by Martha Albertson Fineman
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.