Author: Mangala Kanayson

by Martha Albertson Fineman and Silas W. Allard

Image by msandersmusic from Pixabay

“Returning to the “still face paradigm,” we might ask: what lessons are inevitably learned by those currently struggling within a society that appears unresponsive to human need and suffering? How should we respond when the state is unresponsive? Contemporary Western societies are typically organized around values of individualism and autonomy and reflect a faith in free market “principles” to provide for the collective welfare.⁷ In its extreme form (as in the United States of America), the state is seen as mostly unnecessary to individual and institutional prosperity and urged to get out of the way. In this type of neoliberal market-oriented society, belief in privatization and efficiency have not only prevailed, but triumphed, over more socially attentive and responsive models of society. What happens to social cohesion and trust when the individual is held to expectations imposed by a regime of “personal responsibility,” tempered slightly by some recognition of “individual rights” against state excesses? It is a society built around competition, not compassion.

The primary concern of this chapter is the damage that occurs to the social fabric of a society when the failure to thrive is blamed on the individual, and the social institutions and relationships upon which we are all dependent have been drained of the resources they need to provide the minimum component of the constitutionally mandated equality of opportunity and access. It laments the incoherence in the related and contingent social institutions that populate the complex global and market-oriented societies that have been created in the past several decades. These are societies where the means for individual survival, as well as the possibilities for flourishing, are cavalierly assumed to be within an individual’s grasp, ideally not requiring any sustained governmental responses.

Rather than accepting this designation of individual responsibility, we should be asking ourselves, and those politicians and policy makers who shape our institutions, a bevy of hard questions; we should be demanding answers that reflect at least some recognition of social responsibility. To start this inquiry, let us ask those politicians obsessed with austerity to imagine what lessons children learn when the books and other materials they are provided in public schools are outdated and incomplete and the equipment required for even a modestly adequate technological education is both worn and sparse? What do these children understand as necessary for a fulfilling life when music and art are missing from the curriculum and physical education is deemed a luxury? How do children understand the value society gives them when the buildings in which they are “educated” are desperately in need of repairs and their local community refuses to generate the resources necessary to address the problem? How do these children understand their society’s sense of justice and fairness when, at the same time they are experiencing deprivation, they see a multimillion dollar sports complex or some other symbol of societal indulgence for the well-off being constructed with the assistance of public resources?

Continue reading Vulnerability, the Responsive State, and the Role of Religion

by Martha Albertson Fineman

“Autonomy is not an inherent human characteristic, but must be cultivated by a society that pays attention to the needs of its members, the operation of its institutions, and the implications of human fragility and vulnerability. A commitment to equality should not be seen as diminishing the possibilities for autonomy. In fact if we desire a society in which a great number of individuals can exercise autonomy, not only those who have been historically privileged, society must be built on a foundation of equality. Nor should autonomy be confused with isolation, or separation from society. Part of the reciprocity inherent in being a member of society is that everyone has a role to play in ensuring the greater good. Lack of involvement or rejection of responsibility for the needs of others in that society should not be an option. Because we are part of and benefit from society, we must be attentive to responsibilities that extend beyond satisfying one’s own personal and family needs. Autonomy understood through a lens of equality would carry social and reciprocal duties to others; it would not be confused with selfishness, self-absorption and egocentric attention to only one’s own circumstances.

It is also true that state responsibility to the individual in regard to autonomy does not require that there be unfettered or endless choices for those few members who have reaped the benefits of society and its institutions. It should not be the case that the only limitation to accumulation of opportunities. and rewards is an individual’s capacities and resources. The society should be able to define what normative and legal limitations will apply to both methods and modes of individual accumulation. On the other hand, if autonomy is understood consistent with prioritizing equality, that would seem to require that society also provide some threshold of opportunity for everyone. The task would be for the state to exercise its authority to ensure that access and opportunities existed that would provide some minimal, viable number of worthwhile options from which an individual can choose, thus realizing their autonomy.

Of course, “equality” and “autonomy” are abstractions.   Their amorphous, overarching, and imprecise natures mean that both terms can be used by those holding disparate positions on governmental responsibility. My point is that neither equality nor autonomy can be understood in isolation from each other and it seems that one will be emphasized or privileged in society at the expense of the other. So our equality, which is formal and focused on sameness of treatment, brackets off vulnerability and dependency in order to be able to assume away the resulting disadvantages and burdens they place on individuals’ ability to generate options and, thereby, their ability to exercise autonomy. Achieving some viable mechanisms of equal opportunity and access would demand more from the state in terms of rules and regulations restricting the unfettered autonomy of some, as well as a more just reallocation of some existing benefits and burdens within society.”

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Conclusions—The Need for a More Responsive State

“It must be made clear that the choice is not one between an active state on one hand versus an inactive state on the other. Rather, the choice is whether or not the state is going to act to fulfill a well-defined responsibility to implement a comprehensive and just equality regime that ensures access and opportunity for all consistent with a realistic conception of the human subject. Our present insistence that the state need be constrained underestimates or even ignores the many ways in which the state—through law—shapes institutions from their inception to their dissolution and the ways in which those institutions produce and replicate inequalities. We must show how these institutions operate to produce systems of privilege. To this end, it is imperative to recognize that no one is an autonomous, independent individual.

We all benefit from society and its institutions, but some are relatively advantaged and privileged in their relationships, while others are disadvantaged. Under a vulnerability analysis the inquiry would be into the organization, operation, and outcomes of the institutions and structures through which societal resources are channeled. The state is constituted for the general and ―common benefit – not for a select few.  Under a vulnerability analysis the state has an obligation not to tolerate a system that unduly privileges any group of citizens over others. It has a responsibility to structure conditions in which individuals can aspire to meaningfully realize their individual capabilities as fully as possible.

Continue reading The Vulnerable Subject and the Responsive State

by Martha Albertson Fineman

One hundred years ago, in 1908, two Boston women enlisted Arthur Winfield MacLean to tutor them so they could sit for the Massachusetts bar examination. From that humble but significant beginning grew Portia Law School, which blossomed into the New England School of Law. Portia was the first law school established exclusively for women, who at that time were denied entry into all but a few existing schools of law. This year New England Law celebrates its 100^th anniversary and the integration of women into the legal profession, with women making up over half of the student body at some law schools and making progress in achieving partnerships and professorships.

In 1908, the legal profession was not alone in its exclusion of women.The early twentieth century was a time of entrenched—even celebrated—gender discrimination in American society. Treating women differently and cloistering them away from politics and the professions was justified by assumptions about their inherent distinctiveness as human beings. Certainly, women‘s unique role was valued, perhaps even more so than that of their male counterparts, at least rhetorically. However, the general perception of society was reflected in legal pronouncements that women‘s constitution and temperament meant they were ill-equipped to handle the demands of public and political life. Women‘s divine destiny was found in the nursery and kitchen.

Continue reading Evolving Images of Gender and Equality: A Feminist Journey

by Martha Albertson Fineman

“It is not surprising in a society which offers, as icon, a construct of the autonomous individual and which trusts, as an ordering mechanism, the abstraction of an efficiency-seeking market, that sooner or later there would be a radical attack on any existing notion that there is some collective responsibility for children and other dependent persons. We have a historic and  highly  romanticized affair with the ideal of the private and the individual, as contrasted with the public and the collective, as the appropriate units of focus in determining social good. After all, the very concept of the private defines the domain of the individual- an unregulated space where individual freedom reigns and in which each would-be-king can construct his castle. If a child is part of that private landscape, it is deemed a private matter, not the occasion for public subsidy or support. Children are like any other item of consumption, a matter of individual preference and individual responsibility.

Continue reading Contract and Care

by Martha Albertson Fineman

Image by Gerd Altmann from Pixabay

1. Introduction

‘The issue of welfare reform has generated a great deal of discussion in political and public arenas on welfare reform. Some participants in this debate assume that the goal of welfare reform can and should be the eradication of public financial support for those who currently rely on welfare subsidies to provide for themselves and their families.¹ The debate has focused on single mothers, who have become the targets of social scorn and are often characterized as paradigms of welfare gone wrong. Those wishing to trim welfare costs depict the single mother is viewed as a burden on the taxpayer and, as a political construct, as pathologically dependent upon the “dole.” Single mothers are considered to have relied on public support to such an extent and for such an extended period of time as to negatively affect their personalities and their potential for productive lives in society.

These characterizations of welfare mothers rest upon a certain set of assumptions. One such assumption is that dependency is an avoidable condition — the consequence of self indulgence, weakness of will and laziness.

Independence, by contrast, is associated with productivity and strong moral character. Another assumption involves the belief that certain types of societal transfers are earned and the recipients are therefore entitled to receive them, while other subsidies are charitable concessions to those people who are too irresponsible to provide for themselves.

Each of these assumptions about welfare mothers contains flaws. After discussing the contemporary discourse in our society concerning dependence versus independence, this article examines the manner in which only certain subsidized individuals are currently characterized as dependent based on the type of subsidy they receive. The nature, not the fact, of subsidy distinguishes the independent from the dependent. This article argues that all individuals in our society, including those who consider themselves independent, receive some form of subsidization. Subsidy can take many forms. Although subsidies often consist of direct grants, those individuals or groups who receive tax assistance or relief also receive subsidies. In the context of the family, those men and children who derive significant benefits from their consumption of women’s unpaid caretaking labor also receive a subsidy.

Although particular manifestations of dependency and the form of subsidy they require may be related to the societal circumstances in which an individual operates, dependency and subsidy as social phenomena are inevitable and universal. Everyone has been, is, or will be dependent on others for essential care since we have all been infants and many of us will require assistance due to either age, disability or illness. Moreover, this dependency is not only an individual matter — society relies on the subsidy of caretakers perform an essential and valuable functions.

The final section of this essay critiques two “solutions” that have been advanced to address the perceived dependency problems with and of single mothers: the encouragement of the traditional nuclear family and the efforts to force single mothers into the paid labor force.  These solutions are inadequate and doomed to fail because they rely on unrealistic assumptions about the nature of dependency and the possibility, as well as the desirability, of living an independent life. Resorting to romantic visions of the family and simplistic applications of an outmoded work ethic without other reforms will not address the significant problems in today’s society.

Continue reading Dependencies

by Martha Albertson Fineman

Contemporary Western systems of law and justice reflect a preference for liberty and autonomy. An independent and fully-functioning adult constitutes the “idealized ordinary” or paradigmatic subject­ – the being whose professed capabilities, aspirations, and needs guide the generation of policy and law.

This legal subject is one among equals, inhabiting a world that valorizes personal, not societal responsibility. State intervention or regulation is perceived as a violation of liberty. Social arrangements and institutions, such as family and corporation, are deemed “private,” even though they have significant implications for the well-being of society and for children and those not self-sufficient. Suggestions for public supervision are easily deflected by ideological constructs, such as family privacy, meritocracy and free markets.

Vulnerability theory rejects this static deficient misrepresentation of what it means to be human, arguing for the recognition of a legal subject reflecting the complex and varied lives actually lived by human beings. The concept of the “vulnerable subject” recognizes that human beings are  first and foremost embodied beings who are inherently, universally, and constantly “vulnerable.” The term vulnerable is used to reflect the reality that throughout the life-course we are constantly susceptible to changes in our bodily or physical well-being. Changes in embodiment can be developmental, evolving as we move from birth to death. Such changes can be negative and located in our mortality, or positive, reflecting our growth and increasing capacity. Changes in bodily well-being often result from circumstances over which individuals have little or no control: accident, illness, or catastrophe (naturally occurring or humanly provoked). We must therefore understand vulnerability as the human condition­ not just a characteristic of some particularly or uniquely weak or disadvantaged individuals.

It is the second assertion of a vulnerability approach that is particularly significant to the claim that there cannot be an “I” without the “We.” Because there is no position of invulnerability and we are born, live, and die within a fragile materiality, we are also of inevitably embedded beings. Individual and collective vulnerability must be compensated for, accommodated, or mitigated if human beings are to survive, which leads us to form social relationships and institutions ranging from the family to the nation state and beyond. In other words, a functioning and responsive social unit is the only (although only partial) antidote for human vulnerability. Embodiment forces us into relationships of dependency on others, be those other individuals or institutions. This inescapable reliance is most evident in childhood when we are dependent on others for care. But the prospect of dependence may also attach to aging, disability, or illness.

Our dependence does not end with the intermittent need for care, however. Throughout the life­ course we are dependent on social relationships and institutions to provide us with resilience. Resilience allows us to weather inevitable change; not only to survive, but thrive in the face of our vulnerability. Importantly, no one is born resilient.  Rather, resilience is produced over time and within and through social institutions and relationships. Nor is it distributed consistently across society. Individuals are more or less resilient in relation to the material, social, human capital, relational and existential assets and advantages they have accumulated. This inequality should turn everyone’s attention to how existing social arrangements are functioning.

While lack of resilience is typically attributed to individual failings under a regime of individual responsibility, vulnerability theory focuses on the functioning of social institutions. When established equitably and functioning fairly such social arrangements can and do respond to, mediate, compensate, and mitigate vulnerability. But that is not always the case. As human creations, social arrangements are also, although differently, vulnerable. Institutions can be corrupted and captured, as well as decline and decay. They can cause harm and create situations that exacerbate or exploit human vulnerability.

Social relationships contained within these institutions are often unequal in terms of power and privilege. We recognize this to some extent when we make laws against discrimination based on certain identity characteristics, such as race or gender. But vulnerability is universal and its implications transcend traditional identity categories. It is our social identities – those of employer/employee, parent/child, creditor/debtor – that must be brought under consideration and changed when inequitable.

Societal relationships and institutions are shaped, reinforced, and modified in and through law. There is no such thing as an inactive or noninterventionist state. The question is in whose interest its relationships and institutions are fashioned. A vulnerability approach insists the answer to that question must be the vulnerable subject and that, at a minimum, the state should bear responsibility to ensure that relationships and institutions are justly structured and fairly functioning. Vulnerability theory thus provides a heuristic device for raising questions currently overlooked in order to advance a social justice model applicable to all individuals.

This weekend, we held a workshop celebrating the legacy of The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies at 25 years.  Here are some photos from the event:

by Martha Albertson Fineman

“This essay is a consideration of the feminist project in law and two contemporary legal feminist approaches to the historical construction of women as “different”– a characterization that has had implications in regard to the way in which women are understood as objects and subjects of law. These competing feminist responses are based on similar conclusions about women’s uneasy relationship to law as well as to other institutions of power in our society. They differ, however, in their analyses of the nature and extent of the difference between women and men and the conceptual and theoretical implications of differences.

Until fairly recently, legal feminism was primarily an equality-based
strategy, which assumed no legally relevant differences between men and women. This emphasis was perhaps determined by the many ways in which the law historically both facilitated and condoned women’s exclusion from the public (therefore, overtly powerful) aspects of society. Difference was the rationale and the justification for this exclusion which was based on the belief that women’s unique biological role demanded their protection from the rigors of public life. It was no surprise, therefore, that when significant numbers of women began to make inroads into public institutions such as the law, they sought to dismantle the ideology which had excluded them-assimilation became the goal and equality the articulated standard.

Recently, some feminists have called attention to the fact that “equality” tends to be translated as “sameness of treatment” in American legal culture and, for that reason, actually operates as a conceptual obstacle to the formulation and implementation of solutions to the unique economic and societal problems women encounter.’ These “post-egalitarian feminists” urge a reconsideration and reconstruction of differences-this time from a feminist perspective. Those feminists who now want to move beyond equality and establish affirmative theories of difference recognize that initial adherence to an equality concept was necessary in taking the first steps to change the law and legal institutions. The lesson some of us have learned from the results of the past several decades of equality feminism, however, is that a theory of difference is necessary in order to do more than merely open the doors to institutions designed with men in mind. Arguing for a theory of difference questions the presumed neutrality of institutions, calling into question their legitimacy because they are reflective of primarily male experiences and concerns. In that way, a theory of difference has the potential to empower women.
Continue reading Feminist Theory in Law: The Difference It Makes

by Martha Albertson Fineman