by Laura Spitz
Abstract
“In a recent essay in the Yale Journal of Law & Feminism, Martha Fineman proposed the concept of shared “vulnerability” as an alternative framework to traditional American equal protection analyses for describing, assessing, and addressing economic and social inequalities. Putting aside the particulars of her theory for a moment, critical to Fineman’s analysis is her assertion that a vulnerability approach to the allocation and (re)distribution of societal resources requires “a more responsive state.” In this paper, I focus on a basic question provoked by her call for a more responsive state, namely: to what does she refer when she invokes the “state”‘ Fineman does not resolve this question, except to say that the state is “the manifestation of public authority and the ultimate legitimate repository of coercive power” but not necessarily the nation-state. If not necessarily, or not only, the nation-state, then where is it (or where might we locate it) for the purposes identified by Fineman. At both a conceptual and organizational level, one answer might be transnational or supranational institutions in North America. Much of the American literature theorizing the state has focused on the nation as the locus of state power and authority. Functional theories, instrumental theories, and critical theories have typically conceived of the state as defined by territorial and/or geopolitical borders. Within legal scholarship, an even narrower focus has been common: the state as adjudicatory apparatus. Yet it may be more productive (and promising) for feminists to shift the conceptual lens so that it embraces a wider and less vertical conception of state power. Thus, this paper takes up Fineman’s invitation to begin the task of theorizing a “more responsive state” in the US, by looking beyond the US to North America, and putting two groups of scholars in conversation with one another: feminist legal theorists, on the one hand; and integration theorists, including governance theorists within that broader category, on the other. Ultimately, my aim is to suggest that feminist legal scholars might usefully begin (re)theorizing the state by engaging with the process of North American integration (and with integration theorists) in order to explore integration’s emancipatory or progressive potential for responding to the sorts of inequalities identified by Fineman.”
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