of tasks. Modern workplaces are shaped by an incessant need to respond to change in the disciplinary, institutional, technological, and performative realms – a feature of reflexive modernity generally and managerialism in particular. Finally, the marketisation of education tends to perceive the legal educational mission as instrumental rather than ethically or culturally meaningful, thus adding to alienation. Legal professional work is also impacted by forces that can degrade the resilience of practioners, which has implications for the content and design of legal education. Precarious employment, new types of sub-professional employment (para-legal positions), and the de-skilling of tasks through workplace organisation and uses of information technology have all shifted the foundation of lawyering as a profession. At the same time, there is a constant pressure to increase billing hours alongside the neglect of mentoring and development and employee wellbeing. Contemporary notions of professionalism have become increasingly narrow in focus, as market forces have transformed professional relationships into commercial transactions and contributed to the commodification of services. How law schools and individual academics should respond to these changing life chances of their students is unclear and under-researched. On a global level, the public sphere of debate and trust in law as a fair and efficient instrument of governance is under strain in an era of rising populism – and the role of law schools and legal professionals in responding to this threat is under-theorized and under-articulated. This Workshop seeks to explore how a vulnerability focus might help us to rethink such fundamental questions of social and structural responsibility, and the mechanisms of governance required to translate these frameworks into action.”

The Individual in Social and Legal Contexts: There Can Be No “I” Without the “We”

by Martha Albertson Fineman

Image via https://pixabay.com/users/geralt-9301/

Contemporary Western systems of law and justice reflect a preference for liberty and autonomy. An independent and fully-functioning adult constitutes the ‘idealized ordinary” or paradigmatic subject­ – the being whose professed capabilities, aspirations, and needs guide the generation of policy and law. This legal subject is one among equals, inhabiting a world that valorizes personal, not societal responsibility. State intervention or regulation is perceived as a violation of liberty. Social arrangements and institutions, such as family and corporation, are deemed “private,” even though they have significant implications for the well-being of society and for children and those not self-sufficient. Suggestions for public supervision are easily deflected by ideological constructs, such as family privacy, meritocracy and free markets.


Vulnerability theory rejects this static deficient misrepresentation of what it means to be human, arguing for the recognition of a legal subject reflecting the complex and varied lives actually lived by human beings. The concept of the “vulnerable subject” recognizes that human beings are first and foremost embodied beings who are inherently, universally, and constantly “vulnerable.” The term vulnerable is used to reflect the reality that throughout the life-course we are constantly susceptible to changes in our bodily or physical well-being. Changes in embodiment can be developmental, evolving as we move from birth to death. Such changes can be negative and located in our mortality, or positive, reflecting our growth and increasing capacity. Changes in bodily well-being often result from circumstances over which individuals have little or no control: accident, illness, or catastrophe (naturally occurring or humanly provoked). We must therefore understand vulnerability as the human condition – not just a characteristic of some particularly or uniquely weak or disadvantaged individuals.


It is the second assertion of a vulnerability approach that is particularly significant to the claim that there cannot be an ‘I’ without the ‘We.” Because there is no position of invulnerability and we are born, live, and die within a fragile materiality, we are also of inevitably embedded beings. Individual and collective vulnerability must be compensated for, accommodated. or mitigated if human beings are to survive, which leads us to form social relationships and institutions ranging from the family to the nation state and beyond. In other words, a functioning and responsive social unit is the only (although only partial) antidote for human vulnerability. Embodiment forces us into relationships of dependency on others, be those others individuals or institutions. This inescapable reliance is most evident in childhood when we are dependent on others for care. But the prospect of dependence may also attach to aging, disability, or illness.

Our dependence does not end with the intermittent need for care, however. Throughout the life ­course we are dependent on social relationships and institutions to provide us with resilience. Resilience allows us to weather inevitable change; not only to survive, but thrive in the face of our vulnerability. Importantly, no one is born resilient. Rather, resilience is produced over time and within and through social institutions and relationships. Nor is it distributed consistently across society. Individuals are more or less resilient in relation to the material, social, human capital, relational and existential assets and advantages they have accumulated. This inequality should turn everyone’s attention to how existing social arrangements are functioning.

While lack of resilience is typically attributed to individual failings under a regime of individual responsibility, vulnerability theory focuses on the functioning of social institutions. When established equitably and functioning fairly such social arrangements can and do respond to, mediate, compensate, and mitigate vulnerability. But that is not always the case. As human creations, social arrangements are also, although differently, vulnerable. Institutions can be corrupted and captured, as well as decline and decay. They can cause harm and create situations that exacerbate or exploit human vulnerability.


Social relationships contained within these institutions are often unequal in terms of power and privilege. We recognize this to some extent when we make laws against discrimination based on certain identity characteristics, such as race or gender. But vulnerability is universal and its implications transcend traditional identity categories. It is our social identities – those of employer/employee, parent/child, creditor/debtor – that must be brought under consideration and changed when inequitable.


Societal relationships and institutions are shaped, reinforced, and modified in and through law. There is no such thing as an inactive or noninterventionist state. The question is in whose interest its relationships and institutions are fashioned. A vulnerability approach insists the answer to that question must be the vulnerable subject and that, at a minimum, the state should bear responsibility to ensure that relationships and institutions are justly structured and fairly functioning. Vulnerability theory thus provides a heuristic device for raising questions currently overlooked in order to advance a social justice model applicable to all individuals.

Vulnerability and Social Justice

Martha Albertson Fineman

Image by John Hain from Pixabay

“What, if anything, does the designation of “social” add to the ideal of justice? The phrase “social justice” is a rallying cry in progressive circles, perhaps because justice unmodified seemingly fails to convey the magnitude of the underlying demand for change. However, the meaning of the term is not particularly clear, nor is it used in a consistent manner. This Article briefly considers the origins of the term social justice and its evolution beside our understandings of human rights and liberalism, which are two other significant justice categories. After this reflection on the contemporary meaning of social justice, I suggest that vulnerability theory, which seeks to replace the rational man of liberal legal thought with the vulnerable subject, should be used to define the contours of the term. Recognition of fundamental, universal, and perpetual human vulnerability reveals the fallacies inherent in the ideals of autonomy, independence, and individual responsibility that have supplanted an appreciation of the social. I suggest that we need to develop a robust language of state or collective responsibility, one that recognizes that social justice is realized through the legal creation and maintenance of just social institutions and relationships.


A vulnerability approach is not centered on specific individuals or groups or on human and civil rights. It is not a substitute term for weakness or disadvantage, nor is it just another way to indicate impermissible discrimination. Rather, addressing human vulnerability calls into focus what we share as human beings, what we should expect of the laws and the underlying social structures, and relationships that organize society and affect the lives of everyone within society. These institutions and relationships also reflect our values and norms and define the expectations for all individuals in their interactions with each other, as well as defining legitimate expectations for the state and those who govern it. While it does not prescribe a specific form of state organization, vulnerability theory does call for a state that is responsive to universal human needs and for the reorganization of many existing structures, which are currently based on a conception of legal order that unduly valorizes individual liberty and choice and ignores the realities of human dependency and vulnerability.”

Forthcoming in 53 Valparaiso University Law Review, 2019

Source: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3352825

Public Procurement / Government Outsourcing

A conversation with Dr. S.N. Nyeck

Our latest episode of Voices in Vulnerability features an interview with Visiting Scholar, Dr. S.N. Nyeck. Dr. Nyeck is an international scholar known primarily for her work on gender and sexuality politics in Africa. Her current research delves into the history and impact of government contracting from ‘colonial’ times to the present. In our interview, Dr. Nyeck asks, “What is the future of democracy when governance is done by contracts?”

Listen to our interview, learn more about Dr. Nyeck, and find her book.

Beyond Identities: The Limits of an Antidiscrimination Approach to Equality

by Martha Fineman

image via https://pixabay.com/users/qimono-1962238/

“This article compares the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense – as a nondiscrimination mandate – and equality in its broader, substantive sense – as establishing a positive right to access the social goods or resources necessary to sustain equally valued individuals. The article ultimately argues that the foundational difference between the manner in which equality is understood in the United States and how it is understood in much of the rest of the world arises from the recognition and acceptance in other countries that human need and vulnerability are not only an individual responsibility but also a state responsibility.

The U.S. Constitution is ancient by international standards, and it embodies and idealizes an antiquated political-legal subject and a restricted sense of state responsibility that is unrealistic for defining the appropriate legal relationships that exist between the modern state, the lives of individuals, and the operation of complex societal institutions. Clinging to the idea of a “liberal” constitutional or political legal subject that was prevalent when the U.S. Constitution was drafted has impeded the evolution of a concept of equality that would complement our developing understanding of what is necessary in terms of state responsibility to ensure that all people are treated as “created equal.” This article concludes by offering the concept of the “vulnerable subject” as a more viable and appropriate figure around which to build contemporary policy and law and suggesting some measures legislatures and courts could take to build a more responsive and responsible state that would function to ensure meaningful equality of access and opportunity. “

See more here.

Equality and Difference – The Restrained State

by Martha Albertson Fineman

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“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.”

Read more here: https://www.law.ua.edu/pubs/lrarticles/Volume%2066/Issue%203/Fineman%20Online.pdf.

Are Emotions Universal?

by Jennifer Hickey, Esq., Postdoctoral Fellow, Vulnerability and the Human Condition Initiative

polar bears cuddling
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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.