Vulnerability and the Human Condition

Most lawyers will remember learning about the “penumbra” of the Constitution – the concept that the amendments imply an “attitude of will” that allows for interpretation beyond the plain meaning. The U.S. Constitution was written by and for an exclusive group of individuals who could not predict the needs of the diverse and growing community that makes up America today. Penumbral thinking has allowed the U.S. Constitution to stay relevant as a “living document,” the interpretation of which may change to serve the needs of the nation as it inevitably continues to develop and change over time. Since 1789, the nation’s laws and constitutional protections have thankfully progressed – always lagging just behind the needs of a quintessentially different time and population.

In Griswold v. Connecticut (1965), Catherine G. Roraback, attorney for Griswold, successfully argued that the penumbra(s) created by the First, Third, Fourth, and Ninth Amendments establish a right to privacy. Roraback’s argument for this implied right to privacy guaranteed legal access to birth control, completely changing the lives of women in the United States through the possibility of planned pregnancy.  Griswold laid the groundwork for cases like Eisenstadt v. Baird, which gave unmarried couples the right to obtain contraceptives, and the ever-controversial Roe v. Wade (1973), in which the court held that the state could only interfere with a woman’s right to choose whether to give birth after the fetus was “viable” and if an abortion was not necessary for the woman’s life or health. Recently overturned in 2022, Roe v. Wade protected this right for almost 50 years.

Although Griswold v. Connecticut may have been Roraback’s most famous case, her impact as a public interest attorney was not limited to reproductive rights. Roraback successfully defended Ericka Huggins, Black Panther Party leader and director of the famous Oakland Community School, in the New Haven Black Panther Trials. At the time of the trial, she was the only female criminal defense lawyer practicing in New Haven. Throughout her career, Roraback was committed to justice. She continued to defend those impacted by police coercion, corruption in the legal system, and those impacted during McCarthyism (despite being allegedly targeted by COINTELPRO herself).

Her service went beyond her role as a lawyer, taking the form of leadership roles in organizations including the American Civil Liberties Union, National Lawyers Guild, and Planned Parenthood throughout her life. Organizations like this are ever more important for sustained community organization to protect each other. In this particular moment of American history, when Roe v. Wade has been overturned and legislation and rhetoric increasingly endanger and destroy hard-won rights to dignity, we look to victories of the past to give us inspiration and hope.

Catherine Roraback donated her papers to Martha Albertson Fineman, who archived them as part of the Feminism and Legal Theory Project at Cornell University, where Fineman held the first legal endowed chair of feminist jurisprudence at a law school in the United States. Professor Fineman brought the collection with her when she came to Emory Law in 2014. This Women’s History Month, we invite you to explore Catherine G. Roraback’s legacy of activism, legal brilliance, and unwavering dedication to justice in the Catherine G. Roraback Papers at the Feminism and Legal Theory Project Archive at Emory Law.

Please note that exact times will be available later. This schedule is subject to change.

Workshop Schedule: March 31 – April 1, 2023

Friday, March 31

Introduction: Martha Albertson Fineman and Michael J. Perry

Panel 1: Vulnerability Theory

• After Rights, Marc Lane Roark (Louisiana Outside Counsel of Health and Ethics Endowed Professor of Law, Southern University Law Center; Senior Fellow, Native American Law and Policy Institute; Research Associate Professor, University of Pretoria)
• To Each Their Own: Understanding the Role of Human Rights and Vulnerability Theory in Defining State Responsibility, Tara Van Ho (Senior Lecturer, Co-Director of the Essex Business and Human Rights Project, Co-President of the Global Business and Human Rights Scholars Association, School of Law and Human Rights Centre, Essex Law School)

Panel 2: Religious and Spiritual Approaches

• Comparative Conscientious: Negotiating Rights and Vulnerability with Confucianism’s Concept of Liangxin (良心), Bohao Zhao
• A Larger We: Activism, Identity, Spirituality and Social Change in Pluralistic Societies, Dustin Sharp (Kroc School of Peace Studies, University of San Diego)
• Social Justice and the Vulnerable Subject, Sean Coyle (Professor of Jurisprudence, Birmingham Law School)

Saturday, April 1

Panel 3: International Perspectives

• Rights Could Be Enough: Understanding Social Rights from a Vulnerability and Latin-American Perspective, Fabrizia Serafim
• A Vulnerability Analysis of the Role of Human Rights in the Formation of Kenya’s Second Republic, Atieno Mboya Samandari (Professor of Practice, Emory University School of Law)
• Social Property, Vulnerability, and Democratic State, Xiaoqian Hu (Associate Professor of Law, University of Arizona)

Panel 4: Policy and Application

• The constraints on Human rights and Vulnerability Theory as activators of State action to facilitate social justice: the case for implementing a universal Vulnerability Mitigating Response to determine the scope and content of the obligation of the responsive State, Jennifer Whelan (Senior Lecturer, Director of Clinical Legal Education, Western Sydney University School of Law)
• The Role of State in Lessening Vulnerability and Advancing Social Justice under International Human Rights Law, Aikaterini Koula (Lecturer in Law, Manchester Law School)

Workshop convened by Martha Albertson Fineman, Michael J. Perry, and Atieno Mboya Samandari.

March 31, 2023 – April 1, 2023

This workshop will consider (comparing and contrasting) Vulnerability Theory and Human Rights as ways of thinking about state responsibility.

Human rights and human vulnerability theory are both concerned with the achievement of social justice and the role of the State in this endeavor. Their approaches to the State, however, are markedly different. Human rights in today’s neoliberal climate advocates for a “restrained State” while human vulnerability theory calls for a “responsive State”. We are pleased to announce a workshop on human rights and human vulnerability, bringing in dialogue the work of Professor Michael Perry on human rights and Professor Martha Albertson Fineman on human vulnerability.

Continue reading Call for Papers: A Workshop On Constructing an Ethical or Moral Approach to State Responsibility

March 24, 2023 at Emory University School of Law

Has human interaction with social robots and other forms of artificial intelligence evolved to the point where such interaction could constitute an “intimate relationship?” If so, how should these interactions be regarded and regulated?  On the other hand, how might this type of interaction ultimately affect the form, nature, and need for intimacy between humans? This workshop will explore how vulnerability theory can be applied to these and other questions arising from digital intimacy, considering how state and social responsibility for the technological future should be defined and incorporated into an ethical framework for the development and use of AI.

Current scholarship on ethical AI often engages with notions of privacy and trust through a consumer protection framework. Considering users of AI systems as mere “consumers” obscures the many social and environmental constraints on consumer choice, including the deep emotional, and sometimes even romantic, attachments that humans may form with AI. Voice assistants such as Siri and Alexa, chatbots, and therapeutic and home robots have increasingly become our companions, caregivers, and confidants. Instead, centering possible emotional connections allows us to view the sharing of information with AI as a potentially intimate or trusting act, rather than a mere conferral of personal data. Manipulation or coercion on the part of a commercialized AI system could be characterized as a form of “intimate deception” rather than merely consumer fraud. This conceptual shift broadens the traditional consideration of harm in human-AI interaction to include the emotional and psychological harm caused by the betrayal of intimate trust.

Continue reading Call for Papers – A Workshop on Vulnerability and Digital Intimacy

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.