Embracing Vulnerability

The Challenges and Implications for Law

Daniel Bedford, Jonathan Herring, Daniel Bedford, Jonathan Herring

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351105682
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book brings together legal scholars engaging with vulnerability theory to explore the implications and challenges for law of understanding vulnerability as generative and a source of connection and development.

The book is structured into five sections that cover fields of law where there is already significant recourse to the concept of vulnerability. These sections include a main chapter by a legal theorist who has previously examined the creative potential of vulnerability and responses from scholars working in the same field. This is designed to draw out some of the central debates concerning how vulnerability is conceptualised in law.

Several contributors highlight the need to re-focus on some of these more positive aspects of vulnerability to counter the way law is being used enable persons to escape the stigma associated with vulnerability by concealing that condition. They seek to explore how law might embrace vulnerability, rather than conceal it. The book also includes contributions that seek to bring vulnerability into a non-binary relationship with other core legal concepts, such as autonomy and dignity. Rather than discarding these legal concepts in favour of vulnerability, these contributions highlight how vulnerability can be entwined with relational autonomy and embodied dignity.

This book is essential reading for both students studying legal theory and practitioners interested in vulnerability.

Part 1

Family and child law

Family law’s instincts and the relational subject

Alison Diduck

Introduction

There have been many critiques of family law’s adoption of norms and principles derived from liberal, market-based positive law. Eekelaar (2006, 2016), for example, suggested in 2006 that the values that ought to inform family law, or personal law, as he would call it, are friendship, truth, respect, responsibility and rights and, in 2016, thought kindness ought to be the primary value in family law. Barlow (2016) argues that family law’s discourse ought to be solidarity rather than individuality. In common with others, these scholars criticise family law’s recent turn to autonomy as a guiding principle. Feminist critiques in particular highlight the inappropriateness of promoting autonomy in intimate relationships (Herring 2014) not least because its supposed gender-neutral content and gender-blind application tend to disadvantage women (e.g. Herring 2014; Barlow 2016; Diduck 2016). Fineman (2011) goes further and takes the view that the legal subject in all areas ought to be understood as vulnerable rather than autonomous. Others suggest that there is something to be said for autonomy, but that the problem lies in the way it has been conceived and applied (e.g. Mackenzie and Stoljar 2000). They develop the notion of relational autonomy which, although crucial to all areas of law, has particular resonance in family living (e.g. Herring 2014). All of these critiques have in common their rejection of the norms and assumptions which underlie the liberal common law and the legal principles it has engendered.

This chapter offers a reflection on the received canon of the common law and family law’s place within it, or indeed, outside it. I aim to provide another challenge to the idea that the problematic principles of the liberal law of the market can be extended justly to family law. Much of my focus will be on the principle of autonomy and its liberal ‘other’ – vulnerability, and my point of departure is Lord Sumption’s speech entitled ‘Family law at a distance’ delivered to the Royal College of Surgeons in June 2016 wherein he defines for us family law’s and the common law’s ‘instincts’. After suggesting the two are opposed, he makes a case for their melding or at least meeting. He criticises what he sees as family law’s unenlightened specialisation or insularity and, to do so, relies upon a number of assumptions about both the common law and family law. His plea to loosen the boundaries that he sees family law as creating between itself and other areas of law relies at the same time upon a whiggish view of legal history, an ahistorical view of the ‘nature’ of law and its subjects, and a particular understanding of autonomy that is set in opposition to relationality and vulnerability. But his is not a particularly controversial perspective; it is the orthodox, liberal one that has become simply obvious. My comments are not intended therefore to be a challenge to his Lordship, but rather to that orthodox or standard view. My aim is not only to contest it; feminist and other critical scholars have been doing that for a generation. My aim is to challenge its seeming obviousness or apparent reasonableness as an argument for the continued reach of autonomy in family law, with its concomitant pursuit of contractualisation and privatisation. My reflections are feminist; first of all because they challenge the dichotomy assumed to be inherent in the standard view of autonomy and vulnerability. Second, they challenge the view’s faith in law’s coherence, and, thirdly, they offer a critical rather than liberal view of legal history and where we may be in that history right now. My reflections also acknowledge the material realities of gendered family living and family identities rather than neutralising them or abstracting them away.

As a reminder, here are Lord Sumption’s words (pp. 2–3):

There is, however, a more fundamental reason for deprecating an excessively specialised approach. Law is, or at least should be, a coherent system. … The practice of law, whether by judges or advocates, involves applying a range of common techniques and common instincts to a variety of legal problems. The common techniques are the objective construction of legislation and other written instruments, a respect for the body of decided case-law, and a sensitivity to changing attitudes in the world outside the law. The common instincts are those of the common law, which are essentially libertarian. They are founded on respect for the autonomy of the individual.

He goes on (p. 3):

Family law is in some respects special. Historically, it was not part of the common law, but belonged to the jurisdiction of the ecclesiastical courts. Traditionally, its instincts have been very different from those of the common law. They were paternalist and protective … They were an assertion of the power of the state in an area of human affairs where the principle of autonomy has usually counted for much less.

He then agrees that ‘[m]odern family law has moved a long way from its origins’ (p. 3). Its instincts he says, ‘are not immutable, and the last few years has seen a convergence between family law and the instincts of the common law.’ He uses Prest v Petrodel Resources Ltd and Others [2013] UKSC 34¹ as one illustration, but says that

in some ways the most striking pointer to the direction of travel is to be found in the cases about nuptial agreements … In Radmacher the majority of the Supreme Court overtly justified the weight that they attached to them by reference to the principle of autonomy, rejecting the protective approach which had characterised the law administered by family courts for more than a century and a half. ‘It would be paternalistic and patronising’, they said, ‘to override their agreement simply on the basis that the court knows best’.

Here we have his Lordship clarifying for us the ‘instincts’ of the common law and those of family law. He goes on to make a plea for increased ‘cross-fertilisation between different areas of law’ and gently chastises family lawyers for seeming to rebuff this enlightened direction of travel: ‘The family bar, I think, remains one of the more insular areas of practice. This deprives it of perceptions which would enrich it, as it has enriched other areas of law’ (p. 6).

I will break down my reflections into three areas, although they are interlinked. The first is his Lordship’s characterisation of the instincts of the common law and of family law; the second is the lens of evolution, or progress, through which he sees developments in family law over the years, and the third is his normative plea for coherence over all areas of law which ought to be advanced by extending to family law the common law’s multipurpose common techniques and legal principles, including principles of autonomy and liberty.

Law’s instincts

Lord Sumption’s choice of words here is interesting. ‘Instinct’ is defined in the OED as ‘a natural or intuitive way of acting or thinking’. Its synonyms are natural, inherent, unlearned. While this is a surprisingly ahistorical view for a historian like his Lordship to adopt, it comports well with a lawyer’s view of the law which identifies human nature and human rationality as the sources of its norms of liberty and autonomy. As many have said, however, and here I will illustrate with Joanne Conaghan’s (2013, p. 216) words, there is ample reason to suppose that this framework of modern law ‘emerges as the product of a confluence of historical contingencies yielding a particular historically specific instantiation of reason with deep roots in Enlightenment values and aspirations’. Indeed, ‘there is a direct correlation between the emergence of liberal, political philosophical ideas premised on values of individual autonomy, freedom of choice and limited state intervention, and the shared human capacity to reason’ which has ‘clear and significant implications for law’ (ibid.). Law has come to be reason, and reason is defined by what it is not: emotion, esteem, desire, tradition, corporeality.

1 And see discussion below p 47.

Further, not only is this enlightenment idea of reason a historical political construction, so is the conception of the autonomous individual who possesses it. The unconnected agent whose ‘actions are willed into being’ arose at a particular time in history, but has now come to be seen as simply obvious, as natural and instinctual (Anderson and Honneth 2005, p. 128). And finally, liberty – as it has come to be understood in the predominant view – is a negative liberty, the freedom to be left alone. Positive conceptions of liberty, which invoke principles intended to assist individuals to achieve the ‘goods’ or facilities necessary for well-being or our individually or collectively defined ‘good life’, are deemed an interference with the autonomy of the individual deemed capable of achieving them on their own. If these principles are applied at all, they are usually restricted to those characterised as ‘vulnerable’, often with the aim of helping them to achieve autonomy (Diduck 2014, 2016).

My concern with this idea of the common law’s ‘instincts’ is, therefore, both with its supposed content and with its claim to naturalness. There may be much to be said for enlightenment values, but their source in human nature or instinct is not one.

There are as we know, other conceptions of law’s subject and its autonomy and liberty which take issue with the standard liberal version. These confirm the value of autonomy, but appeal for law to recognise and value as a part of autonomy an individual’s connectedness, relations with others and social location. Rather than seeing the legal subject as an abstract ‘everyone and no-one’ whose autonomy is expressed by a series of freely made rational choices, these views are firmly rooted in the material world in which abstract individuals become real, embodied individuals who relate to their world with reason but also with emotion, respect, self-reflection and a relationally constructed self that is neither universal nor abstract. ‘[T]hey point to the need to think of autonomy as a characteristic of agents who are emotional, embodied, desiring, creative, and feeling, as well as rational creatures’ (Mackenzie and Stoljar 2000, p. 21).

Relationality is an important part of what the standard view misses in its unquestioned acceptance of enlightenment subjectivity. Again, here I am not saying much that is new; many have written about the importance to justice and to autonomy of our everyday connections and relationships. They share the assumption that ‘persons are socially embedded and that agents’ identities are formed within the context of social relationships and shaped by a complex of intersecting social determinants, such as race, class, gender, and ethnicity’ (Mackenzie and Stoljar 2000, p. 4). As Herring (2010, p. 267) says, ‘a relational life is inevitable,’ and Nedlesky (2011) argues that relatedness and interdependence are preconditions for autonomy. The autonomous self, as we experience it, emerges from these relationships.

Relational autonomy is therefore the ‘label that has been given to alternative conceptions of what it means to be a free, self-governing agent who is also socially constituted and who possibly defines her self and her basic value commitments in terms of inter-personal relations and mutual dependencies’ (Christman 2004, p. 143). Relational views of the autonomous person, then, ‘underscore the social embeddedness of selves while not forsaking the basic value commitments of (for the most part, liberal) justice. The[y] … underscore the social components of our self-concepts as well as emphasize the role that background social dynamics and power structures play in the enjoyment and development of autonomy’ (ibid.).

These ideas do not reject autonomy outright. Autonomy is an important and fundamental concern for all citizens and all legal subjects, and for women, children and other disenfranchised groups it has particular significance (Diduck 2014). These ideas do, however, challenge the particular understanding of autonomy in the standard view that has come to be understood as instinctual.

Relational autonomy and situational vulnerability

The standard view does not recognise ‘the social conditions necessary for the possibility of autonomy, including the need for education, adequate food and shelter, real opportunities for participating in one’s (minority) culture and in intimate living and loving, not to mention physical accommodations such as lifts, drive-throughs, wheelchair ramps, accessible vehicles, and so on’ (Anderson and Honneth 2005, p. 129). It does not acknowledge our everyday situational realities. A more compassionate and honest way to view humans would, on the other hand, see that our connections and particular social conditions are vital to the development and expression of our autonomy. And more fundamentally, these same connections, conditions and dependencies, which actually constitute our autonomy, also at the same time constitute our vulnerability, our need for shelter, education, food, intimate living and the like. Our situational realities, in other words, constitute us as simultaneously autonomous and vulnerable.

And so seeing autonomy differently allows us to see vulnerability differently. Our connectedness with others and our locations within social structures mean that we are always vulnerable, both in the social dynamics and power structures that affect the constitution and enjoyment of our autonomy and in the personal relationships and dependencies we experience. Vulnerability then, like autonomy, is constituted by human relationality; at this conceptual level, it is not a flaw or a weaknes...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of cases
• Table of legislation and legislative instruments
• List of contributors
• List of abbreviations
• Introduction: vulnerability refigured
• Part 1 Family and child law
• Part 2 Law and ageing
• Part 3 Healthcare law
• Part 4 Labour law
• Part 5 Human Rights Law
• Index