Vulnerability and the Human Condition

by Martha Albertson Fineman

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

by Martha Albertson Fineman

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

by Martha Albertson Fineman

“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

by Martha Albertson Fineman

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.

Continue reading The Individual in Social and Legal Contexts: There Can Be No “I” Without the “We”

A conversation with Dr. S.N. Nyeck

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?”

Listen to our interview, learn more about Dr. Nyeck, and find her book.

by Martha Fineman

“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. “

See more here.

by Martha Albertson Fineman

“Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative well-being of individuals. As a check on state involvement, our cramped notion of equality limits the state’s ability to affirmatively address economic, political, social, and structural inequalities. As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state. Equality is understood as a mandate for formalized equal treatment; it operates as a nondiscrimination ideal. This ideal minimizes existing structural disadvantages and thus impedes a more substantive approach to equality, which would recognize and accommodate differences and consider outcome as well as treatment. This formal version of equality, while appropriate on some levels and in some contexts, is not sufficiently flexible to address contemporary disparities in political, social, and economic well-being in America. Any distinctions in the treatment of individuals can raise suspicion about government action, and this is particularly true with distinctions involving personal characteristics that are virtually impossible to constitutionally justify, such as race or gender. At the same time, the emphasis on discrimination or difference in the treatment of protected individuals or groups has been viewed as the primary affront to the principle of equality, rather than the widespread (but nondiscriminatory) exclusion from the benefits of American prosperity and technological advancement experienced by those who stand outside as well as inside these protected identity categories. That generalized harm and deprivation is not seen as constituting a legally remedial form of inequality, indicates that an adherence to formal equality has seemingly eclipsed our moral and political aspirations for social justice. In effect, this means that the state and its actors and institutions can legally treat individuals poorly, just as long as they treat them the same.”

Read more here: https://www.law.ua.edu/pubs/lrarticles/Volume%2066/Issue%203/Fineman%20Online.pdf.

by Jennifer Hickey, Esq., Postdoctoral Fellow, Vulnerability and the Human Condition Initiative

A recently published essay, “United by Feelings,” explores the idea that the basic emotional structure of the mind is a biological fact universal to all mammals. The authors reject the “constructionist” view that human emotions are not innate and are merely contextual interpretations of bodily sensations. Constructionists theorize that our minds categorize feelings into emotions that appear instinctual because we do not have conscious access to this mental categorization. For example, if your stomach is churning while you are in a bakery, your brain may perceive this as hunger, while in a hospital waiting room, your brain may label the feeling as worry. The emotion is cognitively constructed based upon the circumstances. In this sense, constructionists believe that emotions are “learned” through cultural experience.

The essay’s authors are proponents of affective science, which offers a different view. They submit that deep emotions are not conceptually constructed. Rather, all mammals share seven primary emotions which evolved to aid survival: fear, lust, care, play, rage, seeking, and panic/grief. These emotions are then filtered through three levels of the mind, which produce subtle distinctions across cultures and individuals. The evolution of the mind is thus a story of how these layers developed and formed a “feedback loop” that is “not strictly a brain process, but an embodied, enactive, embedded, and sociocultural process.”

This affective/emotional approach allows us to fully consider the role and contribution of feelings in perception, thinking, decision-making, and social behavior. Rather than idealizing rational thought and portraying emotions as mere complications that disrupt or corrupt reason, we can begin to examine the true contributions that emotions have made to human achievement. Indeed, the authors point out that the advances of the complex tool industry and the evolution of human family structures could not have happened without parallel advances in the emotional life of man. Continue reading Are Emotions Universal?