Author: Mangala Kanayson

by S.N. Nyeck

Procuring Along the Equality Grain

“To address the annoyances and questions that gender raises and the policy trajectories that this category brings to global public procurement reform, one needs not confine innovation to the margins. This is to say that conversing with the idea of equality in a more substantive way might provide us with better tools for discussing gender in public procurement without limiting the frame to discrimination only or to the traditional equal opportunity analysis. This is an invitation to consider alternative values and policy venues in probing the size and texture of the equality grain as perhaps of better nutritional value than the mere bringing in of discrimination sheaves in the procurement field. Assuming such a consideration is agreed upon, it becomes useful to ask, what is the subject of “gender” that brings a substantive (not just formal, procedural, or opportune) vision to equality in public procurement? This subject is, it is contended, the “vulnerable subject.” Moreover, considerations for a substantive approach to gender equality must argue for valuing states’ self-constitutive (Korsgaard 2009) functions and actions in an age of complex global governance arrangements. Hence the vision of a “vulnerable subject” as the center agent of a reformed vision of gender equality in public procurement is necessarily intertwined with concerns about the future of democratic (Freeman and Minow 2009), responsive and responsible governance (Poh and Stumpf 2005; Chooner and Greenspahn 2008). It therefore follows that “the vision of the state that would emerge in such an engagement would be both more responsive and responsible” (Fineman 2009, 2 My emphasis).

Continue reading Gender Equality in Public Procurement

by Martha Albertson Fineman

Understanding Vulnerability Theory

Vulnerability theory challenges the dominant conception of the universal legal subject as an autonomous, independent and fully-functioning adult. Rather than building our systems of law and justice upon this static figment of the liberal imagination, vulnerability theory argues for a socially and materially dynamic vulnerable legal subject, based on a richer account of how actual peoples’ lives are shaped by an inherent and constant state of vulnerability across the life-course. Human beings are embodied creatures who are inexorably embedded in social relationships and institutions. There should be political and legal implications for the fact that we live within a fragile materiality that renders us constantly susceptible to change, both positive and negative, in our bodily and our social circumstances. Sometimes bodily vulnerability is realized in the form of dependency on others for care, cooperation, or assistance.  Sometimes it is realized in our dependency on social arrangements, such as the family or the market and economy.  But, whether realized or latent, vulnerability is universal and constant – an essential and inexorable aspect of the human condition.

Continue reading What Vulnerability Theory Is and Is Not

by Janet Delgado

Abstract

“The goal of this paper is to propose a relational turn in healthcare professionalism, to improve the responsiveness of both healthcare professionals and organizations towards care of patients, but also professionals. To this end, it is important to stress the way in which difficult situations and vulnerability faced by professionals can have an impact on their performance of work. This article pursues two objectives. First, I focus on understanding and making visible shared vulnerability that arises in clinical settings from a triple perspective: patient and family, health professionals, and institutions. Second, to address this challenge for professionalism, in this paper I articulate the term “relational centered-patient professionalism”, which has two main axes. The relational approach means taking into account how the relationships among professionals, patients and institutions determine the constitution and evolution of those professional values. The focus on patient centered care is indispensable, because it is the ultimate goal pursued by the development of these professional values, and must always be at the center.”

Read more here.

Delgado, J. Vulnerability as a key concept in relational patient- centered professionalism. Med Health Care and Philos (2021). https://doi.org/10.1007/s11019-020-09995-8

by Martha Albertson Fineman

In western political traditions, the idea of political (and legal) subjectivity places the individual in relationship to the state and its institutions, with the understanding of the terms of the social contract defining the quality and nature of that relationship. Specific conceptualizations of the political subject will affect the status of everyone in society, although not everyone may be considered a fully realized and legally capable subject. For example, at the formation of American democracy (and within its foundational documents), fully realized political subjectivity was limited to white, male, property-owning or tax-paying individuals of a certain age and religion, who were also “free.” Over the course of the nineteenth and twentieth centuries, certain of these qualifiers were removed and full political subjectivity was recognized for members of previously excluded groups. However, the expansion of the membership of the population granted full political subjectivity did not automatically transform the perceived nature or assumed capabilities of the political subject. Indeed, the inclusion of those previously excluded was based on the assertion that there were no relevant differences between them and the original political subject. The mode of inclusion was assimilation, underscored by the application of a principle of formal equality.

The implications of this exclusion and eventual assimilation of women and significant numbers of previously excluded men are significant. While the contemporary race- and gender-neutral political subject may look different than the original, many aspects of the constitutional relationship between the political subject and the state remain similar to those developed hundreds of years ago. Importantly, the historic political subject was not only white, male, and propertied, but phenomenologically deemed to possess idealized qualities and characteristics derived from the aspirations, experiences, and perceived capabilities of the members of that limited and unrepresentative group. The experiences and perceptions of those previously excluded were, in many ways, significantly different from that narrowly defined subject, and potentially incompatible with the norms and values underlying the original organization of state and individual responsibilities. The contemporary political subject incorporates only some of the host of possible variations in human characteristics, experiences, and capabilities: he is a fully functioning adult who is independent and self-sufficient, fully capable of taking care of his own needs and the needs of those dependent upon him. This political construct is theoretically inadequate, incapable of fully (or fairly) informing the development of political and legal norms to address many of the situations and circumstances that occur over the life course of most actual individuals. It is certainly inadequate to support a robust sense of social justice.

Continue reading Writing Vulnerability into the Social Contract

by Lua K. Yuille

“The pages that follow advance a simple central proposition: Local governments should pay gang members to refrain from gang activity. But the deeper story this article tells is more complex, with implications far beyond the relatively confined world of the contemporary American street gang inhabited by an estimated 850,000 members. That more complex story is of the universal human condition of vulnerability, the instinct and imperative to build mechanisms to confront that vulnerability, and of property’s important role in that task.

The surface story of this article offers a provocative and unexpected approach to what is framed as a growing national, regional, and local gang threat. More predictable, is the response of local governments and law enforcement agencies, which have developed creative initiatives to disrupt and dismantle the reported 33,000 gangs across the country. Most of this experimentation has focused on variations on traditional policing, like the creation of specialized “gang units” within police departments and targeted heightened surveillance operations against gang leaders. However, in the 1980s and 1990s, political actors also turned to civil legal mechanisms to combat what continues to be framed as the growing, intractable menace of the corporatized, terroristic, criminal street gang.

Continue reading Manufacturing Resilience on the Margins: Street Gangs, Property, & Vulnerability Theory

An excerpt from “Vulnerability and Power in the Age of the Anthropocene” by Angela P. Harris

“In a paper published in 2011, a group of scientists led by Will Steffen presented evidence of what they called “The Great Acceleration:” a sudden intensification of the impact of human activity on the global environment. Taking the measure of diverse human phenomena, from human population and fertilizer consumption to the number of McDonald’s restaurants worldwide, the authors generated a series of charts. Each chart featured a curve sloping steeply upward, beginning around 1945. Extreme environmental change on planet Earth is nothing new. As J.R. McNeill points out in his environmental history of the twentieth-century world, “[a]steroids and volcanoes, among other astronomical and geological forces, have probably produced more radical environmental changes than we have yet witnessed in our time.” Nor is human impact on the biosphere unprecedented. As beings embedded in biological systems, humans have always affected the fortunes of plant and animal species around us (and within us, as we will see), and these impacts increased as humans began farming, building cities, and domesticating other animals. However, since the dawn of the Industrial Age the scale of human intervention in human and trans-human planetary systems has grown dramatically. McNeill explains that the transition from reliance on human and animal power to reliance on fossil fuels made possible an extraordinary growth in energy use:

We have probably deployed more energy since
1900, than in all of human history before 1900.
My very rough calculation suggests that the
world in the twentieth century used 10 times as
much energy as in the thousand years before
1900 A.D. In the 100 centuries between the dawn
of agriculture and 1900, people used only about
two-thirds as much energy as in the twentieth
century.

Continue reading Vulnerability and Power in the Age of the Anthropocene

by Michael Thomson

“INTRODUCTION

Standard accounts of the emergence of bioethics are typically anchored in the progressive politics of the sixties. In these narratives, bioethics is cast as a response to the Nuremberg trials and a series of abuses committed in the name of research in the decades that followed. These originary tales position bioethics alongside the civil rights movement. It is a counter-cultural force protecting the rights of individuals, checking the excesses of (some) researchers, and an increasingly technological, commercial, and industrialized health system. As the bioethicist and historian Albert Jonsen argued, early bioethicists were “pioneers” who “blazed trails into a field of study that was unexplored and built conceptual roads through unprecedented problems.” The pioneers “radically change[d] the practice of scientific research in America.” Since these early days, bioethics has grown to attain a particular place in the governance of science and technology. It has “spawned a new profession and seeded novel social institutions.” It acts directly through structural requirements for ethical review, as well as indirectly through the ways in which bioethics has come to shape public deliberation. It has also influenced processes of legal reasoning and governance, with law becoming increasingly undifferentiated from bioethics and both “seen as normative modes that can preempt and control biomedicine.” As José López concluded over a decade ago, “In little over 30 years, bioethics has managed to position itself as a key node through which a variety of social, political and scientific activities are refracted.”

Continue reading Bioethics & Vulnerability: Recasting the Objects of Ethical Concern

Vulnerability theory identifies the human condition as one of universal and constant vulnerability. That vulnerability is managed and mediated through the creation of social institutions and relationships. As part of the state mechanism for distributing social goods and ensuring society’s welfare, those institutions ultimately can and should be judged by how responsive they are to human vulnerability.

This workshop seeks to look at the status of workers in a corporate system, considering how corporations have changed from grudgingly addressing human vulnerability within a capitalist scheme of wage labor, to increasing rejection of the very idea that human vulnerability should be a matter of corporate concern.

In the middle of the twentieth century, corporate America oversaw a “family wage system” that promised secure employment with benefits to a large swath of white men. Within this patriarchal system, the “organization man” saw his future as tied to the success of his company, while corporate leaders saw the health of their organizations linked to the fate of the country. Provisions for old age, family dependents, illness, and injury were part of a comprehensive system that united corporate and workers’ interests, while also recognizing the significance of societal institutions, such as the family. By contrast, today, the characterization of the corporation as solely an instrument to advance private ends permits corporate leaders to ignore workers’ increased insecurity, often at the expense of other stakeholders and even the corporation itself. The result creates artificially competitive cultures that increase societal inequality and instability, reduce diversity, and undermine efforts to make employment more responsive to individual worker’s, as well as societal needs.

We intend this workshop to cover an array of topics that center on the legal and ideological or conceptual “evolution” of the corporation in relation to its legitimizing societal role in responding to human vulnerability. We welcome the participation of scholars working in law and related disciplines, including economics, community development, history, political science, sociology, and social psychology.

Click here for workshop and submission details.

by Dr. Atieno Mboya

Definitions

“Gender equality means ensuring equal opportunities for women and men and equitably valuing the contributions of both.

Empowerment of women through law refers to women using the legal system to secure their goals for equality, agency, and equal opportunities and income with men.

Introduction

The United Nations’ Sustainable Development Goal 5 on achieving gender equality and empowering women and girls reiterates the unfinished, universal struggle for women’s rights around the world. The Goal calls for:

(i) Increased women’s leadership and
participation in governance

(ii) Strengthened women’s economic
empowerment

(iii) Increased protection of women against gender-
based violence and access to justice for
women (Sustainable Development Goals
Knowledge Platform 2019)

The feminist movement, which advocates for women’s social, political, legal, and economic rights, equal to those of men, continues to be the catalyst for women’s fight for gender equality. The objective of increasing women’s leadership and participation in governance is a liberal feminist approach to gender equality, which aims to integrate women into existing power structures. As of 2020, a long road remains to be traversed in this regard, with, for example, only 20 countries having female Heads of Government (UNWomen 2020b). The second objective, strengthening women’s economic empowerment, when operationalized, increases women’s life choices and agency because of the greater economic independence they have. And the third objective, protecting women from gender-based violence and ensuring they have access to justice, aims to realize and protect women’s fundamental human rights to life, dignity, and freedom from violence. These objectives and the overall global goal of achieving gender equality are embedded in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the national laws of states that have ratified the Convention. CEDAW is an international agreement that lists the rights of all girls and women concerning achieving equality between girls/women and boys/men (CEDAW 1979).

This entry will survey the relationship between women and the law in the context of the struggle for gender equality. It will examine how women have been defined as legal subjects over time and traditional legal restrictions that have been upheld against women, using examples drawn primarily from the United States, where there is a robust legal trail for dismantling those restrictions and advancing women’s rights. Victories that women in the United States have won have had reverberating impacts in other parts of the world, surveying the American women’s rights experience relevant to the global women’s movement, which is today reflected in the Sustainable Development Goals. The entry will explore constitutional and legislative doctrines that evolved to remove the oppression of women, tracking how the feminist movement has pushed for these victories, which have in turn fueled the movement towards overcoming legal obstacles and setbacks that women have faced.”

 

Mboya A. (2020) Empowering Women Through the Law. In: Leal Filho W., Azul A.M., Brandli L., Lange Salvia A., Wall T. (eds) Gender Equality. Encyclopedia of the UN Sustainable Development Goals. Springer, Cham.

Read the rest here: https://doi.org/10.1007/978-3-319-70060-1_146-1

by Deborah Dinner

Illustration by Martha A. Fineman

“Take a closer look at a physical copy of Martha Albertson Fineman’s recent book series and you will notice that the cover art is a print of one of Martha’s own etchings. The print shows two faces, one staring intently at the viewer and the other looking to the side. The faces are not isolated; rather, they are connected by intersecting and overlapping spherical lines. Trees and leaves encircle and, perhaps, protect the faces. For me, the emotions evoked by the etchings include curiosity, warmth, forthrightness, creativity, and an awareness of relationship to other people and to the environment. Martha possesses these qualities, as a scholar and colleague. As an artistic medium, furthermore, etchings draw viewers’ attention to negative spaces as well as positive lines. This is the quality of Martha’s scholarship that is, for me, most inspiring and generative. Martha has a knack for rendering visible the negative spaces—the dimensions of law and social life that others are missing.

Over the last decade, Professor Fineman has turned her attention to one such negative space: vulnerability in the human condition. In 2008, she published The Vulnerable Subject: Anchoring Equality in the Human Condition. This essay, since cited by more than 150 law-review articles and countless book chapters, presented Fineman’s critique of the limits of antidiscrimination law and argued that recognition of universal human vulnerability should serve as the ethical foundation for a more responsive state. In the last decade, vulnerability theory has evolved considerably, but I will start my remarks with a brief overview of this landmark essay.

Fineman’s piece starts with a familiar critique: that the formal conception of equality in U.S. antidiscrimination law—same treatment for similarly situated individuals—has proved wholly inadequate either to challenge structures of subordination or to remedy socioeconomic inequality. She draws attention to the way in which the rhetorical prominence of antidiscrimination, as our legal culture’s dominant frame for justice and injustice, reinforces the perceived legitimacy of a restrained state. Putting a twist on our understanding of the public–private divide, she argues that the contemporary state has not withered. Rather, the state refrains from using its formidable coercive authority to guarantee substantive equality.

The essay then proceeds to chart wholly new territory in legal scholarship: universal and constant human vulnerability. Of crucial importance, Fineman departs from the popular conception of vulnerability as signaling the “victimhood, deprivation, dependency, or pathology” of particular groups. Rather, the essay advances the radical notion that vulnerability is a universal and constant aspect of the condition. Vulnerability, she explains, “should be understood as arising from our embodiment,” which carries with it the capacity for “harm, injury, and misfortune… whether accidental, intentional, or otherwise.” Vulnerability also stems from individuals’ differential location in social, economic, and political institutions. For this reason, while vulnerability is universal, Fineman reasons, its manifestations in specific individuals’ experiences are particular and varying.

In my own view, Fineman’s thoughts about the simultaneous universality and particularity of vulnerability offer fruitful terrain for further scholarship. Scholars may explore the points of overlap and departure between Fineman’s theory and critical-race and feminist theories. The latter view vulnerability as institutionally produced and, generally, challenge universalist theories as insufficiently attentive to the construction and deployment of power. It seems that these two approaches to vulnerability may be compatible—a view that should not be surprising given the long and profound role Fineman has played in the development of critical theory within the legal academy. Existential vulnerability, if understood as particular in its manifestation, may support theoretical insights into the institutional production of vulnerability. Fineman and critical theorists of vulnerability similarly highlight the ways in which both state and civic society institutions construct privilege and disadvantage. Indeed, Fineman herself argues that it is not identity traits, themselves, that produce inequality. Rather, “systems of power and privilege . . . interact to produce webs of advantages and disadvantages.”

Fineman’s project, however, is ultimately constructive rather than critical. In keeping with her laudable pragmatism, Fineman’s theory calls for a responsive state that promotes both human and institutional resilience. Vulnerability theory argues that the state has a responsibility to promote resilience by facilitating the just distribution of physical assets such as material resources, human assets such as education and health care, and social assets such as strong, functional families and communities. For the purposes of this Essay, however, I will focus on the concept of human vulnerability rather than its cognate—resilience.

Even at this early stage, the reader might wonder: why does the author, whose primary intellectual identity lies within the field of legal history, find this particular piece of legal theory so compelling? Here is the answer: Fineman’s theory is of considerable interest to legal historians because it is fundamentally concerned with how we should re-theorize law given the inevitability of change over time. I take the occasion of this tribute issue honoring Martha Albertson Fineman’s oeuvre to outline some ideas about the significance of vulnerability theory as a category of analysis in legal history. To begin, vulnerability theory makes historical analysis critical to law by placing historicalchange (and not just originalist inquiry) at the core of legal analysis. Vulnerability theory draws our attention to the fact that human beings are constantly susceptible to change, both positive and negative, in our bodily, social, and environmental circumstances. Vulnerability theory, therefore, reconceives the universal political–legal subject as dynamic rather than static, materially fragile, and socially interdependent. Vulnerability theory is thus well-suited to legal history because it foregrounds temporality as a means to understand social experience as well as institutional arrangements under law. The theory demonstrates that any theory of social justice must account for change over time.

Even as it demonstrates the relevance of temporality for legal theory, vulnerability theory demands that historians pay greater attention to the persistence of enduring and constant human needs across time. Over the last three decades, critical-race and feminist theory has informed historical scholarship by showing how ideas about identity and difference have structured social–legal institutions. Vulnerability theory, I would argue, challenges historians to examine how history is shaped, too, by what Fineman terms inevitable, biological dependency across the life course as well as the derivative dependency of caregivers. These existential characteristics have provoked varied and shifting institutional and legal responses over time. The question for legal historians is how and why law has constructed and reconstructed the institutional arrangements of dependency. Accordingly, recognition of vulnerability can offer new ways to organize historical periodization and theories of causation.

This Essay uses an illustrative example from my own scholarship to demonstrate the capacity for vulnerability theory to enrich legal history. It analyzes the legal construction and obfuscation of vulnerability in the U.S. “welfare regime”: the public as well as private arrangements that order social provisioning. As a short Essay meant to provoke rather than to answer questions, the piece is necessarily cursory in its treatment of historical causation, controversies, and patterns. First, I outline the relationship between gender and vulnerability in the liberal welfare regime, premised on concepts of feminine vulnerability and masculine independence. Second, I discuss the ways in which the neoliberal welfare regime assumes invulnerability: it valorizes sex neutrality, while reinforcing private responsibility for dependency. Third, I use vulnerability theory to help illuminate a historical path not taken: the transformation of the welfare regime according to the model of the universal, interdependent caregiver rather than the universal, autonomous breadwinner. Throughout this brief exposition, I endeavor to explain how Fineman’s theoretical insights inform my own methodology and analysis as a legal historian.”