At the Boundaries of Law: Feminism and Legal Theory

Introduction by Martha Albertson Fineman

“This book is the product of an increased interest in feminist scholarship as it relates to legal issues. Law is an area relatively untouched by the post-modern currents that have washed through other disciplines, but now appears to be caught within tides of critical methodologies and conclusions that threaten its very roots. This collection of papers was selected from a larger group presented over a four year period at sessions of the Feminism and Legal Theory Conference at the University of Wisconsin. They reveal that feminist legal theory represents both a sub­ject and a methodology that are still in the process of being born. There are no “right” paths, clearly defined. This scholarship, however, can be described as sharing the objective of raising questions about women’s relationships to law and legal institutions. Continue reading At the Boundaries of Law: Feminism and Legal Theory

The “Still Face” of a Compassionately-Challenged Society

by Martha Albertson Fineman from “Vulnerability, the Responsive State, and the Role of Religion” by Martha Albertson Fineman and Silas W. Allard

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“Recently, while reading an article titled “The Decline of Empathy and the Appeal of Right-Wing Politics,” I was struck by the relevance of the lessons gleaned from an experiment with mothers and infants, to figuring out how to foster a society that valued and practiced policies of social justice. In the experiment, mother and infant interactions were analyzed in two contrasting situations. Continue reading The “Still Face” of a Compassionately-Challenged Society

Gender Equality in Public Procurement

by S.N. Nyeck

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Procuring Along the Equality Grain

“To address the annoyances and questions that gender raises and the policy trajectories that this category brings to global public procurement reform, one needs not confine innovation to the margins. This is to say that conversing with the idea of equality in a more substantive way might provide us with better tools for discussing gender in public procurement without limiting the frame to discrimination only or to the traditional equal opportunity analysis. This is an invitation to consider alternative values and policy venues in probing the size and texture of the equality grain as perhaps of better nutritional value than the mere bringing in of discrimination sheaves in the procurement field. Assuming such a consideration is agreed upon, it becomes useful to ask, what is the subject of “gender” that brings a substantive (not just formal, procedural, or opportune) vision to equality in public procurement? This subject is, it is contended, the “vulnerable subject.” Moreover, considerations for a substantive approach to gender equality must argue for valuing states’ self-constitutive (Korsgaard 2009) functions and actions in an age of complex global governance arrangements. Hence the vision of a “vulnerable subject” as the center agent of a reformed vision of gender equality in public procurement is necessarily intertwined with concerns about the future of democratic (Freeman and Minow 2009), responsive and responsible governance (Poh and Stumpf 2005; Chooner and Greenspahn 2008). It therefore follows that “the vision of the state that would emerge in such an engagement would be both more responsive and responsible” (Fineman 2009, 2 My emphasis).

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What Vulnerability Theory Is and Is Not

by Martha Albertson Fineman

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Understanding Vulnerability Theory

Vulnerability theory challenges the dominant conception of the universal legal subject as an autonomous, independent and fully-functioning adult. Rather than building our systems of law and justice upon this static figment of the liberal imagination, vulnerability theory argues for a socially and materially dynamic vulnerable legal subject, based on a richer account of how actual peoples’ lives are shaped by an inherent and constant state of vulnerability across the life-course. Human beings are embodied creatures who are inexorably embedded in social relationships and institutions. There should be political and legal implications for the fact that we live within a fragile materiality that renders us constantly susceptible to change, both positive and negative, in our bodily and our social circumstances. Sometimes bodily vulnerability is realized in the form of dependency on others for care, cooperation, or assistance.  Sometimes it is realized in our dependency on social arrangements, such as the family or the market and economy.  But, whether realized or latent, vulnerability is universal and constant – an essential and inexorable aspect of the human condition.

Continue reading What Vulnerability Theory Is and Is Not

Vulnerability as a Key Concept in Relational Patient- Centered Professionalism

by Janet Delgado

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“The goal of this paper is to propose a relational turn in healthcare professionalism, to improve the responsiveness of both healthcare professionals and organizations towards care of patients, but also professionals. To this end, it is important to stress the way in which difficult situations and vulnerability faced by professionals can have an impact on their performance of work. This article pursues two objectives. First, I focus on understanding and making visible shared vulnerability that arises in clinical settings from a triple perspective: patient and family, health professionals, and institutions. Second, to address this challenge for professionalism, in this paper I articulate the term “relational centered-patient professionalism”, which has two main axes. The relational approach means taking into account how the relationships among professionals, patients and institutions determine the constitution and evolution of those professional values. The focus on patient centered care is indispensable, because it is the ultimate goal pursued by the development of these professional values, and must always be at the center.”

Read more here.

Delgado, J. Vulnerability as a key concept in relational patient- centered professionalism. Med Health Care and Philos (2021).

Writing Vulnerability into the Social Contract

by Martha Albertson Fineman

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In western political traditions, the idea of political (and legal) subjectivity places the individual in relationship to the state and its institutions, with the understanding of the terms of the social contract defining the quality and nature of that relationship. Specific conceptualizations of the political subject will affect the status of everyone in society, although not everyone may be considered a fully realized and legally capable subject. For example, at the formation of American democracy (and within its foundational documents), fully realized political subjectivity was limited to white, male, property-owning or tax-paying individuals of a certain age and religion, who were also “free.” Over the course of the nineteenth and twentieth centuries, certain of these qualifiers were removed and full political subjectivity was recognized for members of previously excluded groups. However, the expansion of the membership of the population granted full political subjectivity did not automatically transform the perceived nature or assumed capabilities of the political subject. Indeed, the inclusion of those previously excluded was based on the assertion that there were no relevant differences between them and the original political subject. The mode of inclusion was assimilation, underscored by the application of a principle of formal equality.

The implications of this exclusion and eventual assimilation of women and significant numbers of previously excluded men are significant. While the contemporary race- and gender-neutral political subject may look different than the original, many aspects of the constitutional relationship between the political subject and the state remain similar to those developed hundreds of years ago. Importantly, the historic political subject was not only white, male, and propertied, but phenomenologically deemed to possess idealized qualities and characteristics derived from the aspirations, experiences, and perceived capabilities of the members of that limited and unrepresentative group. The experiences and perceptions of those previously excluded were, in many ways, significantly different from that narrowly defined subject, and potentially incompatible with the norms and values underlying the original organization of state and individual responsibilities. The contemporary political subject incorporates only some of the host of possible variations in human characteristics, experiences, and capabilities: he is a fully functioning adult who is independent and self-sufficient, fully capable of taking care of his own needs and the needs of those dependent upon him. This political construct is theoretically inadequate, incapable of fully (or fairly) informing the development of political and legal norms to address many of the situations and circumstances that occur over the life course of most actual individuals. It is certainly inadequate to support a robust sense of social justice.

Continue reading Writing Vulnerability into the Social Contract

Manufacturing Resilience on the Margins: Street Gangs, Property, & Vulnerability Theory

by Lua K. Yuille

“The pages that follow advance a simple central proposition: Local governments should pay gang members to refrain from gang activity. But the deeper story this article tells is more complex, with implications far beyond the relatively confined world of the contemporary American street gang inhabited by an estimated 850,000 members. That more complex story is of the universal human condition of vulnerability, the instinct and imperative to build mechanisms to confront that vulnerability, and of property’s important role in that task.

The surface story of this article offers a provocative and unexpected approach to what is framed as a growing national, regional, and local gang threat. More predictable, is the response of local governments and law enforcement agencies, which have developed creative initiatives to disrupt and dismantle the reported 33,000 gangs across the country. Most of this experimentation has focused on variations on traditional policing, like the creation of specialized “gang units” within police departments and targeted heightened surveillance operations against gang leaders. However, in the 1980s and 1990s, political actors also turned to civil legal mechanisms to combat what continues to be framed as the growing, intractable menace of the corporatized, terroristic, criminal street gang.

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Vulnerability and Power in the Age of the Anthropocene

An excerpt from “Vulnerability and Power in the Age of the Anthropocene” by Angela P. Harris

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“In a paper published in 2011, a group of scientists led by Will Steffen presented evidence of what they called “The Great Acceleration:” a sudden intensification of the impact of human activity on the global environment. Taking the measure of diverse human phenomena, from human population and fertilizer consumption to the number of McDonald’s restaurants worldwide, the authors generated a series of charts. Each chart featured a curve sloping steeply upward, beginning around 1945. Extreme environmental change on planet Earth is nothing new. As J.R. McNeill points out in his environmental history of the twentieth-century world, “[a]steroids and volcanoes, among other astronomical and geological forces, have probably produced more radical environmental changes than we have yet witnessed in our time.” Nor is human impact on the biosphere unprecedented. As beings embedded in biological systems, humans have always affected the fortunes of plant and animal species around us (and within us, as we will see), and these impacts increased as humans began farming, building cities, and domesticating other animals. However, since the dawn of the Industrial Age the scale of human intervention in human and trans-human planetary systems has grown dramatically. McNeill explains that the transition from reliance on human and animal power to reliance on fossil fuels made possible an extraordinary growth in energy use:

We have probably deployed more energy since
1900, than in all of human history before 1900.
My very rough calculation suggests that the
world in the twentieth century used 10 times as
much energy as in the thousand years before
1900 A.D. In the 100 centuries between the dawn
of agriculture and 1900, people used only about
two-thirds as much energy as in the twentieth

Continue reading Vulnerability and Power in the Age of the Anthropocene

Bioethics & Vulnerability: Recasting the Objects of Ethical Concern

by Michael Thomson

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Standard accounts of the emergence of bioethics are typically anchored in the progressive politics of the sixties. In these narratives, bioethics is cast as a response to the Nuremberg trials and a series of abuses committed in the name of research in the decades that followed. These originary tales position bioethics alongside the civil rights movement. It is a counter-cultural force protecting the rights of individuals, checking the excesses of (some) researchers, and an increasingly technological, commercial, and industrialized health system. As the bioethicist and historian Albert Jonsen argued, early bioethicists were “pioneers” who “blazed trails into a field of study that was unexplored and built conceptual roads through unprecedented problems.” The pioneers “radically change[d] the practice of scientific research in America.” Since these early days, bioethics has grown to attain a particular place in the governance of science and technology. It has “spawned a new profession and seeded novel social institutions.” It acts directly through structural requirements for ethical review, as well as indirectly through the ways in which bioethics has come to shape public deliberation. It has also influenced processes of legal reasoning and governance, with law becoming increasingly undifferentiated from bioethics and both “seen as normative modes that can preempt and control biomedicine.” As José López concluded over a decade ago, “In little over 30 years, bioethics has managed to position itself as a key node through which a variety of social, political and scientific activities are refracted.”

Continue reading Bioethics & Vulnerability: Recasting the Objects of Ethical Concern

Call for Papers: A Virtual Workshop on Vulnerability Theory, the Employment Relationship, and the State (March 2021)

Vulnerability theory identifies the human condition as one of universal and constant vulnerability. That vulnerability is managed and mediated through the creation of social institutions and relationships. As part of the state mechanism for distributing social goods and ensuring society’s welfare, those institutions ultimately can and should be judged by how responsive they are to human vulnerability.

This workshop seeks to look at the status of workers in a corporate system, considering how corporations have changed from grudgingly addressing human vulnerability within a capitalist scheme of wage labor, to increasing rejection of the very idea that human vulnerability should be a matter of corporate concern.

In the middle of the twentieth century, corporate America oversaw a “family wage system” that promised secure employment with benefits to a large swath of white men. Within this patriarchal system, the “organization man” saw his future as tied to the success of his company, while corporate leaders saw the health of their organizations linked to the fate of the country. Provisions for old age, family dependents, illness, and injury were part of a comprehensive system that united corporate and workers’ interests, while also recognizing the significance of societal institutions, such as the family. By contrast, today, the characterization of the corporation as solely an instrument to advance private ends permits corporate leaders to ignore workers’ increased insecurity, often at the expense of other stakeholders and even the corporation itself. The result creates artificially competitive cultures that increase societal inequality and instability, reduce diversity, and undermine efforts to make employment more responsive to individual worker’s, as well as societal needs.

We intend this workshop to cover an array of topics that center on the legal and ideological or conceptual “evolution” of the corporation in relation to its legitimizing societal role in responding to human vulnerability. We welcome the participation of scholars working in law and related disciplines, including economics, community development, history, political science, sociology, and social psychology.

Click here for workshop and submission details.