A Legal (and Otherwise) Realist Response to “Sex As Contract”

by Martha A. Fineman

image via Pixabay

“Perhaps the law and economics analysis represented in this article is attractive precisely because it offers pat, formulaic answers to the chaos generated by the critical questions increasingly raised about American politics and society by vocal and diverse groups, such as women, who have historically been excluded from institutions of power.  This attraction (and the ultimate utility of the simplistic, formalistic answers) is enhanced by the fact that law and economics is cast as merely a  “methodology,” allowing it to aloofly masquerade as something neutral and susceptible to universal application.

Any claim to neutrality and universality should give pause to any modern student of rhetoric and cultural metaphor. The claim to neutral method, the asserted rationality of the approach, obscures the function  of law and economics which is maintenance or reinforcement of the status quo in regard to existing distributions of power in society. The “economics” informing law and economics is typically inherently conservative.  It presents an ideologically confined and, in this sense, coherent set of principles proposed in pursuit of the ultimate goals such as “choice” and “rationalization.” Law is brought into service of the conservative economic ideology as a way to coercively secure the [re]institutionalization of historically repressive social practices such as patriarchical control over women’s reproductive lives. Continue reading A Legal (and Otherwise) Realist Response to “Sex As Contract”

Feminism, Masculinities, and Multiple Identities

by Martha Albertson Fineman

Image via Pixabay

“Using identities inevitably brings the inquiry back to a search for specific targeted discrimination based on those identities. Those so identified are splintered off from the universal legal subject (the liberal legal subject) and, as a now differentiated part of the whole, measured against the universal ideal to see if differences in treatment, status, or position are impermissible. This comparative process is inevitable in a discrimination analysis, but if we want the inquiry to go to institutional and structural inequalities that are not (or are no longer) based on intentional impermissible discrimination, making multiple identities central to the analysis will be difficult to do in practice and may actually further obscure problems not captured by or transcending those identities. Dowd concedes that it is difficult to both hold multiplicities in mind (and not privilege one over others) and make the analysis relevant to the objective of suggesting institutional transformation through law. Interesting from my perspective is the fact that her book contains few concrete suggestions for engagement with law and law reform. This is not a criticism of the book, which does offer, even if in abstract terms, suggestions and admonitions directed to feminist legal scholars: “Adding men should not mean displacing women, and it requires a willingness to consider the position of the dominant gender group while demanding that the dominant group acknowledge and commit to the achievement of liberation and justice for women while raising men’s and boys’ issues.”34

And in regard to sexual abuse:

[T]he focus on child sexual abuse has unintentionally meant that other forms of abuse have been given less attention. The negative consequences of that focus are disproportionate for boys. In addition, this focus has avoided the reality that women constitute the majority of offenders. The dynamic of that pattern of maltreatment and abuse is a critical part of understanding motherhood that must be addressed.35

My concern with such insights is not that either is inappropriate, but that they seem more directed at giving guidance for the reform of feminist legal scholarship than focused on how legal institutions and practice might be approached and reformed.

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Vulnerability, the Responsive State, and the Role of Religion

by Martha Albertson Fineman and Silas W. Allard

Image by msandersmusic from Pixabay

“Returning to the “still face paradigm,” we might ask: what lessons are inevitably learned by those currently struggling within a society that appears unresponsive to human need and suffering? How should we respond when the state is unresponsive? Contemporary Western societies are typically organized around values of individualism and autonomy and reflect a faith in free market “principles” to provide for the collective welfare.7 In its extreme form (as in the United States of America), the state is seen as mostly unnecessary to individual and institutional prosperity and urged to get out of the way. In this type of neoliberal market-oriented society, belief in privatization and efficiency have not only prevailed, but triumphed, over more socially attentive and responsive models of society. What happens to social cohesion and trust when the individual is held to expectations imposed by a regime of “personal responsibility,” tempered slightly by some recognition of “individual rights” against state excesses? It is a society built around competition, not compassion.

The primary concern of this chapter is the damage that occurs to the social fabric of a society when the failure to thrive is blamed on the individual, and the social institutions and relationships upon which we are all dependent have been drained of the resources they need to provide the minimum component of the constitutionally mandated equality of opportunity and access. It laments the incoherence in the related and contingent social institutions that populate the complex global and market-oriented societies that have been created in the past several decades. These are societies where the means for individual survival, as well as the possibilities for flourishing, are cavalierly assumed to be within an individual’s grasp, ideally not requiring any sustained governmental responses.

Rather than accepting this designation of individual responsibility, we should be asking ourselves, and those politicians and policy makers who shape our institutions, a bevy of hard questions; we should be demanding answers that reflect at least some recognition of social responsibility. To start this inquiry, let us ask those politicians obsessed with austerity to imagine what lessons children learn when the books and other materials they are provided in public schools are outdated and incomplete and the equipment required for even a modestly adequate technological education is both worn and sparse? What do these children understand as necessary for a fulfilling life when music and art are missing from the curriculum and physical education is deemed a luxury? How do children understand the value society gives them when the buildings in which they are “educated” are desperately in need of repairs and their local community refuses to generate the resources necessary to address the problem? How do these children understand their society’s sense of justice and fairness when, at the same time they are experiencing deprivation, they see a multimillion dollar sports complex or some other symbol of societal indulgence for the well-off being constructed with the assistance of public resources?

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The Vulnerable Subject and the Responsive State

by Martha Albertson Fineman

“Autonomy is not an inherent human characteristic, but must be cultivated by a society that pays attention to the needs of its members, the operation of its institutions, and the implications of human fragility and vulnerability. A commitment to equality should not be seen as diminishing the possibilities for autonomy. In fact if we desire a society in which a great number of individuals can exercise autonomy, not only those who have been historically privileged, society must be built on a foundation of equality. Nor should autonomy be confused with isolation, or separation from society. Part of the reciprocity inherent in being a member of society is that everyone has a role to play in ensuring the greater good. Lack of involvement or rejection of responsibility for the needs of others in that society should not be an option. Because we are part of and benefit from society, we must be attentive to responsibilities that extend beyond satisfying one’s own personal and family needs. Autonomy understood through a lens of equality would carry social and reciprocal duties to others; it would not be confused with selfishness, self-absorption and egocentric attention to only one’s own circumstances.

It is also true that state responsibility to the individual in regard to autonomy does not require that there be unfettered or endless choices for those few members who have reaped the benefits of society and its institutions. It should not be the case that the only limitation to accumulation of opportunities. and rewards is an individual’s capacities and resources. The society should be able to define what normative and legal limitations will apply to both methods and modes of individual accumulation. On the other hand, if autonomy is understood consistent with prioritizing equality, that would seem to require that society also provide some threshold of opportunity for everyone. The task would be for the state to exercise its authority to ensure that access and opportunities existed that would provide some minimal, viable number of worthwhile options from which an individual can choose, thus realizing their autonomy.

Of course, “equality” and “autonomy” are abstractions.   Their amorphous, overarching, and imprecise natures mean that both terms can be used by those holding disparate positions on governmental responsibility. My point is that neither equality nor autonomy can be understood in isolation from each other and it seems that one will be emphasized or privileged in society at the expense of the other. So our equality, which is formal and focused on sameness of treatment, brackets off vulnerability and dependency in order to be able to assume away the resulting disadvantages and burdens they place on individuals’ ability to generate options and, thereby, their ability to exercise autonomy. Achieving some viable mechanisms of equal opportunity and access would demand more from the state in terms of rules and regulations restricting the unfettered autonomy of some, as well as a more just reallocation of some existing benefits and burdens within society.”


Conclusions—The Need for a More Responsive State

“It must be made clear that the choice is not one between an active state on one hand versus an inactive state on the other. Rather, the choice is whether or not the state is going to act to fulfill a well-defined responsibility to implement a comprehensive and just equality regime that ensures access and opportunity for all consistent with a realistic conception of the human subject. Our present insistence that the state need be constrained underestimates or even ignores the many ways in which the state—through law—shapes institutions from their inception to their dissolution and the ways in which those institutions produce and replicate inequalities. We must show how these institutions operate to produce systems of privilege. To this end, it is imperative to recognize that no one is an autonomous, independent individual.

We all benefit from society and its institutions, but some are relatively advantaged and privileged in their relationships, while others are disadvantaged. Under a vulnerability analysis the inquiry would be into the organization, operation, and outcomes of the institutions and structures through which societal resources are channeled. The state is constituted for the general and ―common benefit – not for a select few.  Under a vulnerability analysis the state has an obligation not to tolerate a system that unduly privileges any group of citizens over others. It has a responsibility to structure conditions in which individuals can aspire to meaningfully realize their individual capabilities as fully as possible.

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