“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
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 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.” 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.” 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. Within one year deforestation caused the loss of an area equivalent to nearly one million football pitches. This environmental catastrophe – destroying rainforest ecosystems, debilitating indigenous communities, and contributing to climate change – seems to be the result of systematic state-corporate crime.
Abstract “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
Abstract: 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
“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?
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
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.
“What, if anything, does the designation of “social” add to the ideal of justice? The phrase “social justice” is a rallying cry in progressive circles, perhaps because justice unmodified seemingly fails to convey the magnitude of the underlying demand for change. However, the meaning of the term is not particularly clear, nor is it used in a consistent manner. This Article briefly considers the origins of the term social justice and its evolution beside our understandings of human rights and liberalism, which are two other significant justice categories. After this reflection on the contemporary meaning of social justice, I suggest that vulnerability theory, which seeks to replace the rational man of liberal legal thought with the vulnerable subject, should be used to define the contours of the term. Recognition of fundamental, universal, and perpetual human vulnerability reveals the fallacies inherent in the ideals of autonomy, independence, and individual responsibility that have supplanted an appreciation of the social. I suggest that we need to develop a robust language of state or collective responsibility, one that recognizes that social justice is realized through the legal creation and maintenance of just social institutions and relationships.
Our latest episode of Voices in Vulnerability features an interview with Visiting Scholar, Dr. S.N. Nyeck. Dr. Nyeck is an international scholar known primarily for her work on gender and sexuality politics in Africa. Her current research delves into the history and impact of government contracting from ‘colonial’ times to the present. In our interview, Dr. Nyeck asks, “What is the future of democracy when governance is done by contracts?”
“This article compares the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense – as a nondiscrimination mandate – and equality in its broader, substantive sense – as establishing a positive right to access the social goods or resources necessary to sustain equally valued individuals. The article ultimately argues that the foundational difference between the manner in which equality is understood in the United States and how it is understood in much of the rest of the world arises from the recognition and acceptance in other countries that human need and vulnerability are not only an individual responsibility but also a state responsibility.
The U.S. Constitution is ancient by international standards, and it embodies and idealizes an antiquated political-legal subject and a restricted sense of state responsibility that is unrealistic for defining the appropriate legal relationships that exist between the modern state, the lives of individuals, and the operation of complex societal institutions. Clinging to the idea of a “liberal” constitutional or political legal subject that was prevalent when the U.S. Constitution was drafted has impeded the evolution of a concept of equality that would complement our developing understanding of what is necessary in terms of state responsibility to ensure that all people are treated as “created equal.” This article concludes by offering the concept of the “vulnerable subject” as a more viable and appropriate figure around which to build contemporary policy and law and suggesting some measures legislatures and courts could take to build a more responsive and responsible state that would function to ensure meaningful equality of access and opportunity. “