Author: Mangala Kanayson

by Camilla S. Jydebjerg

#agovernmentinmyname?

The hashtag #notinmyname is widely used on social media as a way to show discontent with current politics as well as to distance oneself from them. In Denmark (where I live) I have recently seen people use it to distance themselves from the government’s politics concerning refugees, especially the decision to consider areas of Syria safe. This decision has led to the suspension of the residence permits of a number of Syrian refugees. These suspensions of residence permits have been perpetuated despite international critique.

I understand the hashtag #notinmyname and I share the need to distance myself from a government that acts in ways that are thoroughly and utterly disconnected from my morals and worldviews. The question I want to broach here is if that is possible. Is it possible to distance oneself from the government or should the hashtag read #thisishappeninginmyname. After all the cornerstone of a representative democracy is that the politicians are the representatives of the people acting on our behalf. Lately, I have been pondering how we can think about government and representative democracy and indeed if the ideals of these institutions still hold through. These thoughts are inspired by my current visiting scholarship at the Vulnerability and the Human Condition Initiative at Emory University.

As part of this visiting scholarship, I have been fortunate enough to be able to participate in the classes held by Professor Martha Fineman and Postdoctoral Fellow Jennifer Hickey. In these classes the topic of government and trust in government has been debated in different ways often in connection to a seemingly growing political polarization of society and a failing  of trust in government. According to the Pew Research Center only “20% of U.S. adults say they trust the government in Washington to ‘do the right thing’ just about always or most of the time.” OECD numbers show the same trend. Furthermore, 67 percent believe that most politicians are corrupt. These are shocking numbers revealing a state of government considered neither for nor by the people. This is not just an American problem as numbers across national borders point to lack of trust in national governments and a wish for a change in political systems.

Trust in the national government seems to run quite a lot higher in Denmark (76,6 percent of the Danes answer yes to having confidence in National Government in the 2020 OECD numbers). However, as the above-mentioned hashtag shows there are also feelings of discontent and distance between the Danish government and at least some of its people (e.g., me). The Danish Governments handling of COVID-19 has in general been commended as the numbers have been kept down and a third wave seem to be avoided. However, the response has not only been cause for celebration and in particular a decision to kill all mink to inhibit the possibility of transmission of disease from mink “seems to have accelerated the growth of both pro-government and anti-government groups on Facebook, indicating a polarization within the Danish population regarding trust in the government and the political handling of the COVID-19 crisis” (Kristensen 2020).

Even though the philosophy of national government can be criticized for its roots in colonialism, privilege blindness, and institutionalized oppression, it can still be argued that lack of trust in government and political polarization are problematic in many ways e.g., it might lead to falling voter turnout, political apathy and make political problem-solving harder. OECD research shows that trust in government is closely tied to the government’s will and ability to provide public services as well as to anticipate change, protect its citizens and to improve living conditions for all. The idea of government thus seems to be tied to the governments ability to protect us from harm and misfortune. This is very much in line with vulnerability theory’s call for a (more) responsive state. This call rests on the theory’s understanding of the human legal subject as always, and inherently vulnerable. Vulnerability is a constant condition of human life because all living “embodied beings” are “susceptible to change and alteration” (Fineman, 2017, p.4). It is the very nature of human vulnerability that forms the basis for a claim that the state must be actively responsive to human vulnerability and dependency (Fineman 2010 & 2019).

Vulnerability theory asks of us that “we imagine responsive structures whereby state involvement actually empowers a vulnerable subject by addressing existing inequalities of circumstances that result from undue privilege or institutional advantage” (Fineman 2010, p. 40). This is both a refusal of the idea of the restrained state as a societal ideal and a potent reminder that there is no such thing as an inactive or unresponsive state. All the actions of a State are a response to someone. Societal institutions, laws and politics are always responsive and responding to someone (Fineman 2018). The question then becomes to whom they are responding and who should we hold accountable if we feel disfranchised, despondent, and not represented. The numbers quoted above show that we need to start imagining a responsive state, that we need to start discussing what kind of state we want and what kind of governments. How does a responsive state look and how do we hold it accountable? Let us start the discussion so that we can get the government that we deserve to act in our name.

by Jennifer Hickey

Image via Pixabay

“Many of our problems in US maternity care stem from the fact that we leave no room for recognizing when nature is smarter than we are.”

― Ina May Gaskin, Birth Matters: A Midwife’s Manifesta

INTRODUCTION

“The United States  was recently dubbed “the most dangerous place in the developed world to give birth.” Over seven hundred pregnant women or new mothers die in the United States each year. Infants are dying at an alarming rate as well. Our shockingly high and ever-increasing rate of maternal mortality, particularly among Black women, has garnered significant national attention. Further, many women experience mistreatment at the hands of their health care providers, including the imposition of unnecessary or unwanted medical interventions during birth. Aside from causing emotional and physical trauma, such interventions have been directly linked to increased maternal mortality.

Continue reading Nature Is Smarter Than We Are: Midwifery and the Responsive State

by Tanya Krupiy

“Erica Curtis, a former admissions evaluator at Brown University in the United States, has noted that she evaluated each student’s application consisting of standardised test scores, the transcript, the personal statement, and multiple supplemental essays within a twelve-minute timeframe.¹ Arguably, this is a very short period of time within which an admissions officer can evaluate the applicant’s personality and academic qualities holistically.² The time constraints create a possibility that the admissions officer may fail to detect the applicants’ capabilities or how societal barriers diminished their ability to realise their potential. Another concern with human decision-making is that the decision-maker officer may act arbitrarily in the course of exercising discretion³ by putting different weight on comparable attributes that cannot be measured.

Continue reading A Vulnerability Analysis: Theorising the Impact of Artificial Intelligence Decision-Making Processes on Individuals, Society and Human Diversity from a Social Justice Perspective

by Martha Albertson Fineman

ABSTRACT

“The societal frame of the “economically disadvantaged” is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it.

I. INTRODUCTION

The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the significance of the human being and a belief in their fundamental parity under law that also asserts the inherent value of individual liberty and autonomy, and thus is skeptical of state intervention into the “private” sphere of life.

Continue reading Beyond Equality and Discrimination

by Martha LA Fineman

“Twenty-five years ago, shortly after my own successful, but nonetheless harrowing bid for tenure, I began the Feminism and Legal Theory Project (FLT) at the University of Wisconsin. The explicit purpose was to provide a supportive and encouraging environment for scholars interested in  doing  feminist  theory  work. Early workshop sessions were in the summers, often lasting a week or more. They were organized around topics or themes, such as differences and motherhood.

The women and men who came to those early sessions were searching for a way to reconcile growing critical and feminist sensibilities with the study and teaching of law as we had experienced it as students and beginning professors.  A handful of Women and the Law courses had been created and were being taught at that time, but there were very few women law professors and the word “feminist” was fairly new to law schools.

Continue reading Transcending the Boundaries of Law: Generations of Feminism and Legal Theory – Introduction

Introduction by Martha L.A. Fineman

“Since the late 1960s and with ever increasing momentum, law has come under the influence of economic theory and methodology.  Although considered a specific school of thought within American legal jurisprudence, Law and Economics and the neoclassical economic model on which it is based, have permeated legal analysis in a wide range of areas, considered useful in the development of rules of universal application for law and policy making.

In response to the increasingly accepted notion that economic principles are and should be the primary lens through which legal and policy decisions are made, this volume was conceived in order to bring together essays that are critical of the Law and Economics school of thought, as well as of the neoclassical economic model more generally.  The essays collected in this volume present a variety of legal and nonlegal perspectives and come from a variety of disciplines.  All the authors are generally concerned with the implications of the wholesale incorporation of an economic model into law and policy making.  Although there are many avenues through which one can form a critique of Law and Economics and neoclassical economics other than the critique developed out of an analysis of gender, the essays in this volume primarily bring feminist perspectives to bear on homo economicus, either rejecting economic analysis within the law altogether or, alternatively, using economic analysis in a manner that challenges the gendered power dynamic within the law.

Continue reading Feminism Confronts Homo Economicus

Introduction by Martha Albertson Fineman

“This collection of chapters investigates the ways in which emerging masculinities theories in law could inform feminist legal theory in particular and law in general. Masculinities theories generally explore relationships of subordination between different men and how those relationships rebound in the subordination of women. A central theme of masculinities studies has been the construction of idealized and societally praised forms of masculinity. In addition to devaluing women and ‘non-masculine’ men, such hegemonic modes of masculinity serve to create a general sense of anxiety among men as to whether they can live up to the hyper-gendered standards.

Continue reading Exploring Masculinities : Feminist Legal Theory Reflections – Introduction

Introduction by Martha Albertson Fineman

“This anthology focuses on the vigorous and sometimes contentious debates between and among feminist and queer legal theorists, bringing into direct dialogue many of the key players in this ongoing set of “uncomfortable conversations.” Many  of the chapters speak directly to one another, debating not only important issues such as intimacy, privacy, sex harassment, and political strategy, but also the very conceptualization of feminism and queer theory. Cumulatively, the chapters pursue the shifting complexities and difficult questions feminist and queer legal theories consider as well as produce. This anthology also maps the different approaches to the concepts of sex and gender that have been articulated over the past decades by feminist and queer theorists. In particular, it explores evolving and contested assertions about the centrality of a positive theory of sexuality to the formulation of critical perspectives on legal, social, political, and cultural institutions.

Continue reading Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations – Introduction

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