‘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

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

Feminist Legal Theory

by Martha Albertson Fineman


“Twenty years ago the first Feminism and Legal Theory (“FLT”) workshop was held at the University of Wisconsin Law School. Begun initially as a summer program, the FLT Project provided a supportive forum for a variety of scholars from different disciplines who were interested in gender and law. Papers from the early sessions of the FLT workshops became a part of the very first feminist legal theory anthology, At the Boundaries of Law: Feminism and Legal Theory.

In the intervening years a lot has transpired. The FLT Project continues to hold summer sessions, along with workshops and “uncomfortable conversations” each semester. We have moved well beyond, while not totally abandoning, the earlier preoccupation with issues of primary concern to women, such as domestic violence and reproductive freedom. Today, the FLT Project is as invested in its “Corporations and Capitalism” working group as it is in working with scholars who are engaging in path-breaking work on care and dependency.

Of course, when we speak of feminism, it is necessary to clearly state that there are many differences within feminism – difference in approach, emphasis, and objectives – that make sweeping generalizations difficult. Recognizing that there are many divergences in feminist theory, it is nonetheless possible to make
some generalizations. Feminism is not anchored in any one discipline. It presents a theory of gender and challenges the assertions and assumptions of gender-neutrality and objectivity in received disciplinary knowledge. Often credited with inserting the “woman question” into disciplinary dialogue, feminism has broadened and complicated the traditional framework of a variety of disciplines. Because gender is theoretically relevant to almost all human endeavors, it is also relevant to almost all disciplines. Continue reading Feminist Legal Theory

Forest Nativity: Amazon Fires, State-Corporate Crime, Vulnerability

by Rimona Afana, Visiting Scholar, Vulnerability and the Human Condition Initiative, Emory School of Law

Listening to Francis Bebey’s ‘Forest Nativity’ awakens my senses to the lush, pristine, cryptic rainforest. David Attenborough’s tales of the rainforest’s bizarre tiny denizens color my perception of sound. Now, the song instead warns me of smoke and ashes, greed and impunity.


The Amazon is burning. Smoke from the blaze is enveloping nearby cities and can be seen from space. Since the beginning of this year, over 76,000 fires[1] have been documented in Brazil, most of them in the world’s largest rainforest. Amazon Watch notes in a recent report that the “ascension of the extreme right-wing politician Jair Bolsonaro to Brazil’s presidency profoundly exacerbates the country’s environmental and human rights crisis.”[2] Companies operating in the Amazon – linked to illegal deforestation, corruption, slave labor, and other crimes – trading with European and North American partners, are aided and abetted by the Bolsonaro regime, its cabinet members “serving as political operatives for the country’s agribusiness and mining sectors.”[3] The ongoing ecocide in the Amazon is driven by deforestation, often followed by fires to clear areas for agriculture; environmentalists attribute slash-and-burn tactics to cattle ranchers and loggers, emboldened by the state’s pro-business agenda and recklessness on environmental issues.[4] Within one year deforestation caused the loss of an area equivalent to nearly one million football pitches.[5] This environmental catastrophe – destroying rainforest ecosystems, debilitating indigenous communities, and contributing to climate change – seems to be the result of systematic state-corporate crime[6].

Continue reading Forest Nativity: Amazon Fires, State-Corporate Crime, Vulnerability

The Vulnerable Subject and the Responsive State

by Martha Albertson Fineman

Image by skeeze from Pixabay

“Since there is also no U.S. constitutional guarantee to basic social goods, such as housing, education, or health care, the anti-discrimination, sameness-of-treatment approach to equality prevalent in the United States is particularly problematic. The discourse of human rights that supports claims to such goods in European and other countries does not exist in America. We have not ratified many of the international agreements, including those associated with economic rights, as well as CEDAW and CRC. The courts are little help. In fact, attempts to apply human rights ideals internally—to American practices and laws—have been met with resistance, if not outright rejection. Several Justices of the Supreme Court decried references to human rights principles used to bolster arguments about constitutionality under American precedent to be the application of ―foreign fads when (superior) American constitutional provisions should prevail.

My development of the concept of vulnerability and the idea of a vulnerable subject began as a stealthily disguised human rights discourse, fashioned for an American audience. The concept has evolved from those early articulations, and I now think it has some significant differences as an approach, particularly in that a focus on vulnerability is decidedly focused on exploring the nature of the human part, rather than the rights part, of the human rights trope. Importantly, consideration of vulnerability brings societal institutions, in addition to the state and individual, into the discussion and under scrutiny. Vulnerability is posited as the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual. The nature of human vulnerability forms the basis for a claim that the state must be more responsive to that vulnerability and do better at ensuring the ―All-American promise of equality of opportunity. Continue reading The Vulnerable Subject and the Responsive State

Taking Children’s Interests Seriously

by Martha Albertson Fineman

Image by engin akyurt from Pixabay

This is a chapter from What Is Right For Children: The Competing Paradigms of Religion and Human Rights, M.A. Fineman and K. Worthington Eds. (Ashgate 2009). It explores the implications of the fact that schools have become one of the battlegrounds in American culture wars and parental rights are entangled with religious freedom. Children’s independent interest in education and the obligations the state has to children as individuals are overwhelmed in discussions focused on validating parental rights over their children. Religious beliefs are often offered as justification for removing children from secular public schools, allowing parents to place them in private religious academies or home schooling situations. Any policy pertaining to the education of children should require a balancing of interests. As with many other decisions affecting children and families, the rights and responsibilities of parents and the state must be components of any consideration of what is appropriate for children. The problem is that bringing parents and the state into the discussion often diverts attention away from children. This chapter concludes that perhaps the best way to protect a child’s interests regarding education is by mandating universal public education for all children. Continue reading Taking Children’s Interests Seriously

Why Marriage?

by Martha Albertson Fineman

Image via https://pixabay.com/users/qimono-1962238/

“In 1974, when I was a law student in a class called Injunctions, we often struggled through the factual and legal complexities of an opinion determining whether an injunction should issue. My professor, Owen Fiss, was fond of reminding us after each such session that the object of this entire struggle – the injunction – was “only a piece of paper.” His point was that it takes more than the issuance of some form or document to make things happen, to transform the status quo. Words are, after all, only words. Standing alone, they often are not worth much more than the paper upon which they are written. Instead, it is the interpretation and implementation that really matter-not the issuance of the document, but what comes next, that confers content and meaning.

I cannot help but reflect upon this bit of practical-injunction-realism when confronted with the many questions that emerge in response to contemporary policy discussions about the need for laws to strengthen the institution of marriage. Like an injunction, marriage is reducible to a piece of paper-the marriage license. This piece of paper distinguishes one on-going relationship from others, not officially designated marital in nature. Yet what meaning does marriage have beyond this fragile manifestation? Continue reading Why Marriage?

Upcoming Workshop on Vulnerability and the Organization of Academic Labor

Our workshop on Vulnerability and the Organization of Academic Labor will take place next Friday and Saturday at Nottingham Trent University. Interested? You can follow us @VHCInitiative on Twitter or @VulnerabilityAndTheHumanConditionInitiative on Facebook for updates. Information about the workshop from our call for papers is below:

“Vulnerability, which arises from the fact that we are embodied beings, is the universal human condition. While this insight is important to understand how human beings are inevitably embedded within social institutions, such as the workplace and systems of education, the language of vulnerability also allows us to analyse institutional forms of organisation and operation. As human creations, our institutions are vulnerable to capture, corruption, failure and change, which can frustrate or pervert the vital role they play in regard to the wellbeing of individuals and the reproduction of society. This workshop is interested in exploring the intersection of individual and institutional vulnerability in the context of academic labour, with special interest in legal academics, law schools, and the legal profession. We invite participants to interrogate the purpose of legal education in relation to the reproduction of democratic societies, with attention to the complex and interlinked nature of vulnerability in legal education, legal practice, and legal governance. Continue reading Upcoming Workshop on Vulnerability and the Organization of Academic Labor