Translated by Ursula Basset, Professor of Family Law, Law of Persons and Law of Successions, Director of the Interdisciplinary Department of Research in Family Matters at Austral University (Argentina)
Understanding How Vulnerability Can Serve as a Legal Category That Can Be Applied by the Judiciary:
- Vulnerability is a universal characteristic shared by every human being. It derives from its embodiment and its finiteness.
- The vulnerability perspective considers the person not as an individual, but as a being in relation, interdependent with other persons, and it is from this relationality that resilience is possible.
- Vulnerability has perceptive, hermeneutic, and corrective functions when applied in the judiciary.
- The perceptive function allows, through empathy, to perceive the vulnerability of each subject in a legal relationship, thus making it possible to conceive a more precise and concrete description of the legal species. The perceptive function of vulnerability requires the attitudinal skills of the legal operator and, eventually, interdisciplinary approaches.
- The hermeneutic function of vulnerability implies that if two or more interpretations of a norm are possible, the operator adopts the one that is most favorable to the vulnerable subject in the legal relationship.
- The corrective function is of exceptional application, and it is the one that allows correcting a law applying the criteria of fairness when the case is included in the law, but due to its exceptionality, the consequences of applying the law to the case have not been foreseen by the legislator and, if the law was to be applied to this case, the outcome would be manifestly contrary to what the legislator would have intended, generating a disproportionate impact.
- Although we are all vulnerable, the right must be corrected by virtue of the vulnerability only in specific cases that must emerge from factual evidence. The corrective function of equity is exceptional because it is presumed that the legislator has already made a preventive judgment to protect vulnerability, so in all cases, in principle, vulnerability is already contemplated in the legal remedy.
- Vulnerability is an open legal concept: its advantage lies in its breadth and flexibility. Its richness lies precisely in its breadth, in its polysemy, and sometimes trying to define requirements or trying to characterize it rigidly ends up limiting it.
- Despite its indeterminacy, it is possible to approach the concept of vulnerability through the categorical approach offered by international instruments and jurisprudence, such as the 100 rules of Brasilia, the International Treaties, or the jurisprudence of the Inter-American Court. For example, older people, children, women, people with disabilities. The categorical approach allows a first approach in an abstract manner, calling for the attention of the judiciary.
- To apply the vulnerability perspective, a second step is however needed, consisting of contextualizing vulnerability, by empathizing with the concrete and specific vulnerability of the person who appears before the justice: their correlative position, their circumstances, their relational context. For that, it is necessary to contract the categorical approach in the circumstantial perception of each subject of the legal relationship. For example, a man with a disability can, in a sense, hold his caregiver down with his demands. A consumer may have excessive relative claims based on a very favorable legislative framework. Or the reverse, in both cases.
- The immediacy of the judge and interdisciplinary teams are useful tools in the to the perceptive function of vulnerability.
- The vulnerability perspective requires certain attitudinal skills from the operator. Among the personal and social skills that the workshop participants recognize as essential, we find empathy and active listening: the first to be able to understand the situation of the defendants in the process; and the second to be able to recognize within each segment in the abstract, the vulnerability in the specific case.
- Empathy has several advantages:
- It allows providing the parties with the possibility of exercising their rights within the process under conditions of equality and dignified treatment, since it starts from the “recognition” of all the parties and their circumstances in the process.
- It also allows for a connection with citizens, who perceive justice as rigid, cold, inflexible, and removed from social needs and expectations.
- Preventive mechanisms should be devised regarding the abuse of the vulnerability perspective.
- It was pointed out that the excessive and decontextualized use of vulnerability as a category can lead to the crystallization of unwanted inequities within the process and incur in arbitrariness.
- Another form of abuse of the perspective is to use it only in a categorical sense, without making a specific analysis: belonging to a vulnerable category in the abstract does not necessarily mean being vulnerable specifically in that specific legal relationship.