Beyond Identities: The Limits of an Antidiscrimination Approach to Equality (2012)

by Martha L.A. Fineman

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The vulnerability and the human condition thesis presents a foundation for the argument that there is a state responsibility to monitor the promises of equality of access and opportunity that are fundamental to American society’s construction of itself as the “land of opportunity.” My argument is that to attain broad general opportunity and access in today’s world, the state must be responsive to individual, social, and institutional circumstances so that equality is anchored in the realities of the human condition and not some abstract and unachievable “ideal.” In particular, it is surely true that the reality of our universal fragility plays some role in the construction of societal institutions.
Just as surely, how those institutions respond to our collective and individual vulnerability should form part of the basis upon which they are judged by and incorporated into society. To see how these insights are relevant to political and ethical assessments of what constitutes a “just” state, I seek to reconsider the components of the basic social compact on three levels: Who is cast as the universal legal subject? How are the nature and function of societal institutions understood? What are ascribed to be the responsibilities of the state or collective to individuals and institutions?

If the primary objective is the eradication of inequality and discrimination, any measures designed to achieve this objective will be rendered less effective by the limited scope of our nondiscrimination inquiry. The state should have a rigorous duty to ensure for everyone both equal protection of the law and equal opportunity to enjoy the benefits of society. If monitoring is restricted to rooting out discrimination against or stereotyping of personal characteristics, however, the state will only ever be able to partially achieve that objective. To reflect a rigorous commitment to equality it will be necessary to move beyond identities and beyond our current understanding of discrimination to a more universal perspective.

A. The Universal Legal Subject
In recent work, I developed the concepts of “vulnerability” and “resilience” to challenge the one-dimensional definition of a liberal subject as it is used to render natural and inevitable relationships of dependency and need as pathological and deviant. The idea of the “vulnerable subject” as the appropriate legal and political subject arose from asking two fundamental questions: (1) What should be the political and legal implications of the fact that we are embodied beings, which means we are born, live, and die within a fragile materiality that renders all of us constantly susceptible to both internal and external forces beyond our control? (2) What accounts for the lack of consideration given by our political, economic, and legal systems to the messy but inescapable dependency of human nature, marked as it is by “bodily needs, desires, and yearnings?”

Unlike the liberal subject, the concept of the vulnerable subject is built around the idea of “life-course,” reflecting a range of developmental and social stages through which individuals are likely to pass in the course of a normal lifespan. The liberal subject at best captures only one stage – the stage least likely to reflect the vulnerability of the human condition. By contrast, the vulnerable subject embodies the recognition that the individual will encounter a myriad of opportunities, frustrations, challenges, and experiences during his or her life, necessitating a wide range of expertise and capabilities. We will be perceived by ourselves and others as weak and in need, as well as empowered and strong, at different developmental stages in our lives and as we pass through various experiences and environments. Reliance on individual agency in such encounters can only go so far and is not always available, adequate, or even desirable.

Throughout our lives we are subject to external and internal events over which we have little control. These can be negative, such as disease pandemics, environmental catastrophes, terrorism, crime, crumbling infrastructure, failing institutions, recessions, corruption, and physical decline. They can also be positive, such as the feelings that seem to arise spontaneously in encounters with nature or art, or feelings of love, friendship, and compassion. We are situated beings who live with the ever-present possibility of changing circumstances beyond our control, which may alter our needs and desires both individually and in our collective lives. We are also accumulative beings and inevitably individuals will possess different qualities and quantities of resources, both over the course of their lifetimes and as measured at the time of crisis or opportunity. This difference in accumulation is important. It is often attributed solely to differences in individual efforts and talents in American political culture. But differences must also be understood as structurally produced.

Considering the structural components of universal vulnerability raises a paradox: while human vulnerability is initially conceptualized as universal and constant, it also must be recognized that the experience of vulnerability is particular, varied, and unique on the individual level. This recognition of differences within an overarching construct of universal vulnerability also allows us to see two roles for law and policy.”

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Fineman, Martha Albertson, Beyond Identities: The Limits of an Antidiscrimination Approach to Equality (December 1, 2012). Boston University Law Review, Vol. 92, No. 6, 2012, Available at SSRN:

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