Vulnerability Theory in Local Practice

by Nicole Phillis

Legal theorists are often criticized for developing legal philosophies without a means for practical application.  But in recent months, I had the opportunity to implement Professor Fineman’s vulnerability theory firsthand in local government.  Let me explain.

Since 2014, I have served as an elected official in Santa Monica as a Commissioner on the Santa Monica Rent Control Board.  Through the course of the pandemic, a significant amount of City employees were laid off due to loss of revenue to our City.  Further, the righteous protests for Black Lives Matter in the aftermath of the murders of George Floyd, Breonna Taylor, and Eric Garner forced us to confront the militarization of law enforcement, and the systemic failures of government to protect Black people from systemic oppression, abuse, and persecution.  These events impelled us to re-examine what we believe is the purpose of local government and what we want our new reimagined government to look like.

To that, my answer was deeply rooted in Martha Fineman’s groundbreaking vulnerability theory.  Because “vulnerability is inherent to the human condition, … governments therefore have a responsibility to respond affirmatively to that vulnerability by ensuring that all people have equal access to the societal institutions that distribute resources.”[1]

So what would praxis of vulnerability theory look like in local government?  To start, it re-orients the purpose of government around affirmatively meeting human need where it presently exists, as opposed to a reactive, restricted government intended to maximize individual liberty, often at great social cost.

The “Housing First” model of homelessness intervention is but one example of a vulnerability-oriented approach that may be implemented on a local level.  According to the National Alliance to End Homelessness, “Housing First” is a model of solving homelessness that “prioritizes providing permanent housing to people experiencing homelessness” without first “require[ing] people experiencing homelessness to address the all of their problems including behavioral health problems, or to graduate through a series of services programs before they can access housing.”[2]  By meeting unhoused neighbors where they are, without any strings or preconditions attached, the “Housing First” model prioritizes addressing the most core vulnerability of our unhoused neighbors—a lack of access to reliable, safe and clean shelter—and contemplates that further supportive services for psychological trauma, addiction, and other basic health needs once an individual has had that most urgent need met.

Similarly, vulnerability theory provides a touchstone for re-envisioning community policing.  By shifting away from a militarized, punitive model and toward a peacekeeping oriented model, vulnerability theory instructs that community policing must be aligned with addressing core needs of a community, rather than an enforcement-centric model, which has left obvious gaps in service and protection to large groups of people, particularly for Black and Brown folks.

As we move forward in the slow path out of the pandemic, we are presented with a unique opportunity to pause and ask what we would like our future selves to look like.  Vulnerability theory provides many helpful and important perspectives on what the future could and should look like.  It is my hope that more local governments will re-orient themselves around a responsiveness-centric model, like that contemplated under Professor Fineman’s vulnerability theory because there is a distinct intimacy between local elected officials and their constituents that is particularly conducive to implementing a vulnerability-centric approach.

[1] Nina A. Kohn, Vulnerability Theory and the Role of Government (2014) 26 Yale J.L. & Feminism 1.

[2] National Alliance to End Homelessness (Apr. 20, 2016) “Housing First” available at https://endhomelessness.org/resource/housing-first/.

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