Questioning Cultural Assumptions

by Pauline Schneider, University of Freiburg

By questioning the adequacy of existing background institutions, vulnerability theory provides a valuable tool for advocating improvements in one country. However, during my time at Emory as a German PhD student (University of Freiburg, Germany), I found that this is not the only possible application of the approach. In Prof. Fineman’s Spring 2022 seminar, I experienced every week that vulnerability theory is also an insightful tool to compare different countries. By uncovering basic assumptions and fundamental legal structures, the approach provides valuable comparative objects that can give a better explanation for different outcomes. When an improvement of outcome is desired, comparative vulnerability analysis can also reveal which changes are required on a fundamental level.

Throughout the seminar, in particular three differences in basic assumptions between the U.S. and Germany became apparent to me.

The first was the role of the state and its assumed capacity to act. As we discussed the justification and high responsibility of the state in vulnerability theory, I felt that it was much more “natural” for me than for my American colleagues to understand the capacity that the state has – opposed to other actors – to provide resilience for the citizens. I already knew before the beginning of my studies in the U.S. that the American conception of the state is much more (neo)liberal, but I was still surprised at how deep a fundamental skepticism about the state runs in individuals. Throughout my life (and even during my time abroad in France), I have felt deeply connected to the state – almost naturally embedded. The American students told me that they had never thought of their state that way.

The second aspect concerned civil society. When we discussed in class its role and situation in the U.S., it quickly became clear to me that its role is quite different in Germany. I learned that in the U.S., besides in churches, a decreasing amount of people are involved in civil society and that young people do not belong to any political party. I, on the hand, reported that, at least in my social circle in Germany, almost everyone is active in several clubs. It is also very common, especially for law students, to be a member of, or at least affiliated with, a political party. We also talked about how clubs are highly regulated in Germany. If they are “against criminal law” or against the “idea of international understanding” they are prohibited. I mentioned that in law school I wrote at least two exams in administrative law that dealt with this prohibition. It was irritating to me that in the U.S. “bad civil societies” cannot be prohibited by law.

The third aspect was education. I always knew that free education, including free higher education, is an important value in Germany, but it wasn’t until the vulnerability seminar that I understood how far-reaching it can be to not have it. When we talked about resilience through education, it was baffling to me that college and especially law students were being told that they were a market product, that they needed to sell in the best way possible. I realized that the necessity of getting a good job to pay for the cost of education changes the whole perspective. I felt fortunate that I was able to spend an extended period of time in law school (6 years) and that I had the freedom to slowly find my place in the legal community.

Right now, I am about to finish my final paper comparing the U.S. health care system with the German one from a vulnerability perspective. Here, too, major differences are becoming apparent, the uncovering of which can hopefully provide for improvements.

For the future, I am sure that more comparisons like this are waiting. I am happy and extremely grateful to have learned vulnerability theory during my time at Emory. I cannot wait to continue working with the approach when I am back in Germany.

Family Law in the United States — Encyclopedia entry ‐ International Encyclopedia of the Social and Behavioral Sciences

by June Carbone and Martha Albertson Fineman

Image via Pixabay

“Sociologists talk about the role of family law in terms of its promotion of the “institutionalization” of the family. Institutionalization involves the creation of normative expectations, the coordination of behavior, and the regularization of roles associated with family formation, conduct, and dissolution. Carl Schneider (1992) described this institutionalization as accomplished through the “channeling function” of family law. Law’s channeling in the family context is less coercive than it is in, for example, criminal law, but more directive than the reliance on voluntary assumption of obligations found in areas such as contract law.

Two long-term developments currently are reshaping families and transforming family law: greater autonomy for women and growing economic inequality in Western societies. These changes have eroded the formerly near-universal acceptance of marriage as the only appropriate site for childbearing. Growing inequality has created a menu of options in family formation that are importantly shaped by class. Today, marriages tend to occur much later in life, if at all. Some commentators suggest marriage has become a “status symbol,” attainable only by those who have achieved both maturity and financial stability.
Sociologist Andrew Cherlin (2004) has also noted a move away from the social norms that once guided young people into marriage and kept them there. These norms imposed gendered roles that marked entry into adulthood across society (and which also fostered the dependence of wives on wage-earning husbands).

Modern relationships are seen as part of a quest for individual expression and fulfillment rather than societally mandated institutional obligations. Cherlin describes related societal changes, such as the growth in non-marital cohabitation and same-sex unions, as representing the “deinstitutionalization” of American marriage. Such normative “innovations” in coupling have also been viewed as undermining the very institution of family.”


II. The “Deinstitutionalizing” of the Traditional Family
The deinstitutionalization of the family occurred in response to three “revolutions” that took place mid-twentieth century: the gender equality, sexual liberation, and no-fault divorce movements. These forces redefined the relationship between men and women, remade expectations for work and family, and decoupled marriage and reproduction. (Jacob)

During the late sixties and early seventies, states began to lower the age of political majority from twenty-one to eighteen. This culminated in a constitutional amendment that lowered the age of majority on a national level, and eventually a Supreme Court ruling that extended the privileges of adulthood to teens. This change in the legal age had the inadvertent effect of making the newly available birth control pill legal on college campuses without parental approval. Economists Goldin and Katz indicate that the greater availability of the pill correlated with a significant delay in the age of marriage, women staying in school longer, and a dramatic increase in female enrollment in graduate and professional schools. (Goldin and Katz). The legalization of abortion in 1973 saw adoptions, which peaked in 1970, cut in half by 1975 as teen births steadily declined.

These changes had a profound effect on family formation. First, education increased women’s independence – even the mothers of small children could conceivably support themselves. Second, as women directed more energy to market labor, men were expected to contribute more to childrearing. Third, women gained greater control over their own sexuality, as much of the stigma associated with nonmarital sexuality was removed and pregnancy prevention became accessible. The transformation of women’s roles that came with the waning of the industrial economy prompted a revolution in family law. (Jacob)

The divorce law of the industrial era permitted marital dissolution only if one party (and one party alone) was at “fault.” Flouting well-defined marital obligations justified freeing the other spouse from the bonds of what was seen as an already defunct union. If both parties were at fault, however, neither could obtain a divorce. Perhaps in light of the growing independence of women, demand for divorce rose. Spouses colluded and ‘divorce factories’ rose up to help them. (Jacob) It was said that adultery was proved with certainty only where it hadn’t occurred, as where one of the spouses might agree to be photographed with a paid model outside a hotel to “prove” that divorce grounds existed. These practices discredited the process and increased the demand for divorce reform over the course of the twentieth century. When the dam obstructing reform efforts gave way, divorce reform swept the country with every state liberalizing the grounds for divorce between 1969 and 1985. The incidence of divorce grew dramatically, and single parents became a common occurrence.

As the stigma associated with non-marital sexuality declined, so did the legal distinctions between marital and non-marital children. In England, “illegitimate” children were said to be filius nullius, literally, the child of no-one, unable to inherit from their mother or father. In 1972, the United States Supreme Court struck down state laws distinguishing between marital and non-marital children with respect to inheritance. (Levy v. Louisiana) In the same year, it also held unconstitutional the refusal to recognize as a legal parent an unmarried, biological father who had lived with the mother and children. (Stanley v. Illinois) In the years that followed, family law eliminated most of the remaining distinctions between marital and nonmarital children.

Finally, custody law shifted from a model that presumed that children of tender years would be better off with their mothers, to one that assumes that children benefit from the continuing involvement of both parents. This legal shift dismantled the gendered roles of “mother” and “father” and replaced them with a more neutral parenting model.

Fineman, Martha Albertson and Carbone, June, Family Law in the United States (May 15, 2014). International Encyclopedia of the Social and Behavioral Sciences (2nd ed. Forthcoming), Minnesota Legal Studies Research Paper No. 14-25, Available at SSRN: or

Understanding the Market for Personal Legal Services to Improve Access to Civil Justice in Canada

by Andrew Pilliar

“3. The Core of the Conception: Universal Human Vulnerability

One fruitful approach that offers a way to transcend the universal/individual dichotomy is the vulnerability theory proposed by legal theorist Martha Fineman.597 This analytical framework takes human vulnerability, which is a necessary product of human embodiment, as a potent touchstone by which to revitalize the state’s relationship to its citizens.598 By placing this idea at the centre of the concept of access to justice, we can generate a normative framework that is both attentive to the particular needs of each individual and also universal in scope.

Fineman describes vulnerability as “universal and constant, inherent in the human condition”599, and as “…the characteristic that positions us in relation to each other as human beings, as well as forming the basis for a claim that the state must be more responsive to that vulnerability.”600 It is “the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional, or otherwise.”601 In Fineman’s analysis, vulnerability is a concept that is important “for its potential in describing a universal, inevitable, enduring aspect of the human condition”,602 and one “freed from its limited and negative associations”603 such as “victimhood, deprivation, dependency, or pathology.”604 Fineman’s effort to rehabilitate vulnerability and move it away from negative associations like deprivation resonates with the idea of moving away from the privation of access to justice problems.605 She develops the concept of vulnerability explicitly to “develop a more complex subject around which to build social policy and law; this new complex subject can be used to redefine and expand current ideas about state responsibility toward individuals and institutions.”606

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