Vulnerability and the Human Condition

by Jennifer Hickey

Katie Darling, a Congressional hopeful from Louisiana, recently released a surprising campaign video that included footage of her giving birth. Darling is certainly not the first candidate to feature her family in a political ad. Candidates often use images of family and home to signal their desirability as “ordinary Joes” who will “put family first.” Yet the raw images of Darling in childbirth are a refreshing display of human vulnerability amidst the usual sea of macho posturing and mudslinging. By centering the transformational moment where life begins, Darling reminds us of our shared humanity and the importance of lawmaking as a mechanism to provide intergenerational resilience. Even more remarkable, she juxtaposes these images of childbirth with a discussion of the importance of access to abortion, sending a powerful message that abortion care is reproductive care; that abortion and family are not antithetical.

She almost got it right. In the ad, she seems to recognize that the state is failing to adequately respond to human vulnerability by not providing resources for education and storm mitigation, two of her three major platform issues. These issues clearly require government intervention and are framed as such. However, lack of quality reproductive healthcare, her third platform issue and arguably the focal point of the ad, is framed as a negative right rather than a problem necessitating government response. She discusses Louisiana’s strict abortion ban using typical liberal minimal-state-intervention language, making the problem seem to be one of government interference rather than inaction. She problematically extends this framing to all reproductive care in a subsequent interview:

“[Pregnancy] is a life-or-death medical condition that needs to be handled in a doctor’s office with a patient and should not be managed by legislators in Washington or in Baton Rouge. It is a private and intimate medical situation and it should be handled that way. Unfortunately, they’ve taken it out of the hands of patients, out of the hands of doctors and put it into the hands of legislators, which is inappropriate and it is an overreach. I wanted to communicate the harm that this kind of legislation causes in an approachable and relatable way by just sharing my story and how it impacts me.”

As I have written previously, reproductive health is absolutely the purview of the state. We can and should expect the state to support the reproduction of society and the creation and maintenance of healthy families. This includes taking affirmative steps to ensure access to quality birthing and abortion care. Darling acknowledges that the state has a general responsibility to provide “access to healthcare,” yet then completely privatizes the matter by asserting that it is overreach for the government to be involved in the relationship between a woman and her doctor. Surely Darling is not advocating that the government abandon women to seek reproductive care alone in a country with a shockingly high maternal mortality rate, a prevalence of obstetric violence, limited access to preferred contraception, and an unjust insurance system that provides quality reproductive care for only a chosen handful. And surely, she appreciates the myriad health and safety regulations that already “interfere” with her relationship with her doctor.

The problem is not that the state is involved; it is the nature of that involvement. We need to imagine a state that is responsive rather than punitive. We must embrace that possibility and advocate for it. We should not be asking the government to simply step aside and leave reproductive care (including abortion) to the private market. Vulnerability theory demands that we ask more of our state. How can we expect lawmakers to fulfill their obligations if we consistently assert that they should not be involved?

Further, Darling, like so many others, is quick to point out in her ad that she is not a “career politician,” as though that is not the exact career she is seeking. I appreciate the sentiment that fresh perspectives are needed in Washington, but demonizing politicians only furthers neoliberal demands for a non-interventionist state. Ideally, politicians represent our interests and are a vitally important vehicle for mitigating human vulnerability through law and policy. We must focus on breaking down this pervasive and harmful “us and them” divide. She had the opportunity to transcend this rhetoric by pushing beyond the typical “family on the farm” newcomer narrative, but ultimately, she couldn’t break free of the liberal constraints that demand she distance herself from the very state she is trying to serve.

It is not enough for our politicians to aspire only to stop banning abortion. We should expect more from our government than to simply leave us to fulfill the enormous responsibility of reproducing society alone.

 

by Roja Fazaeli and Maryam Foumani 

Over the last three weeks we have witnessed widespread protests across Iran and extraordinary shows of dissent from ordinary people. We have been astonished by the bravery of Iranian women who are taking to streets of Iran in acts of protest, removing their headscarves, shaving their heads, demanding rights, autonomy, and an end to the Islamic republic. On Saturday, September 20, Iranian women began a new chapter of feminist resistance when they took off their headscarves and waved them in the air during the funeral of Mahsa Amini. It is fitting that these women-inspired and women-led protests have begun to shake the very core of the Islamic regime. The veiled woman has been the very emblem of the Islamic republic. By removing their veils Iranian women protestors are actively challenging the current Islamic state identity.

Importantly, the protests, which were ignited by the death of Mahsa (Zhian) Amini, a 22 year old Kurdish Iranian killed in custody of the morality police, have transcended ethnic, religious and gender divides to unify Iranians across Iran and beyond its borders under the slogan “Woman, Life, Freedom.”

Continue reading Woman, Life, Freedom – Towards A New Iran

by Dr. Helena Moradi, VHC Postdoctoral Fellow

The vulnerability theory propounded by Professor Fineman provides an alternative to the social contract paradigms for considering governmental accountability and the role of social institutions. Moreover, it offers a feasible methodology of (re)thinking social and political theory with respect to democratic legitimacy, social justice, autonomy, and state responsibility. The theory makes an intriguing contribution to our understanding of the nature of the state, in which the state is viewed as more than just an instrument for managing common interests. This critical perspective allows us to (re)think democratic governance, legitimacy, as well as the function and role of the state to also include a more expansive understanding of state responsibility which also entails an assessment of the infrastructural powers that often lie hidden in the background but that nevertheless constitute our everyday lives. To further expound on this infrastructural approach and its impact on individuals and the organization of the state, we shall look to the Nordic model in general, and the Swedish in particular.

Continue reading Infrastructural Power and the Nordic State

by Martha Albertson Fineman

Excerpts from this piece by Martha Fineman raise questions and suggest alternative approaches that should be considered by policymakers as we build a sturdy reproductive justice framework for the future.

“A. Constructing the Collective

Both a human rights and a vulnerability approach are concerned with the rules governing human beings and the societies in which they live. However, a rights-based approach is grounded in liberal legal and political theory, whereas the individual of theoretical concern is the venerated holder of rights, ideally autonomous, independent, and cherishing his individual liberty.37 In contrast, vulnerability theory views this particular construct of the individual as ideological and “empirically indefensible” when assessing the appropriate relationship between the individual and society.38 A vulnerability analysis argues that a concern with rights focuses on the individual as an entitled and independent actor and consequently tends to “obscure[] the continuous and basic role the state plays in society as a whole, as well as the ways in which it defines the lives of all individuals within it.”39

The whole idea of individual rights tends to assume an ideally restrained or necessarily aloof state that may provide some basic essential services but is fundamentally uninvolved in orchestrating the mundane aspects of individual lives. The idea of individual rights, understood in its “negative” sense, serves as a check on the development of an overly active state.40 Of course, the idea of human rights can also be used to make positive claims for economic or social benefits against the state. However, broadly constructed positive rights claims are historically viewed as exceptional, in need of justification, disfavored, and, if recognized, are often in practice under- or unenforceable.41

Continue reading Rights, Resilience, and Responsibility

by Martha Albertson Fineman

The following essay appeared in the catalog for Social Pharmacy, a social art piece by Jody Wood that features “a site-specific exchange of health remedies.“

Jody Wood’s innovative artistic method involves selecting significant social issues or practices to explore and combining the empirical insights of the social scientist with the critical and creative vision of the artist. This critical and constructive interdisciplinary approach has the potential to yield unique and productive insights into those social practices that we may otherwise take for granted. As an artist, her task is not to merely represent or conceptually exemplify reality, but to also reveal transformative possibilities. She seeks to directly engage those encountering her work in this creative process, bringing them into the work as participants rather than mere observers or onlookers. In doing so, she compels us to not only see, but to care about these social practices and the effects they have on our individual and social lives.

In some of her earlier work, Jody addressed pressing issues of societal failure, such as homelessness. Among the significant consequences exposed were the stigma and exclusion imposed on certain members of society as a result of their housing status. The need for compassion and effective social policy in regard to housing for the disadvantaged and dispossessed is certainly important and this project successfully raised those issues. However, while it may have generated feelings of sympathy and concern, the focus on only the situation of some also permitted the viewer of the piece to stand separate and apart: to perceive what is a universal need in terms of “us” (the successful and housed) verses “them” (the unsuccessful and unhoused). The need for shelter is something that all humans share, the critical emphasis on the status of homelessness and the situation of only some deprived individuals obscured the implications of this universal shared reality.

This current piece, The Social Pharmacy, moves beyond a focus on a marginalized segment of population to speak to the dependency and vulnerability that consistently marks every human life. Our vulnerability arises as a result of the fact that every individual body can and will become ill, be injured or find itself otherwise in need of healing. This reality necessitates that we will be dependent on social institutions and relationships throughout our lives. Such a universal perspective, which begins with recognizing the fragility of the body, seems particularly appropriate in this pandemic era. Covid-19 has had tremendous individual and societal consequences that seem to elude both medical and political resolution. The pandemic teaches us (once again) that many problems are beyond individual control and that expectations of self-sufficiency and autonomy are limited at best. The current situation also should make it clear that dependence on social institutions and relationships is inevitable, not exceptional, but normal and routine. A failure to recognize this reality and collectively and individually respond can have devastating destructive consequences for individuals and for societies. We must find and implement society-wide responses to this collective threat to our well-being.

Jody’s artistic intervention by creating a Social Pharmacy also directs us to consider an even more expansive lesson when it comes to social needs: the process of recognizing and responding to human vulnerability and dependency can have positive effects and generate creative opportunities on both an individual and societal level. On an individual level, the project gives us the opportunity to learn and grow from absorbing the stories of those who produced and shared their home-made remedies. These stories can provoke us to “discover” (or uncover) our commonalities with those individuals and generate feelings of recognition and compassion.

In addition, by engaging with these stories, we collectively can create a sense of connection that can tie us together as a community. This process of connecting through engagement is what Jody refers to as “performing collaborative caring,” which, while offered outside of formal institutional structures, hopefully will have implications for how each of us assesses the design and operation of those formal institutional structures going forward. An important contribution of any artistic work is the questions it raises as it challenges the ways in which we had formerly perceived the world. One compelling question taken from this exhibit of collective caring might be: do our healthcare and social welfare systems respond to the realities of human vulnerability and dependency, or are they distorted by an excessive emphasis on the myths of independence and individual autonomy and self-sufficiency? Another might be to ask how we might make those systems better, more responsive to our shared vulnerability and dependency.

Emphasizing the need for community and collective caring does not diminish the status of the individual. An important aspect of this exhibit is that it offers us a lesson about the significance discrete actions can have on the collective welfare. The request that an individual leave behind their own home remedy in the Pharmacy when taking one made by another could be viewed as no more than a “transactional” and individualistic exchange. However, the interpretation more in line with the communalist message the Social Pharmacy coveys is that each individual has been given the opportunity to contribute to the common good, to respond to the collective need. Far from being an obligation, those contributions both express and affirm the individual’s membership within and value to society.

The Social Pharmacy brilliantly reminds us that one important function of art is to provoke critical thought and generate discussion. In this way, art can provide a vital framework for individual and collective assessment of the society in which it is generated and which it ultimately reflects.

Martha Albertson Fineman

Robert W. Woodruff Professor of Law

Founding Director, Vulnerability and the Human Condition Initiative

Emory University, Atlanta Georgia, USA

Below is a statement written by Spring 2022 visiting scholars, Cecília Pazinato Marcon and Maria Fernanda Marques.

During our time as virtual visiting scholars, we had the opportunity to learn more about Professor Fineman’s Vulnerability Theory, and together with our study group in Brazil concerning the Theory, we realized how important the Theory could be to analyze several issues in the Brazilian legal system. There are social, economic, and political rights protected and guaranteed in the Brazilian Constitution of 1988, and there is already a debate concerning this idea of a responsive state, so we thought Vulnerability Theory would be a great contribution to that debate, to expand it beyond the field of constitutional law.

Our study group in Brazil is currently made up of four people: Fabrízia Serafim, who recently completed her Ph.D. at Emory; Fábio Braga, a Ph.D. student at UFPR in Brazil; Cecília Marcon and Maria Fernanda, both undergraduate students of Law at PUCPR and UNEB in Brazil as well.

We have translated to Portuguese one of the very first articles of Prof. Fineman concerning Vulnerability Theory, “The Vulnerable Subject: Anchoring Equality in the Human Condition.” We are currently working on our following translation: “Reasoning from the Body: Universal Vulnerability and Social Justice.” And we intend to continue translating other articles so that more people from Portuguese-speaking countries can get in touch with the Theory. We also have plans to expand and formalize our group.

by Pauline Schneider, University of Freiburg

By questioning the adequacy of existing background institutions, vulnerability theory provides a valuable tool for advocating improvements in one country. However, during my time at Emory as a German PhD student (University of Freiburg, Germany), I found that this is not the only possible application of the approach. In Prof. Fineman’s Spring 2022 seminar, I experienced every week that vulnerability theory is also an insightful tool to compare different countries. By uncovering basic assumptions and fundamental legal structures, the approach provides valuable comparative objects that can give a better explanation for different outcomes. When an improvement of outcome is desired, comparative vulnerability analysis can also reveal which changes are required on a fundamental level.

Throughout the seminar, in particular three differences in basic assumptions between the U.S. and Germany became apparent to me.

The first was the role of the state and its assumed capacity to act. As we discussed the justification and high responsibility of the state in vulnerability theory, I felt that it was much more “natural” for me than for my American colleagues to understand the capacity that the state has – opposed to other actors – to provide resilience for the citizens. I already knew before the beginning of my studies in the U.S. that the American conception of the state is much more (neo)liberal, but I was still surprised at how deep a fundamental skepticism about the state runs in individuals. Throughout my life (and even during my time abroad in France), I have felt deeply connected to the state – almost naturally embedded. The American students told me that they had never thought of their state that way.

The second aspect concerned civil society. When we discussed in class its role and situation in the U.S., it quickly became clear to me that its role is quite different in Germany. I learned that in the U.S., besides in churches, a decreasing amount of people are involved in civil society and that young people do not belong to any political party. I, on the hand, reported that, at least in my social circle in Germany, almost everyone is active in several clubs. It is also very common, especially for law students, to be a member of, or at least affiliated with, a political party. We also talked about how clubs are highly regulated in Germany. If they are “against criminal law” or against the “idea of international understanding” they are prohibited. I mentioned that in law school I wrote at least two exams in administrative law that dealt with this prohibition. It was irritating to me that in the U.S. “bad civil societies” cannot be prohibited by law.

The third aspect was education. I always knew that free education, including free higher education, is an important value in Germany, but it wasn’t until the vulnerability seminar that I understood how far-reaching it can be to not have it. When we talked about resilience through education, it was baffling to me that college and especially law students were being told that they were a market product, that they needed to sell in the best way possible. I realized that the necessity of getting a good job to pay for the cost of education changes the whole perspective. I felt fortunate that I was able to spend an extended period of time in law school (6 years) and that I had the freedom to slowly find my place in the legal community.

Right now, I am about to finish my final paper comparing the U.S. health care system with the German one from a vulnerability perspective. Here, too, major differences are becoming apparent, the uncovering of which can hopefully provide for improvements.

For the future, I am sure that more comparisons like this are waiting. I am happy and extremely grateful to have learned vulnerability theory during my time at Emory. I cannot wait to continue working with the approach when I am back in Germany.

by June Carbone and Martha Albertson Fineman

“Sociologists talk about the role of family law in terms of its promotion of the “institutionalization” of the family. Institutionalization involves the creation of normative expectations, the coordination of behavior, and the regularization of roles associated with family formation, conduct, and dissolution. Carl Schneider (1992) described this institutionalization as accomplished through the “channeling function” of family law. Law’s channeling in the family context is less coercive than it is in, for example, criminal law, but more directive than the reliance on voluntary assumption of obligations found in areas such as contract law.

Two long-term developments currently are reshaping families and transforming family law: greater autonomy for women and growing economic inequality in Western societies. These changes have eroded the formerly near-universal acceptance of marriage as the only appropriate site for childbearing. Growing inequality has created a menu of options in family formation that are importantly shaped by class. Today, marriages tend to occur much later in life, if at all. Some commentators suggest marriage has become a “status symbol,” attainable only by those who have achieved both maturity and financial stability.
Sociologist Andrew Cherlin (2004) has also noted a move away from the social norms that once guided young people into marriage and kept them there. These norms imposed gendered roles that marked entry into adulthood across society (and which also fostered the dependence of wives on wage-earning husbands).

Modern relationships are seen as part of a quest for individual expression and fulfillment rather than societally mandated institutional obligations. Cherlin describes related societal changes, such as the growth in non-marital cohabitation and same-sex unions, as representing the “deinstitutionalization” of American marriage. Such normative “innovations” in coupling have also been viewed as undermining the very institution of family.”

….

II. The “Deinstitutionalizing” of the Traditional Family
The deinstitutionalization of the family occurred in response to three “revolutions” that took place mid-twentieth century: the gender equality, sexual liberation, and no-fault divorce movements. These forces redefined the relationship between men and women, remade expectations for work and family, and decoupled marriage and reproduction. (Jacob)

During the late sixties and early seventies, states began to lower the age of political majority from twenty-one to eighteen. This culminated in a constitutional amendment that lowered the age of majority on a national level, and eventually a Supreme Court ruling that extended the privileges of adulthood to teens. This change in the legal age had the inadvertent effect of making the newly available birth control pill legal on college campuses without parental approval. Economists Goldin and Katz indicate that the greater availability of the pill correlated with a significant delay in the age of marriage, women staying in school longer, and a dramatic increase in female enrollment in graduate and professional schools. (Goldin and Katz). The legalization of abortion in 1973 saw adoptions, which peaked in 1970, cut in half by 1975 as teen births steadily declined.

These changes had a profound effect on family formation. First, education increased women’s independence – even the mothers of small children could conceivably support themselves. Second, as women directed more energy to market labor, men were expected to contribute more to childrearing. Third, women gained greater control over their own sexuality, as much of the stigma associated with nonmarital sexuality was removed and pregnancy prevention became accessible. The transformation of women’s roles that came with the waning of the industrial economy prompted a revolution in family law. (Jacob)

The divorce law of the industrial era permitted marital dissolution only if one party (and one party alone) was at “fault.” Flouting well-defined marital obligations justified freeing the other spouse from the bonds of what was seen as an already defunct union. If both parties were at fault, however, neither could obtain a divorce. Perhaps in light of the growing independence of women, demand for divorce rose. Spouses colluded and ‘divorce factories’ rose up to help them. (Jacob) It was said that adultery was proved with certainty only where it hadn’t occurred, as where one of the spouses might agree to be photographed with a paid model outside a hotel to “prove” that divorce grounds existed. These practices discredited the process and increased the demand for divorce reform over the course of the twentieth century. When the dam obstructing reform efforts gave way, divorce reform swept the country with every state liberalizing the grounds for divorce between 1969 and 1985. The incidence of divorce grew dramatically, and single parents became a common occurrence.

As the stigma associated with non-marital sexuality declined, so did the legal distinctions between marital and non-marital children. In England, “illegitimate” children were said to be filius nullius, literally, the child of no-one, unable to inherit from their mother or father. In 1972, the United States Supreme Court struck down state laws distinguishing between marital and non-marital children with respect to inheritance. (Levy v. Louisiana) In the same year, it also held unconstitutional the refusal to recognize as a legal parent an unmarried, biological father who had lived with the mother and children. (Stanley v. Illinois) In the years that followed, family law eliminated most of the remaining distinctions between marital and nonmarital children.

Finally, custody law shifted from a model that presumed that children of tender years would be better off with their mothers, to one that assumes that children benefit from the continuing involvement of both parents. This legal shift dismantled the gendered roles of “mother” and “father” and replaced them with a more neutral parenting model.

Fineman, Martha Albertson and Carbone, June, Family Law in the United States (May 15, 2014). International Encyclopedia of the Social and Behavioral Sciences (2nd ed. Forthcoming), Minnesota Legal Studies Research Paper No. 14-25, Available at SSRN: https://ssrn.com/abstract=2437453 or http://dx.doi.org/10.2139/ssrn.2437453

by Andrew Pilliar

“3. The Core of the Conception: Universal Human Vulnerability

One fruitful approach that offers a way to transcend the universal/individual dichotomy is the vulnerability theory proposed by legal theorist Martha Fineman.597 This analytical framework takes human vulnerability, which is a necessary product of human embodiment, as a potent touchstone by which to revitalize the state’s relationship to its citizens.598 By placing this idea at the centre of the concept of access to justice, we can generate a normative framework that is both attentive to the particular needs of each individual and also universal in scope.

Fineman describes vulnerability as “universal and constant, inherent in the human condition”599, and as “…the characteristic that positions us in relation to each other as human beings, as well as forming the basis for a claim that the state must be more responsive to that vulnerability.”600 It is “the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional, or otherwise.”601 In Fineman’s analysis, vulnerability is a concept that is important “for its potential in describing a universal, inevitable, enduring aspect of the human condition”,602 and one “freed from its limited and negative associations”603 such as “victimhood, deprivation, dependency, or pathology.”604 Fineman’s effort to rehabilitate vulnerability and move it away from negative associations like deprivation resonates with the idea of moving away from the privation of access to justice problems.605 She develops the concept of vulnerability explicitly to “develop a more complex subject around which to build social policy and law; this new complex subject can be used to redefine and expand current ideas about state responsibility toward individuals and institutions.”606

Continue reading Understanding the Market for Personal Legal Services to Improve Access to Civil Justice in Canada

Continue reading Three Faces of Privatization