Author: Mangala Kanayson

The Social Foundations of Law

by Martha Albertson Fineman

“I. INTRODUCTION
The first few words of the Constitution of the United States capture the idea of the social contract-the legitimacy of government is based on the consent of the people.’ The renewed interest in social contract theory since the 1970s may have been generated by the public diversity of viewpoints and perspectives that began to emerge at the time and that challenged the very idea of “we the people.”
     In the sprawling, secular, contemporary American context, appeals to social cohesion based on religious principles or on shared geographic boundaries are
of limited usefulness. Voluntary participation in societal institutions may generate identification with a group, but this too is limited. As I have noted earlier, “A national identity can be based on acceptance of a shared or common language, culture, or history, but in pluralistic and diverse societies citizens often are fragmented along exactly these lines.” As a result, quite often a unifying myth is fostered and perpetuated as a way to build unity where division might otherwise prevail.

A Workshop on Vulnerability and Corporate Subjectivity – Call for Papers

Vulnerability theory has long been critical of the liberal legal subject and an ideology that privileges consent and contract, manipulating concepts such as choice and autonomy to justify a restrained state. This workshop seeks to explore questions around the legal subject as manifested in its corporate form. The corporation is a legal construct, originally designed to meet social goals. However, throughout the years, and particularly since the rise of neoliberalism in the last decades, it has transformed into an institutional structure that often thwarts human well-being. The recent shift from liberalism to neoliberalism not only re-positioned markets and capital, it also reformulated the idealized legal subject at the center of law and politics. Neoliberal legal subjects—both people and the corporations they form—are reconfigured as “units” of capital that, as such, demand constant investment and management to maximize value. Such units of capital then serve as the mediating institutions through which, according to neoliberalism, social goods are justly allocated and social goals are ideally achieved.

How has this profound shift been accomplished? What role has the perception of the corporation, as a legal construct, played in facilitating such transformation? To what extent have laws and policies been designed to respond to corporate vulnerability or to the need to support corporations by enhancing their resilience? A central tenet of vulnerability theory is that vulnerability is universal – for both natural persons and for legal persons (institutional subjects) created by law and policy. Despite this universality, individual and corporate vulnerability are fundamentally different – individual vulnerability is primary and corporate vulnerability is socially derived. A question can be asked about the ways in which the state chooses to address these universal vulnerabilities – directly, by focusing on individuals’ resilience, or indirectly, but focusing on corporate resilience.

Continue reading A Workshop on Vulnerability and Corporate Subjectivity – Call for Papers

Injury in the Unresponsive State Writing the Vulnerable Subject into Neo-Liberal Legal Culture

by Martha Albertson Fineman

Image via Arek Socha.

“Introduction

This chapter considers the limited ways in which “injury” or harm is understood in American political and legal culture. In particular, I am concerned with the inability of contemporary constitutional or political theory to interpret the failure of collective or state action as constituting harm worthy of recognition and compelling remedial action. Here, I am not focused on laws redressing harm to private individuals and entities caused by other private individuals and entities. These legal harms are defined in areas of private law, such as tort and contract. Nor am I focused on those legal harms addressed by areas of regulatory law, such as criminal or administrative law. Rather, I am interested in the norms and values that inform the principles governing the exercise of action and restraint on the part of the state when it acts as sovereign and in relationship to individuals as political or legal subjects. As reflected in these foundational documents and constitutional jurisprudence of the United States, these principles express a theory or philosophy of what constitutes legitimate state authority.

Continue reading Injury in the Unresponsive State Writing the Vulnerable Subject into Neo-Liberal Legal Culture

Deadline Extended – 1/20/20

The deadline for proposal submissions has been extended to Monday, January 20, 2020.

We are pleased to announce a workshop commemorating the publication of one of Professor Martha Albertson Fineman’s most influential books –The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (1995). Twenty-five years after its publication, The Neutered Mother continues to exert a powerful influence on critical and feminist legal studies, as well as the social sciences and humanities at large. We warmly invite a range of scholarly, pedagogical, critical, and creative responses to this important book, as well as reflections upon how it has shaped work on the family, as well as individual autonomy, dependency, vulnerability and the vulnerable subject.

Continue reading Deadline Extended – 1/20/20

from “The Sexual Family” by Martha Albertson Fineman

Chapter from Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations

Image via Gerd Altmann from Pixabay

“I. STRUCTURING INTIMACY

Core assumptions inherent in our current social and cultural narratives about the family as an institution have tremendous significance in the political and legal definition of the family and, hence, for the fate of mothers. The legal story is that the family has a “natural” form based on the sexual affiliation of a man and woman. The assumption that there is a sexual-natural family is complexly and intricately implicated in discourses other than law, of course. The natural family populates professional and religious texts and defines what is to be considered both ideal and sacred. The pervasiveness of the sexual-family-as-natural imagery qualifies it as a “metanarrative”—a narrative transcending disciplines and crossing social divisions to define and direct discourses. The shared assumption is that the appropriate family is founded on the heterosexual couple—a reproductive, biological pairing that is designated as divinely ordained in religion, crucial in social policy, and a normative imperative in ideology. Continue reading from “The Sexual Family” by Martha Albertson Fineman

‘Elderly’ as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility

by Martha Albertson Fineman

Image by OpenClipart-Vectors

“The vulnerability of our embodied beings and the messy dependency that often comes in the wake of physical or psychological needs cannot be ignored throughout any individual life and must be central to theories about what constitutes a just and responsive state. The concept of vulnerability reflects the fact that we all are born, live, and die within a fragile materiality that renders all of us constantly susceptible to destructive external forces and internal disintegration.

Vulnerability should not be equated with harm any more than age inevitably means loss of capacity. Properly understood, vulnerability is generative and presents opportunities for innovation and growth, as well as creativity and fulfillment. Human beings are vulnerable because as embodied and vulnerable beings, we experience feelings such as love, respect, curiosity, amusement, and desire that make us reach out to others, form relationships, and build institutions. Both the negative and the positive possibilities inherent in vulnerability recognize the inescapable interrelationship and interdependence that mark human existence.

The state and the societal institutions vulnerability brings into existence through law collectively play an important role in creating opportunities and options for addressing human vulnerability. Together and independently institutional systems, such as those of education, finance, and health, provide resources or assets that give individuals resilience in the face of our shared vulnerability. A responsive state must ensure that its institutions provide meaningful access and opportunity to accumulate resources across the life-course and be vigilant that some individuals or groups of individuals are not unduly privileged or disadvantaged. Continue reading ‘Elderly’ as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility

Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency

by Martha Albertson Fineman

Image by PublicDomainPictures from Pixabay

“I. INTRODUCTION
Feminist legal theorists can legitimately complain that most mainstream work fails to take into account institutions of intimacy, such as the family. Discussions that focus on the market, for example, typically treat the family as separate, governed by an independent set of expectations and rules. The family may be viewed as a unit of consumption, even as a unit of production, but it is analytically detachable from the essential structure and functioning of the market.

Similarly, when theoretical focus is turned to the nature and actions of the state, the family (if it is considered at all) is cast as a separate autonomous institution. Of course, the state may explicitly address the family as a site of regulation or policy, but in non-family contexts, the extent of societal reliance on the family is un- or undertheorized.
There is little recognition that policy discussions about economic and social issues implicitly incorporate a certain image of the family, assuming its structure and functioning. Continue reading Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency

What Place for Family Privacy?

by Martha Albertson Fineman

Image by Photo Mix via Pixabay

“I. The Separate Sphere
Society has devised special laws to apply to the family. The unique nature of these rules has been justified by reference to the family’s relational aspects and intimate nature. In fact, “family law” can be thought of as a system of exemptions from the everyday rules that would apply to interactions among people in a non-family context, complemented by the imposition of a set of special family obligations. Family law defines the responsibilities of members toward one another and the claims or rights they have as family members. Family law literature typically focuses on how to use law to redefine, reform, or regulate intra-family dynamics.

But family law does more than confer rights, duties, and obligations
within the family. It also assumes and reflects a certain type of relationship between family and state. During the nineteenth century this relationship was typically cast as one of “separate spheres.”‘ Family (the private sphere) and State (the public sphere) were perceived as largely independent of one another. The metaphor of separation captured an ethic or ideology of family privacy in which state intervention was the exception. Continue reading What Place for Family Privacy?

Vulnerability, Resistance, and LGBT Youth

by Martha Albertson Fineman

Image by Johi Smedberg from Pixabay

“On January 19, 2013, an article written by Michael Schulman in the New York Times highlighted the increasing sexual and gender diversity of students in many universities across the United States. Entitled “Generation LGBTQIA,” Schulman described how the more “traditional” lesbian, gay, bisexual and transgender (LGBT) grouping has been augmented by students seeking new terms and categories to express diverse understandings of sexuality, gender, physical bodies, and evolving identities.

The “Q” in LGBTQIA can refer to questioning—indicating an individual who does not clearly identify with existing categories or who is in the process of exploring their sexual and/or gender identity. “Q” can also indicate “queer,” a term that was re-appropriated and reclaimed by activists in the 1990s and is sometimes used as an all-inclusive umbrella term, as well as referring to an academic perspective of inclusion. “I” indicates “intersexual,” someone whose anatomy is neither male nor female. The addition of “A” can stand for “ally,” indicating a friend of gay rights, and often a person who identifies as heterosexual. “A” can also connote “asexual,” representing those who are celibate or chaste, and perhaps even those who have low libidos.

Schulman also described a student group recently created at the University of Pennsylvania that found even the expansive LGBTQIA grouping inadequate. Focusing on gender variations, the group is called Penn Non-Cis, short for “cisgender,” a term described as denoting someone whose gender identity matches his or her biology.” In the article, bi-gender was used to refer to an individual with both traditional masculine and feminine qualities—the term was seen as more fluid than the designation of transgender, yet less vague than “gender queer.”

This creation of new terms and categories of sexual identity and gender expression is an exciting example of how human beings can intentionally create nurturing social spaces in which to foster community and a sense of belonging. These students are accomplishing this by rejecting existing categories and moving away from static identities. They also seem to recognize that although biology, sex, sexual difference, and gender are different inquiries, to a large extent, they must be studied together and in relation to each other. Continue reading Vulnerability, Resistance, and LGBT Youth