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.

While several prevailing American myths currently impede the establishment of a state more responsive to the vulnerable subject, the challenge is to think beyond current ideological constraints and consider the possibility of an active state in non-authoritarian terms. This theoretical task of reconceptualizing the role of the state requires that we imagine responsive structures whereby state involvement actually empowers a vulnerable subject by addressing existing inequalities of circumstances that result from undue privilege or institutional advantage. State mechanisms that ensured a more equitable access to institutional assets by adjusting unjust distribution of privilege and opportunity across society would also contribute to a more robust democracy and greater public participation.

It is important to conclude with the observation that a vulnerability approach does not mean that different treatment, even the conferral of privilege or advantage, is never warranted. It does mean that if the state confers or tolerates institutional conferral of privilege or advantage, there is an affirmative obligation on the state and its institutions to offer explanations for the disparate circumstances. Privileging should be both transparent and justified. This type of process would certainly change political discourse and the terms under which legislators and legislation are judged. Vulnerability analysis is an attempt to articulate a more self-conscious and aware egalitarian political culture; one that more robustly adheres to the all-American promise of equality of opportunity and equal access to the American dream. It is those aspirations for substantive equality for the vulnerable subject that should form the ultimate ideals against which the state and its societal institutions and their actions are judged.”

Fineman, Martha Albertson, The Vulnerable Subject and the Responsive State. Emory Law Journal, Vol. 60; Emory Public Law Research Paper No. 10-130. Available at SSRN:


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