Martha Albertson Fineman
“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