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
While people try to minimize the risks and effects of harmful events, the chance of harm is uneven over the life course and among different people. As Fineman notes, “we are positioned differently within a web of economic and institutional relationships, [and] our vulnerabilities range in magnitude and potential at the individual level.”607 The experience of vulnerability is “greatly influenced by the quality and quantity of resources we possess or can command.”608 But vulnerability is ultimately a common experience among all people, everywhere, at all points in history.
Fineman has suggested that vulnerability’s universality offers more than is possible through other normative frameworks. Commenting on the limitations of equality theory predicated on non-universal group characteristics, Fineman writes that:
…the most troubling aspects of organizing equality discourse around identity characteristics is that it distorts our understanding of a variety of social problems and takes only a limited view of what should constitute governmental responsibility in regard to social justice issues. Identity categories have become proxies for problems such as poverty or the failure of public education systems. The focus only on certain groups in regard to these problems obscures the institutional, social, and cultural forces that distribute privilege and disadvantage in systems that transcend identity categories.609
An embodied, socially embedded vulnerable subject is a significant improvement over the idealized, abstracted liberal subject who has historically been the focus of public policy. Fineman has suggested that vulnerability theory “has some significant strength as an independent universal approach to justice, one that focuses on exploring the nature of the human, rather than the rights, part of the human rights trope.”610 Others have also commended vulnerability theory for its strength in this regard. Legal scholar Nina Kohn has suggested that an advantage of vulnerability theory is that it “encourages comprehensive approaches to addressing inequality and vulnerability, not simply piecemeal population-by-population interventions that fail to create fundamental change.”
611 While Kohn has noted that this aspect of the theory did not appear to be a particular point of focus for Fineman, it is one that has been valued – and critiqued – not only by Kohn but by others.612
Fineman’s approach to the vulnerable subject also offers some distinct advantages over other contextual and person-centred theoretical frameworks. Since I have drawn on Amartya Sen’s criticisms of institutional fundamentalism, it is useful to contrast the vulnerability approach to Sen’s lauded capability approach. There are some strong affinities between the two since both place emphasis on what individuals specifically require in their particular contexts. Yet while both the capability approach and the vulnerability theory envision social policies that respond to the particular contexts of individuals to promote their abilities to pursue life opportunities on their own terms, the vulnerability theory encompasses universality in a useful way, as Kohn has noted. The vulnerability theory is explicitly framed to apply to all people, given the inherent vulnerability that is present in human life. This more grounded aspiration to universality adds an important dimension to contextualized individual responsiveness, and one that may be pragmatically useful by creating a normative framework in which all citizens in a polity may see themselves reflected in the framework over their lifespan.
In addition, vulnerability theory properly emphasizes that responding to access to justice problems may require diverse forms of interventions, with implications beyond those typically delivered by legal professionals. Placing vulnerability theory as a cornerstone of the person-centred conception of access to justice recognizes that responding to access to justice problems will often require non-legal resources to address an individual’s vulnerabilities. This is important and should be distinguished from approaches to access to justice that focus primarily on an individual’s legal capabilities.
Further, vulnerability theory provides an immanent connection between theory and practice in relation to access to justice. Responding to a person’s particular vulnerability requires being to that person’s particular social and economic position, context, and the relationships in which that person is embedded. Placing vulnerability theory at the core of a conception of access to justice provides a linkage between the normative framework animating calls to improve access to justice and the methods that should be employed to heed that normative call. Vulnerability theory requires being attentive to the actual experiences of people with access to justice problems and designing solutions that are responsive to their preferred outcomes.
Fineman has used the vulnerability theory as an anchor to argue for a “responsive state”, which she describes as:
a state that recognizes that it and the institutions it brings into being through law are the means and mechanisms whereby individuals accumulate the resilience or resources that they need to confront the social, material, and practical implications of vulnerability. As such, a responsive state also recognizes that it has a responsibility to monitor the activities of its institutions to ensure that they function in an appropriate, egalitarian manner.613
This description recalls both the expansive vision of access to justice and also Selznick and Nonet’s idea of responsive law. But Fineman’s vulnerable subject provides a more detailed normative framework to give effect to these visions. For example, through a vulnerability lens, a responsive state might act on access to justice needs by assessing and supplementing individual needs on a highly sensitive, personalized basis….
Adopting Fineman’s concept of the vulnerable subject in the context of access to justice, we might recast law and justice institutions as ones that seek to address human vulnerability and contribute, so far as possible, to restore the subject to a supported, and if possible thriving, state of being.614 As Fineman notes, this work must be attentive to the particular situation of the individual in their complex social context, and as such, this work must be relational.615
Fineman describes at least five types of important human “assets” that are relevant in considering vulnerability and resilience and that social institutions can provide: physical assets, human assets, social assets, environmental assets, and existential assets.616 Physical assets are physical or material goods, such as wealth and property, “that determine our present economic quality of life and provide the material basis for accumulation of additional sustainable resources in the form of savings and investments.”617 Human assets are defined as “innate or developed abilities to make the most of a given situation”, such as health, education, and employment.618 Fineman further defines these as “those goods that contribute to the development of a human being, allowing participation in the market and making possible the accumulation of material resources that help bolster individuals’ resilience in the face of vulnerability.”619 Social assets are “networks of relationships from which we gain support and strength”620, such as family, friends, and other associations. Environmental assets are “conferred through our position in relation to the physical or natural environments in which we find ourselves”,621 and might include things like water and access to nature.
Existential assets are things that “help us to understand our place within the world and allow us to see meaning and beauty in our existence” through systems of belief or aesthetics such as religion, culture, or art.622 Law and justice, contested as they are, are interstitial among these asset classes. For example, the results of a divorce case might assign physical assets, such as property and income, among the former spouses, or might touch on social assets, such as custody arrangements for children. But a person-centred conception of access to justice would want to ensure that the people going through the divorce process were afforded resources from different asset classes to ensure that they could move through the process in a way that contributes to their resilience, rather than in a way that takes advantage of and increases their vulnerability. Conceptualizing access to justice through the person-centred lens of vulnerability leads to a contextually aware and potent antidote to the privations currently manifested by access to justice problems.
A person-centred conception of access to justice thereby offers an invigorated analytical framework with which to elaborate what improved access to justice should entail. By imagining institutions and relationships that improve access to justice as means of responding to and compensating for specific, contextual human vulnerabilities, we can re-cast justice institutions as more than guarantors of formal rights (though they would still play this role), but also as tools with which to positively contribute to resilience and human flourishing.”
Andrew Pilliar, Understanding the Market for Personal Legal Services to Improve Access to Civil Justice in Canada, 2020. Available at https://open.library.ubc.ca/soa/cIRcle/collections/ubctheses/24/items/1.0394721.