Monthly Archives: November 2015

Fineman on Vulnerability and Law

In this provocative and fascinating post, Martha Albertson Fineman, Robert W. Woodruff Professor of Law at Emory University Law School, provides a brief introduction to VULNERABILITY THEORY, an approach she has helped to pioneer both in the U.S. and abroad.  (There is currently burgeoning interest in this approach in Europe, for example.)  For the purposes of New Legal Realism, Vulnerability Theory is a key example of a promising translation point for those interested in working with both social science and legal theory.  Quite frequently, legal theory has operated with the implicit or explicit idea that the core “unit of analysis” is an autonomous rights-bearing individual.  While this model does appear in a number of social science approaches, it is not the only or even the dominant model across all of the social sciences.  Many of the social sciences take the “social” part of their research mission very seriously, and empirical research undertaken with more socially based models tends to shed different light on how law impacts its subjects.  With her bold Vulnerability Theory, Fineman opens a door in legal theory that could permit legal researchers to draw more fully on insights from across the social sciences.  She concludes this piece with a strong series of warnings about “What Vulnerability Theory is NOT”!

Understanding Vulnerability Theory

Western systems of law and justice have inherited a political liberalism that imagines a ‘liberal legal subject’ as the ideal citizen – this subject is an autonomous, independent and fully-functioning adult, who inhabits a world defined by individual, not societal responsibility, where state intervention or regulation is perceived as a violation of his liberty. Social arrangements and institutions with significant effects on everyone lives, such as the family, are deemed “private” and their operation and functioning relegated to ideologies of meritocracy and the free market.   Vulnerability theory challenges the dominance of this static and individualized legal subject, and argues for the recognition of actual human lives as socially and materially dynamic.

Vulnerability theory understands human beings as embodied creatures who are inexorably embedded in social relationships and institutions. By rejecting the limited subjectivity constructed in the liberal imagination, we acknowledge the lived complexity of the ‘vulnerable legal subject’ – a political vision of how the human condition is profoundly shaped by an inherent and constant state of vulnerability across the life-course from birth until death. Incorporating the inevitability of change into the political project of conceiving the legal subject creates a complex subjectivity to guide the way we define individual and state responsibilities. It provides a basis to question and critique current allocations of responsibility for individual and societal wellbeing across the individual and the state and its institutions. Vulnerability theory takes seriously the political and legal implications of the fact that we live within a fragile materiality. We are, all of us, vulnerable. Sometimes our 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 or economy.  But, whether realized or latent, this vulnerability is universal and constant – an essential and inexorable aspect of the human condition.

Importantly, the primary emphasis of vulnerability theory is not our human vulnerability, although the theory begins there. When vulnerability is understood as a universal constant, the task then becomes to explore the strategies by which we can mitigate this vulnerability. Therefore, human beings are not rendered more or less vulnerable because they have certain characteristics or are at various stages in their lives, but do experience the world with differing levels of resilience. The inequality of resilience is at the heart of vulnerability theory because it turns our attention to society and social institutions. No one is born resilient. Rather, resilience is produced within and through institutions and relationships that confer privilege and power. Those institutions and relationships, whether deemed public or private, are at least partially defined and reinforced by law.

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