by Martha Albertson Fineman
Excerpts from this piece by Martha Fineman raise questions and suggest alternative approaches that should be considered by policymakers as we build a sturdy reproductive justice framework for the future.
“A. Constructing the Collective
Both a human rights and a vulnerability approach are concerned with the rules governing human beings and the societies in which they live. However, a rights-based approach is grounded in liberal legal and political theory, whereas the individual of theoretical concern is the venerated holder of rights, ideally autonomous, independent, and cherishing his individual liberty.37 In contrast, vulnerability theory views this particular construct of the individual as ideological and “empirically indefensible” when assessing the appropriate relationship between the individual and society.38 A vulnerability analysis argues that a concern with rights focuses on the individual as an entitled and independent actor and consequently tends to “obscure the continuous and basic role the state plays in society as a whole, as well as the ways in which it defines the lives of all individuals within it.”39
The whole idea of individual rights tends to assume an ideally restrained or necessarily aloof state that may provide some basic essential services but is fundamentally uninvolved in orchestrating the mundane aspects of individual lives. The idea of individual rights, understood in its “negative” sense, serves as a check on the development of an overly active state.40 Of course, the idea of human rights can also be used to make positive claims for economic or social benefits against the state. However, broadly constructed positive rights claims are historically viewed as exceptional, in need of justification, disfavored, and, if recognized, are often in practice under- or unenforceable.41
In traditional liberal thought, state or collective action is posited as theoretically antagonistic and inherently problematic for venerated individual liberty.42 The characteristics of the individual subject at the center of law and policy (the “rights holder”) are such that they minimize the need for and ultimately pathologize the possibility of individual reliance on the collective (in either its social or governmental form). This is particularly true if such reliance could result in the encroachment of another individual’s rights (such as to liberty or property).
This liberal legal subject, cast as independent, autonomous, and liberty-seeking, leaves the body behind.43 The human being at the center of law is thus perceived outside of social relationships, which are the structures both in which we experience vulnerability and upon which we depend for the resources to ameliorate such vulnerability. This legal subject is a radically individualized entity, abandoned to legal tools and devices such as consent, contract, independence, self-sufficiency, self-reliance, and rights, which are woefully inadequate to address the inescapable and lifelong dependence on society and its institutions that our vulnerability produces.44 As a result, a rights-based analysis operates in a manner that, at least initially, is resistant to state-initiated or propelled redistributions of economic or political power or privilege in favor of individualized remedies.
By contrast, vulnerability theory views a robust and active state as essential to both the well-being of the individual and the reproduction of society.45 Vulnerability theory concedes the inevitability of law, as well as some form of governing authority, while also appreciating the potential of the state as a unique mechanism for the construction of a just society.46 Additionally, the theory recognizes that the argument about the role of the state is not whether it should have greater (or lesser) involvement, but rather the justness of the myriad ways in which the state is currently (and always) acting in creating society through the creation and maintenance of the social institutions and relationships in which we all live our day-to-day lives. While it is a critical theory, vulnerability theory is distinguished from other “‘progressive’ approaches that seem unable to move far beyond a focus on an oversimplistic notion of an abusive or punitive state” in that it recognizes the necessity for and the inevitability of governance and law, as well as the positive potential this represents. 47
B. Foundational Questions and First Principles
Ironically, I initially thought of vulnerability theory as presenting a stealth approach to human rights—one designed with an individualistic American audience in mind.48 I have come to realize that characterization was both inaccurate and misleading. Vulnerability theory grew out of my earlier work on dependency49 and as a result it has always focused more on understanding the “human” rather than the “rights” facet of the trope. The implications of this distinction between rights and the human have become even more evident over time as the theory has developed.
Significantly, when the focus is on rights, the foundational question is very different than that which is posed by an inquiry into what it means to be human. In Interrogating the Morality of Human Rights, Michael sets forth his basic inquiry in the first few pages of the first chapter: “What is a human right?”50 Consistent with his textual approach, he directs further inquiry by asking, “[W]hat does the term ‘human right’ mean  in the context of discourse about such rights?”51 In contrast, vulnerability theory begins by asking the question, “What does it mean to be human?”52
The difference between the initial focus of each approach influences which subsequent questions are developed and evolve, as well as determining which values, objectives, and remedies are considered primary to defining a just society. Of particular significance is the way the choice between a focus on the meaning of rights versus the human will differently shape the task of defining the individual’s relationship to the state or collective, as well as the perception of the role of law and governance in a just society. The nature and logic of the inquiry into what constitutes justice will differ depending on whether our initial focus is on the nature of rights or the nature of the human condition.
Both the vulnerability theory’s fundamental question of what it means to be human and Michael’s inquiry into what constitutes a human right are descriptive, or empirical, questions—they rely on something in existence. However, instead of looking to existing documents or relying on established jurisprudential conclusions to find an answer, vulnerability theory undertakes to define the essence of the inherent human condition.53 This search is for what might be labeled a “first principle”—the shared characteristic of humanness that cannot be further reduced or refined, one that is present over time and space.54
The fundamental reality of the human condition is our “embodiment.”55 We are, in essence, corporeal beings, vulnerable or susceptible to changes in both our physical and social well-being over the life course.56 Vulnerability theory thus begins with the fragile materiality of the body, not with rights or assertions or assumptions about rationality, choice, or assumed preferences for liberty and autonomy. The body here is understood as an anthropological or ontological concept—a universal construct that precedes law, morality, politics, or economics. It is essentially finite, mutable, and inevitably dependent.57
IV. REASONING FROM THE BODY: THE SUBJECTS AND OBJECT[IVE]S OF LAW
Beginning with the body means confronting in our theory and practice the realities of the body and its resulting vulnerability or susceptibility to change over time in both its physical and social status.
58 Universal and fundamental, vulnerability defines the human condition.59 It is not a characteristic of only some individuals or groups, nor does it differ in quality or degree from one individual or group to another (although it is often portrayed in that manner).60 We are all always vulnerable, as there is no position of invulnerability.”61 What is variable among individuals are the amount and quality of the resources or resilience each has with which to adapt, adjust, compensate, and ameliorate universal vulnerability. This should be central to our theories of justice and the politics of allocating individual and collective responsibility.
Importantly, beginning our theoretical inquiry with the body shifts the focus of analysis away from categories of demographic difference and assessments of the position of some groupings of individuals. Instead, the initial focus is on the designated social purposes of the contrived institutions and relationships that have been established to provide essential resources or assets of resilience to individuals and well-being to society.
The veracities of our bodies necessitate that we live in these social or institutional contexts throughout life; they provide us with the resilience necessary not only to survive but also to thrive in the face of our vulnerability.62 Because we are embodied beings, we are inevitably “embedded” within these social institutions and structures—we are dependent on them.
63 Under vulnerability theory, the nature, limits, and needs of the body are seen as both the origin of and justification for society and its institutions.64 The material and developmental limitations of the body necessitate the formation of responsive structures—families, communities, governing systems, and organizations of service, care, and protection.
Significantly, individual dependence on social institutions is constant but the nature of that dependence varies and fluctuates over time in response to the circumstances or developmental stage in which we are located. We depend on different institutions and relationships over time, depending on changes in situation and circumstance. For example, we are completely dependent on comprehensive care from others as infants.65 However, the birth family recedes and other institutions typically become more prominent later in an individual’s life, when the need for care arises only occasionally (such as when we are ill or injured). Our dependence is more centered on extrafamilial social organizations, such as those comprising the educational, community, employment, and financial systems.
In thinking about the individual within lifelong institutional contexts, it is important to realize that social arrangements encompassed within the family, healthcare, and employment/market systems operate “simultaneously and sequentially.”66 A weakness in one system can be compensated by a strength in another. A strong family can help minimize the impact of a less-than-sterling educational system.67 However, it is also true that successful acquisition of resources in one stage, such as education in childhood, profoundly affects the possibility of success in subsequent social stages, such as in the university or employment.68
While individual dependence on any specific institutional arrangements can be thought of as episodic, alterable, and circumstantial, it is essential to recognize and theoretically address the reality that dependency on some set of social institutions and relationships—be they the market, financial and employments systems, or educational and health care institutions—is inevitable and ongoing for everyone throughout life.
69 This understanding of the nature and extent of human dependence on social institutions and relationships is crucial to grasping vulnerability theory as an alternative to both a human rights and a social contract paradigm for thinking about responsibility and the nature of social justice.70 The resilience-conferring social institutions and relationships in which we live our lives are constructed and maintained by the law and are essential instruments of either attaining or frustrating social justice in society.71 They are creatures of the state and therefore the state has the responsibility to construct, monitor, regulate, and maintain them in a just manner.72
A “robust” sense of social justice and collective or societal responsibility must be built upon the fundamental recognition, acceptance, and appreciation of human vulnerability and dependence.73 An embodied, inherently socially embedded subject should be at the center of our theories. An embodied vulnerable subject should replace not only the independent actor adorned with ability, agency, and assurance that constitutes the holder of rights but also the “reasonable man” of law, the artificial and inapt “rational” man of economics, and the contracting man of political theory.74 This vulnerable theoretical subject allows us to incorporate complex needs and relationships inherent to the human condition into how we think about the role of government and the nature of both individual and collective responsibility in ways its liberal, autonomous, and independent cousin does not.