Vulnerability and the Human Condition

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.

Continue reading Beyond Equality and Discrimination

by Martha LA Fineman

“Twenty-five years ago, shortly after my own successful, but nonetheless harrowing bid for tenure, I began the Feminism and Legal Theory Project (FLT) at the University of Wisconsin. The explicit purpose was to provide a supportive and encouraging environment for scholars interested in  doing  feminist  theory  work. Early workshop sessions were in the summers, often lasting a week or more. They were organized around topics or themes, such as differences and motherhood.

The women and men who came to those early sessions were searching for a way to reconcile growing critical and feminist sensibilities with the study and teaching of law as we had experienced it as students and beginning professors.  A handful of Women and the Law courses had been created and were being taught at that time, but there were very few women law professors and the word “feminist” was fairly new to law schools.

Continue reading Transcending the Boundaries of Law: Generations of Feminism and Legal Theory – Introduction

Introduction by Martha L.A. Fineman

“Since the late 1960s and with ever increasing momentum, law has come under the influence of economic theory and methodology.  Although considered a specific school of thought within American legal jurisprudence, Law and Economics and the neoclassical economic model on which it is based, have permeated legal analysis in a wide range of areas, considered useful in the development of rules of universal application for law and policy making.

In response to the increasingly accepted notion that economic principles are and should be the primary lens through which legal and policy decisions are made, this volume was conceived in order to bring together essays that are critical of the Law and Economics school of thought, as well as of the neoclassical economic model more generally.  The essays collected in this volume present a variety of legal and nonlegal perspectives and come from a variety of disciplines.  All the authors are generally concerned with the implications of the wholesale incorporation of an economic model into law and policy making.  Although there are many avenues through which one can form a critique of Law and Economics and neoclassical economics other than the critique developed out of an analysis of gender, the essays in this volume primarily bring feminist perspectives to bear on homo economicus, either rejecting economic analysis within the law altogether or, alternatively, using economic analysis in a manner that challenges the gendered power dynamic within the law.

Continue reading Feminism Confronts Homo Economicus

Introduction by Martha Albertson Fineman

“This collection of chapters investigates the ways in which emerging masculinities theories in law could inform feminist legal theory in particular and law in general. Masculinities theories generally explore relationships of subordination between different men and how those relationships rebound in the subordination of women. A central theme of masculinities studies has been the construction of idealized and societally praised forms of masculinity. In addition to devaluing women and ‘non-masculine’ men, such hegemonic modes of masculinity serve to create a general sense of anxiety among men as to whether they can live up to the hyper-gendered standards.

Continue reading Exploring Masculinities : Feminist Legal Theory Reflections – Introduction

Introduction by Martha Albertson Fineman

“This anthology focuses on the vigorous and sometimes contentious debates between and among feminist and queer legal theorists, bringing into direct dialogue many of the key players in this ongoing set of “uncomfortable conversations.” Many  of the chapters speak directly to one another, debating not only important issues such as intimacy, privacy, sex harassment, and political strategy, but also the very conceptualization of feminism and queer theory. Cumulatively, the chapters pursue the shifting complexities and difficult questions feminist and queer legal theories consider as well as produce. This anthology also maps the different approaches to the concepts of sex and gender that have been articulated over the past decades by feminist and queer theorists. In particular, it explores evolving and contested assertions about the centrality of a positive theory of sexuality to the formulation of critical perspectives on legal, social, political, and cultural institutions.

Continue reading Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations – Introduction

Introduction by Martha Albertson Fineman

“This book is the product of an increased interest in feminist scholarship as it relates to legal issues. Law is an area relatively untouched by the post-modern currents that have washed through other disciplines, but now appears to be caught within tides of critical methodologies and conclusions that threaten its very roots. This collection of papers was selected from a larger group presented over a four year period at sessions of the Feminism and Legal Theory Conference at the University of Wisconsin. They reveal that feminist legal theory represents both a sub­ject and a methodology that are still in the process of being born. There are no “right” paths, clearly defined. This scholarship, however, can be described as sharing the objective of raising questions about women’s relationships to law and legal institutions. Continue reading At the Boundaries of Law: Feminism and Legal Theory

by Martha Albertson Fineman from “Vulnerability, the Responsive State, and the Role of Religion” by Martha Albertson Fineman and Silas W. Allard

“Recently, while reading an article titled “The Decline of Empathy and the Appeal of Right-Wing Politics,” I was struck by the relevance of the lessons gleaned from an experiment with mothers and infants, to figuring out how to foster a society that valued and practiced policies of social justice. In the experiment, mother and infant interactions were analyzed in two contrasting situations. Continue reading The “Still Face” of a Compassionately-Challenged Society

by S.N. Nyeck

Procuring Along the Equality Grain

“To address the annoyances and questions that gender raises and the policy trajectories that this category brings to global public procurement reform, one needs not confine innovation to the margins. This is to say that conversing with the idea of equality in a more substantive way might provide us with better tools for discussing gender in public procurement without limiting the frame to discrimination only or to the traditional equal opportunity analysis. This is an invitation to consider alternative values and policy venues in probing the size and texture of the equality grain as perhaps of better nutritional value than the mere bringing in of discrimination sheaves in the procurement field. Assuming such a consideration is agreed upon, it becomes useful to ask, what is the subject of “gender” that brings a substantive (not just formal, procedural, or opportune) vision to equality in public procurement? This subject is, it is contended, the “vulnerable subject.” Moreover, considerations for a substantive approach to gender equality must argue for valuing states’ self-constitutive (Korsgaard 2009) functions and actions in an age of complex global governance arrangements. Hence the vision of a “vulnerable subject” as the center agent of a reformed vision of gender equality in public procurement is necessarily intertwined with concerns about the future of democratic (Freeman and Minow 2009), responsive and responsible governance (Poh and Stumpf 2005; Chooner and Greenspahn 2008). It therefore follows that “the vision of the state that would emerge in such an engagement would be both more responsive and responsible” (Fineman 2009, 2 My emphasis).

Continue reading Gender Equality in Public Procurement

by Martha Albertson Fineman

Understanding Vulnerability Theory

Vulnerability theory challenges the dominant conception of the universal legal subject as an autonomous, independent and fully-functioning adult. Rather than building our systems of law and justice upon this static figment of the liberal imagination, vulnerability theory argues for a socially and materially dynamic vulnerable legal subject, based on a richer account of how actual peoples’ lives are shaped by an inherent and constant state of vulnerability across the life-course. Human beings are embodied creatures who are inexorably embedded in social relationships and institutions. There should be political and legal implications for the fact that we live within a fragile materiality that renders us constantly susceptible to change, both positive and negative, in our bodily and our social circumstances. Sometimes bodily vulnerability is realized in the form of dependency on others for care, cooperation, or assistance.  Sometimes it is realized in our dependency on social arrangements, such as the family or the market and economy.  But, whether realized or latent, vulnerability is universal and constant – an essential and inexorable aspect of the human condition.

Continue reading What Vulnerability Theory Is and Is Not