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.

This insight about the social production of resilience allows us to argue for a more responsive state. The state is responsive when it recognizes the universality and constancy of vulnerability, as well as the need to provide mechanisms for building resilience. It is responsive when it acts to monitor and reorient institutions and relationships when they do not function in a just manner. At a minimum, the role of law in structuring societal relationships and institutions means that the state should bear responsibility to ensure that they are justly structured and fairly functioning. An appreciation of the role of social institutions and relationships in producing resilience is central to vulnerability theory’s project of building an ethical framework for confronting neoliberalism, with its emphasis on individual autonomy and personal responsibility.

In contrast to the neoliberal vision, vulnerability theory recognizes the many ways in which societal relationships and institutions are shaped, reinforced, and modified in and through law, and argues that the state is always actively involved in the allocation, preservation, or maintenance of privilege and disadvantage.   To a great extent, it is a political decision whether any social arrangement or relationship is ultimately viewed as arising from and resonating within either the public (collective) or the private (individual) domain. Realizing our reliance on institutions throughout our lives also requires that we recognize that as human creations, institutions are also, although differently, vulnerable.  They can be corrupted and captured, as well as decline and eventually decay. They can cause harm and create situations that exacerbate or exploit human vulnerability. However, institutions, especially those that are monitored effectively and fairly, can also mediate, compensate for and mitigate vulnerability.

Prospects of Applying Vulnerability Theory

The Vulnerability and the Human Condition Initiative at Emory University fosters interdisciplinary scholarship, research, and teaching that encourages inquiry into embodied and embedded vulnerability, resilience, and the role of the responsive state.  The theory offers an opportunity to overcome the limits of antidiscrimination law, equality analysis, and identity based politics. It recognizes the limits of existing interpretations of antidiscrimination where formal nondiscrimination constrains state responsiveness to substantive inequality, by reinforcing a series of dichotomies including state action and omission; negative and positive rights; and public and private spheres.

Vulnerability theory recognizes that the human experience of constant vulnerability varies as a result of stages in the life-course, social institutions, and law, which often trace intersecting forms of oppression on the basis of race, gender, sexuality, disability, and class. Yet the theory focuses our attention on social rather than individual identities and characteristics – on socially constructed relationships that are inherently unequal, such as those between employer/employee, creditor/debtor, adult/minor, parent/child, stockholder/stakeholder, and so on. Equality and antidiscrimination are inadequate as frameworks for understanding how to promote justice within these roles and relationships. Vulnerability thus provides a heuristic device for exposing the structural privilege and disadvantage enveloped in these relationships and suggests ways to readjust them in order to advance social justice and lessen inequality.

What Vulnerability is NOT

It is not simply a substitute term for dependency on care.  Nor is it or its theoretical and conceptual potential exhausted in concepts such as weakness, fragility, precariousness, or being “at-risk” [these are terms usually found in dichotomous pairing – weakness/strength; precarious/stable and so on]. There is no position of invulnerability – there is only resilience [we know this intuitively and experientially].

Vulnerability is NOT just another way of talking about discrimination or signaling disadvantage.  Vulnerability is not merely one among many possible “identities” traditionally adopted or assigned in arguing for equality and civil and political rights.

In addition, recognition of vulnerability does NOT reflect or assert the absence or impossibility of agency – rather, it recognizes that agency [in the form of resilience] is socially produced over the life course and is limited and constrained by the resources and relationships available to any specific individual.  Vulnerability theory asserts that agency or autonomy — like the concept of resilience [and unlike vulnerability] — should always be understood as particular, partial and contextual.

Further: Theorizing vulnerability as both universal and constant means that it should NOT be used as a variable and/or comparative concept.  No individual or group should be considered more or less vulnerable, uniquely vulnerable, or specifically or especially vulnerable.  Rather, we can think about spaces, places, and positions or relationships as indicators of the proximity of, exposure to, or probability for vulnerability to be manifested or realized in the form of dependency.  By the same token, we can think of these same spaces, places, and positions as sites for the production of resilience – these are and should be thought of as sites of state responsibility.

This last point underscores the theoretical point that it is NOT human vulnerability that is socially produced or created.  Certain social situations may reveal our vulnerability in ways that are hard to ignore.  So, while we may recognize that childhood is a stage in which our shared vulnerability is most evident, it is theoretically important to always refer to the universal in the first instance.  We refer to the vulnerable subject as a child and do not position childhood as creating a somehow uniquely vulnerable subgroup of beings – a “vulnerable population.”

In other words, vulnerability is the constant aspect of the human condition, present throughout our lives.  We are not rendered more or less vulnerable because of certain characteristics or status or stages (even as children), but we are more or less resilient.  That inequality of resilience is what is often produced within and through social institutions and relationships of privilege defined and reinforced by law. Pairings such as employer/ employee; parent/child; and corporation/shareholder are examples of the interlocking and overlapping identities that should be examined.  This critical perspective focuses on institutions and their operation and is central to vulnerability theory’s project of building an ethical framework with which to confront neoliberalism and argue for a state that is responsive to human vulnerability.

 

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