Student Reflections on Dr. Mboya’s course

What follows is a series of anonymous class reflections from Dr. Atieno Mboya Samandari’s class on Law, Sustainability, and Development.

Reflection 1

Equality, as a concept, is a wonderful thing. I have always been moved by John Rawls “Original Position” thought experiment where we design our society/institutions from behind a “veil of ignorance” that prevents us from knowing which race, gender, or economic status we would be assigned in our society. From that original position, people would be incentivized to create a more just and fair system. In “The Vulnerable Subject”, Martha Fineman highlights how our current conception of equality fails to account for discrimination/disparities that are less-easily demarcated.

Fineman mentions that the American legal system has focused on abrupt instances of inequality such as racism and gender discrimination. This equality as “sameness of treatment” approach is not without its merits, but it also has a downside. Our hyper focus on the individual leads us to overlook the systemic causes of inequality that are ever-present and operational. I thought her perspective on group identity politics was very interesting. In America, it seems like we only give the stage to one marginalized group at a time. I am not sure if it is due to lack of attentional bandwidth at a national level or for some other reason, but it has the consequence of creating a zero-sum situation where focusing on one marginalized group takes the attention away from other marginalized groups and their grievances. While all of this is going on, it distracts us from addressing the systematic causes of inequality that begin with our institutions. To me, it seems like we tell ourselves a story about being a society that values equality, but we don’t adjust our institutions in such a way that scales with that value. I believe we value equality, we just aren’t effective at addressing the causes of it.

Fineman takes a more universal approach to basing equality in the human condition. She sets out her conception of vulnerability and explains we all have different predispositions to vulnerability based on our mix of economic resources and institutional relationships. I really like this approach because it doesn’t create groups that are under or over-inclusive. It compensates for the systematic difficulties posed on race and gender without creating overly broad groups based on those factors alone. It acknowledges that some people from racially marginalized groups (weaker institutional relationships) can still have command over significant economic resources, just as racial majorities can have strong institutional relationships but lack economic resources. Therefore, it tends to focus more on the wellbeing of the individuals involved rather than solely on superficial differences between them.

Lastly, this paper reified the importance of institutional strength in our society. Our tendency to take responsibility away from the public sector and privatize it creates real problems. The schema we currently have claims, and even seems, to be committed to individual equality. Yet, we our making the institutions that legally define and protect our values more and more benign. How can we truly address inequality in our society when we continuously offload important social maintenance into the hands of capitalistically motivated corporations/groups? I think Fineman’s use of vulnerability as a heuristic might a great answer to this.

Reflection 2

In The Vulnerable Subject: Anchoring Equality in the Human Condition author Martha Albertson Fineman argued for a more responsive state in the United States. As we have learned, most countries around the world, including the United States, have states with a reduced role. Some countries like Japan, South Korea, and China have a stronger role for the state. This made me wonder if Fineman would consider modeling the United States after one of these countries to make it a more responsive state. She also argued for a more egalitarian state in the United States. This made me consider whether she would appreciate incorporating more communist ideals or more welfare economics into the United States.

I agree with Fineman that the state is not withering away and that it is the creator of legitimate social organizations. It was disturbing to read about how families are creations of the state, but it also makes sense to me because western law has developed in a way that focuses on wiping away community and family, so the individual has a relationship with the state. This means that the state has great control over the family structure. When she described how the government is involved in contracts even though people try to isolate transactions it further solidified in my mind how the government is so entrenched in people’s everyday lives.

Since the state is already so involved in individuals’ lives, I do not think a more responsive state would be any more corrupt. I agree that the state is in a better position to implement public values and it must do so because that is why people agreed to have governments in the first place. I believe that freedom still needs to be balanced with these public values, but I think that the basic needs of citizens need to be met. As Polanyi believed, the state needs to provide housing and education, or the people will rebel. I wonder how close we are getting to a permanent rebellion in the United States especially with current events like the eviction moratorium just being struck down by the Supreme Court.

People are not always responsible for their setbacks. Reading about vulnerability in this article makes me think of the American dream and how I disagree that you can rise to wherever you want to be. Starting with colonialism in the United States inequality makes some people disproportionately more vulnerable and sometimes that vulnerability cannot be overcome.

Reading Fineman’s chapter “Reasoning from the Body: Universal Vulnerability and Social Justice” she hopes that there can be more advancement in equality. I wonder how far away that advancement could be and if we are on the right track. Fineman says we need a new legal framework looking through the lens of vulnerability. How do we reconcile Fineman’s view with Gopal’s about how a legal framework should develop naturally? We want equality but we want it to last and not break down like failed western law transplants.

Gopal thought the new version of law and development should be to look at each country’s legal system developing in its unique way and not universally. Fineman is trying to come up with a legal framework based on universal human reality. How will that affect each country’s individuality? Can we take shared human characteristics like vulnerability into account and still allow our legal frameworks to develop uniquely and naturally?

How do we fix the problems Fineman brought up in employment law? If somehow our nation changes from its worship of money will employer and employee relationships be more equitable? If we change the employer-employee relationship to more public values our local reality would have to adapt to the law which is the opposite of Gopal’s view. Maybe we could proactively encourage more equality in employment law step by step. It is important to have individual culture, but it is also inescapable that all humans have some shared characteristics, and it would make sense to take them into account in legal frameworks.

Reflection 3

Both Fineman selections for this week focused on her assertion that the idea of the “vulnerable subject” should replace previous liberal analysis focusing on the “autonomous, self-sufficient rational” subject. According to Fineman, using a vulnerability analysis shifts discussions of equality from focusing on personal identity and responsibility to focusing on the role of the state and societal institutions in producing privilege/disadvantage. It is a “post-identity” inquiry which aims at a more responsive state and more egalitarian society by first focusing on the body and the inevitability of dependency. Her critique relies heavily on the idea of institutions, both formally created institutions and informal social institutions. I appreciated Fineman’s attention to privilege and disadvantage, but thought she went too far in trying to separate it from identity. The vulnerability an individual has may be both related and unrelated to their identities, and may be exasperated by both institutions (as Fineman notes) and identity, history, culture, etc. Fineman acutely points out that “systems of power and privilege… interact to produce webs of advantages and disadvantages,” however I do not think that these systems are divorced completely from identity and often purposefully produce advantages/disadvantages based on cultural perceptions of identities. I do think vulnerability analysis helps to see how many problems in society transcend discrimination and exclusion from social institutions.

Vulnerability theory focuses on human embodiment and bodily needs, which are ever-present and ever-changing. While every individual is “particularly” vulnerable in unique ways, society can lessen and compensate for the vulnerability through institutions and structures. The current emphasis on individual choice masks social responsibility of the state and institutions, something Fineman is trying to correct through vulnerability analysis. Fineman accurately points out that the current American society has no guarantee for many basic social goods which directly affect the body, such as food, housing, and healthcare. One of the strengths of vulnerability theory within these two articles was its ability to address the limits of “identity politics” and showcase disadvantages that could affect any human, or citizen of a particular state. She criticizes the idea of state inefficiency, noting that efficiency may not be an appropriate measure of state success at all. The alternatives she suggests – equality, justice, fairness – are difficult to implement as they are difficult to quantify. I agree that the difficulty in quantification should not be an immediate bar to pursuing, but I think Fineman does not do much to shed light on how the empirical methods she suggests could be implemented in large and complex societies. As Fineman points out, law and policy have practical implications and organize individual experiences and expectations. How can vulnerability analysis fit within our current legal and policy frameworks when so much of the analysis is individualized or empirically based? Regardless of how it achieves the goal, I agree that the state, as creator of various social institutions, should assume a “corresponding responsibility to see that these organizations operate in an equitable manner.”

One notion I thought was particularly interesting was the concept that to use the term “vulnerability” is advantageous because it is under-theorized and ambiguous, giving the ability to “explore and excavate” the relationships within the term and open new avenues. If there is merit to this understanding of how discourse and rhetoric shape public perceptions and policies, why not also push for a similarly new term for “development”? As we have seen from our previous readings, “development” is a term which can be used in a variety of contexts (from social development to economic development, etc.) In each use, “development” is a value-laden term which assumes something of less value is progressing towards something of more value. This is particularly troublesome when used to label entire countries and populations as “developing” or “developed.” Is there an alternative term that the law and development movement could use moving forward, which isn’t stained by the colonial and Western-centered histories of the development moments to this point?

From my reading, it seemed as though Fineman was attempting to produce a universally-applicable critical theory lens to displace previous ones, but spoke about the “state” in a way which assumed all states act in similar ways and are structured similarly. Her aspirations for state action and her description of the inner workings of state structure seemed to heavily rely on models of the state seen in the West, which may not look or operate similarly to various states across the world which are not as industrialized or democratized, or which do not share the same liberal historical thinking she is attempting to replace. However, one question Fineman posed which I think is fruitful to think through regardless of the specific state, is: what does an active, yet non-authoritarian state, look like? How can state structures and law empower the “vulnerable subject” and lead to more equitable distribution of assets and privilege? This will likely look different depending on the country, population, and individual it is applied to, but the question is a helpful one regardless.

Overall, I appreciated how a vulnerability analysis places the lived human experience at the forefront, and emphasizes responsibility from the state and powerful institutions. Further, I appreciated the analysis of the law as “both inherently a social endeavor and a primary instrument of accomplishing social justice” which establishes and regulates duties and rights, and defines relationships between individuals, and between individuals and the state. While Fineman’s analysis predominantly focused on relationships and action items between the state and individual citizens, the analysis can be extended to the relationships of states and international organizations with individuals within the development context where responsibility is not placed solely on individuals and their ability to “develop” despite disadvantages.

Questions:

  • Does vulnerability analysis as Fineman has presented it address environmental sustainability? If not, can sustainability measures be added to vulnerability analysis?
  • How do environmental climate change considerations directly disadvantage or privilege certain individuals, and how does climate change directly affect human vulnerability and resiliency?
  • How can, and should, law and policy implement vulnerability analysis in ways which are feasible to current legal and political frameworks? How can we avoid the “transplant effect” in attempting to implement vulnerability analysis across states and cultures?
  • Can vulnerability and inherent dependency be used to foster greater attention to climate change and environmental crises?
  • Does vulnerability analysis account for historical moments such as colonialism and imperialism, and the continued effects of colonialism on individuals and populations?

Is there a difference in the “equality” Fineman discusses throughout her works and “equity”? If so, does it make a difference in Fineman’s critiques of the non-discrimination/identity-based work the US has done thus far?

Reflection 4

This reflection covers the two readings for class (08/30): “The Vulnerable Subject: Anchoring Equality in the Human Condition” and “Reasoning from the Body: Universal Vulnerability and Social Justice” by Martha Albertson Fineman. These both focused on the vulnerability theory; how the theory should be viewed, applied, and considered when regarding and, ideally, solving the basic (yet extremely complex) inequalities in through the world’s institutions.

As described in “The Vulnerable Subject”, under the vulnerability theory, the individual should not be viewed as an autonomous holder of rights; instead, to a vulnerability theorist, to be human is to be vulnerable. The theory rests on the assumption that the autonomous individual is a simple and unrealistic view of the human condition – this individual is simply a foundation for the politics of limited government and a state that serves the interests of the few, in the interest of the powerful. This individual is the base for the “restrained state,” suffocated by reliance on self; the isolated state of the individual under the restrained state facilitates the universal vulnerability of individuals throughout the world. But, according to Fineman, vulnerability is not synonymous for disadvantaged, discriminated against, or injured. In response to this vulnerability, Fineman suggests that by making vulnerability central in an analysis of equality, the state’s focus will be redirected onto the societal institutions which are created in response to individual vulnerability.

Fineman suggests that the state will be more responsive to the vulnerable institution, as it would have been created through the authority of the state. Conceptually, this makes sense as the state would be directly responsible for those impacted by their own institution, but there are prevalent flaws. While a more controlling state would be more receptive to these institutions, there would be potential for corruption – while it is unfair to assess the individual as an autonomous being, it is naïve to imagine that individuals will not act in their self-interest. It is nice to imagine a world where the state would constantly monitor vulnerable groups and ensure that all people are on an equal field within these groups, monetary restraints on the state would prevent equality from manifesting; taxpayers who are not benefitted would be unwilling to lose for the advancement of the vulnerable. Even if enacted, the state would inevitably react to the vulnerabilities of certain institutions, at the expense of other vulnerable groups; bias would be an undeniable factor, even if not at the individual level.

History has been riddled with bias, leaving a disturbing wake of prejudice. It would be a disservice to these groups if the years of prejudice and inequality were not addressed, and while Fineman claims that race, gender, sexual orientation, etc. from historically underrepresented groups should still be consider, she fails to describe how this would realistically be accomplished through the Vulnerability Theory. I think that it is unrealistic to assume that there would be a willingness to adapt to a view that the foundation of humanity is vulnerability. People throughout the world want to believe that their individuality is the defining characteristic of humanity, their self-interests will prevent them from association with conformity.

I found the critique that individuals, who are not impacted by the promotion of underrepresented groups, view these advancements as injury to their own life fascinating. It leads me to wonder if this thought process is based on monetary issues (i.e., paying taxes for a social inequality that does not impact the taxpayer directly is a waste of money), if it is based on the insecurities of the individual (i.e., a person is receiving a ‘handout’ therefore they have not worked as hard as someone that did not receive this), or if it is simply a response to shared vulnerabilities. Under the Vulnerability Theory, people of all races, sexes, and sexual orientations would be members of institutions according to their vulnerabilities, expanding the scope of protections and avoiding arbitrary classifications. Institutions are symbiotic, if there was a system of institutions set to work in harmony, many of the individual insecurities that people hold onto would evaporate; helping one vulnerable institution would provide direct and meaningful results to an individual’s own vulnerabilities. If a society embraced this notion, the collective human being would thrive.

I found much of these articles intriguing, but I have very serious doubts about the application of the Vulnerability Theory. I believe that it is an idea that could change the way that inequality is viewed and rectified, but I am not convinced of its applicability in an established nation. The Vulnerability Theory is only relevant without considering the “liberal” individual, only when ignoring that people ultimately will act in their own self-interest first.