by Martha Albertson Fineman
This chapter considers the limited ways in which “injury” or harm is understood in American political and legal culture. In particular, I am concerned with the inability of contemporary constitutional or political theory to interpret the failure of collective or state action as constituting harm worthy of recognition and compelling remedial action. Here, I am not focused on laws redressing harm to private individuals and entities caused by other private individuals and entities. These legal harms are defined in areas of private law, such as tort and contract. Nor am I focused on those legal harms addressed by areas of regulatory law, such as criminal or administrative law. Rather, I am interested in the norms and values that inform the principles governing the exercise of action and restraint on the part of the state when it acts as sovereign and in relationship to individuals as political or legal subjects. As reflected in these foundational documents and constitutional jurisprudence of the United States, these principles express a theory or philosophy of what constitutes legitimate state authority.
The idea that constitutional injury or harm can be caused by state inaction is not well developed in American political and legal culture. The norms and values informing our ideas of appropriate actions on the part of the state, as well as defining the corresponding entitlements of political or legal subjects, are firmly anchored in the principle of nonintervention or inaction. The specter of state or public interference with individual privacy or liberty interests haunts our constitutional order and shapes what we perceive as constituting injury by the state. Restraints on state action are viewed as arising from the terms of the social contract and are often referred to as “negative rights.” By contrast, the term “positive rights” is used to refer to affirmative obligations placed on the state (and/or others) to provide rights-holders with needed goods or services.
American constitutional jurisprudence, as it has developed within the framework of negative rights, elevates the ideal of individual liberty over any robust sense of the necessity for collective or substantive equality. The liberty limitations placed on governmental action resonate in the very documents comprising the terms of the American social contract. By contrast, positive rights or entitlements are generally considered legitimately based only on current and specific consensual arrangements, such as those found in public legislation or private contract.
The denial of positive rights means that the state has no constitutional responsibility to guarantee access to basic goods and services. As a result, the Constitution, as it is interpreted, thus tolerates (and even condones) state disregard for or abandonment and neglect of basic human needs. Profound inequalities in circumstances, status, and well-being are accepted – even justified – by reference to individual responsibility (see, e.g., Brooks 2015).4 Proposed remedial and altruistic responses are deflected with warnings about the addictive dependency asserted to be inherent even in the highly stigmatized system of welfare currently in place (see Eberstadt 2015).
State neglect of the needs of those individuals living in poverty or suffering under social, economic, and material disadvantage is not seen as requiring legal or political remedy. Quite the contrary: state inaction is typically viewed as the appropriate manifestation of state restraint in the face of individual liberty or autonomy rights that condemn any move toward the “redistribution” of private wealth or property. “Private” structures, such as the family, market, charity, or the workplace, are designated as the prime mediating institutions to provide for the needs of individuals.6 Arguably, the state may be seen as having some responsibility in regard to the conduct and operation of those institutions, but at best the state is seen as an incremental and contested residual actor when they fail. This understanding of state inaction as not constituting injury or harm is both validated and compelled by the ways in which, over the course of American political history, the political subject and social contract have been understood as anchored in liberty and autonomy.
This chapter considers how this hierarchy of liberty over equality developed and questions whether it should continue to prevail. It asks when state inaction in the face of some forms and magnitudes of inequality should be considered an injury in and of itself. When should the disregard of impoverishment, disenfranchisement, alienation, and exploitation of substantial numbers of individuals within and through the systems of law and politics rise to the level of “gross negligence” on the part of the state? And when should such neglect be understood as the “social-contractual injury” of the state effectively institutionalizing subordination and inequality? To begin to answer these questions, the next section considers the origins of political and legal subjectivity and offers the “vulnerable subject” as an alternative to the liberal legal subject that has impaired our political and legal imagination for over two centuries.
The Political (and Legal) Subject
In western political traditions, the idea of political (and legal) subjectivity places the individual in relationship to the state and its institutions. The terms of the social contract, as they are articulated and understood, define the quality and nature of that relationship. Specific conceptualizations of the political subject and terms of the social contract will affect the status of everyone in society, although not everyone may be considered a fully realized and legally capable subject. For example, at the formation of American democracy (and within its foundational documents), fully realized political subjectivity was limited to white, male, property-owning or tax-paying individuals of a certain age and religion, who were also “free.” Over the course of the nineteenth and twentieth centuries, some of these qualifiers were removed and full political subjectivity was recognized for members of previously excluded groups. However, the expansion of the population did not automatically transform the perceived nature or assumed capabilities of the political subject. Indeed, the inclusion of previously excluded actors was based on the assertion that there were no relevant differences between these parties and the original political subject. The mode of inclusion was assimilation, underscored by the application of a principle of formal equality.
The implications of this exclusion and eventual assimilation of women and significant numbers of nonconforming men were significant. While the contemporary race-and gender-neutral political subject may look different from the original, many aspects of the constitutional relationship between the political subject and the state remain close to those developed hundreds of years ago. Our long-standing universal legal subject is envisioned as an autonomous, independent being along the lines of Lockean lore.
This liberal legal subject is a competent social actor capable of playing multiple and concurrent adult (formerly all-male) roles: the social, and legally defined, roles of the employee, the employer, the spouse, the parent, the consumer, the manufacturer, the citizen, the taxpayer, and so on (Fineman 2008). This liberal subject informs our economic, legal, and political principles (see Deneen 2012: 25). He is indispensable to the prevailing ideologies of autonomy, self-sufficiency, and personal responsibility (see ibid.: 28). He hides the ways in which social roles also reflect allocations of social power and prestige and define institutional relationships of inequality, such as employer/employee, teacher/student, or parent/child (see Fineman 2014). His society is one in which competent, self-interested individuals possess the capacity to manipulate and manage their independently acquired and overlapping resources and may exercise a range of options in pursuit of their individually defined good lives (see Offer 2012). Rather than being seen as dependent on others and in need of state provision or assistance, the liberal subject demands only the autonomy that will enable him to provide for himself and his family as he sees fit (see Eichner 2005). The liberal subject’s demand for liberty may be distilled into the freedom to make choices, as exemplified in the right to contract (see Titlestad 2010). It is through contract that his relationship to both the state and its institutions are to be ordered. Significantly, this perception of the essence of the liberal subject also defines the terms of the social contract and has effectively operated as a significant restraint on the state, which above all must not interfere with individual liberty (ibid.).
When considering the continued viability and justice of this version of the social contract, it is relevant that the founding fathers were not merely white, male, and propertied, but shared a remarkably privileged phenomenological perspective as compared with the situations of those not possessing their specific characteristics and attributes. As a result, the founding fathers fashioned a political subject deemed to naturally possess idealized qualities and characteristics as derived from the aspirations, experiences, and perceived capabilities of the members of their limited and unrepresentative group. They failed to comprehend that the legitimacy of the social contract might be undermined because the experiences and perceptions of those previously excluded were in some significant ways different from that political subject, and perhaps incompatible with the norms and values underlying the original organization of state and individual responsibilities.
To a large extent, the experiences of those excluded were not considered public or appropriate for “political” consideration. Those experiences were rooted in what were deemed to be “private” arrangements: politically invisible and publicly assumed institutions, particularly the family with its defined hierarchical relationships of husband or wife, parent/child, and master/servant. “Natural” entitlements, such as rights in private property (even in other human beings), allowed the illusion of independence even as they offered a range of options and access to political and economic power that was denied to many others. Like all human beings, the founding fathers were inevitably entwined with and dependent upon social, political, familial, and economic structures and relationships for care, nurture, and support over the course of their lives. In fact, the very social arrangements they neglected to recognize as implicating the political placed them in a privileged position by subordinating others. Even if they recognized the inequality of these social arrangements, they could afford to ignore them within their constructed realms of public versus private spheres. Thus insulated, the privileged few did not need to consider the implications of inevitable human vulnerability and dependence as they crafted their social contract. Their perspective on what its terms should be was shaped by revolution, and they sought primarily to codify the results of a struggle with an exploitative monarch, shedding the status of “subject” and becoming “citizens.”
Based as it was on a limited set of both experiences and objectives, it is not surprising that the political subject reflected in the original American constitutional order incorporated only some of the host of possible variations in human characteristics, experiences, and capabilities. The political subject projected in the constitutional era was a fully functioning, independent, and self-sufficient adult, fully capable of taking care of his own needs and the needs of those subordinated and dependent upon him. However, from the perspective of the twenty-first century’s supposed beneficiaries of the social contract, this political construct is theoretically inadequate. We inhabit a world of dynamic complexity, uncertainty, and technology, unimagined by the founding fathers. Their social contract is incapable of fully (or fairly) informing the development of political and legal norms to address many, if not most, of the situations and circumstances that occur over the life-course of most actual individuals living today.22 (Boyd 2017), The inaction compelled by their vision of a restrained state should be understood as constituting gross neglect in modern society, and the social contract should be amended so that the contemporary political subject is more inclusive of and responsive to the universal human condition.”
Fineman, Martha Albertson, Injury in the Unresponsive State: Writing the Vulnerable Subject into Neo-Liberal Legal Culture (March 8, 2018). Emory Legal Studies Research Paper Forthcoming In Injury and Injustice: The Cultural Politics of Harm and Redress, Bloom, Engel, and McCann Eds., Cambridge Studies in Law and Society 2018. Available at SSRN: https://ssrn.com/abstract=3175436