Vulnerability

Reflections on a New Ethical Foundation for Law and Politics

Martha Albertson Fineman, Anna Grear, Martha Albertson Fineman, Anna Grear

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317000907
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Martha Albertson Fineman's earlier work developed a theory of inevitable and derivative dependencies as a way of problematizing the core assumptions underlying the 'autonomous' subject of liberal law and politics in the context of US equality discourse. Her 'vulnerability thesis' represents the evolution of that earlier work and situates human vulnerability as a critical heuristic for exploring alternative legal and political foundations. This book draws together major British and American scholars who present different perspectives on the concept of vulnerability and Fineman's 'vulnerability thesis'. The contributors include scholars who have thought about vulnerability in different ways and contexts prior to encountering Fineman's work, as well as those for whom Fineman's work provided an introduction to thinking through a vulnerability lens. This collection demonstrates the broad and intellectually exciting potential of vulnerability as a theoretical foundation for legal and political engagements with a range of urgent contemporary challenges. Exploring ways in which vulnerability might provide a new ethical foundation for law and politics, the book will be of interest to the general reader, as well as academics and students in fields such as jurisprudence, philosophy, legal theory, political theory, feminist theory, and ethics.

Chapter 1
Equality, Autonomy, and the Vulnerable Subject in Law and Politics

Martha Albertson Fineman

Introduction¹

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 strength as an independent universal approach to justice, one that focuses on exploring the nature of the human, rather than the rights, part of the human rights trope. Vulnerability is inherent in the human condition and inevitably descriptive of the institutions we build in response to that vulnerability, including the state. Therefore, while the focus of this chapter is the United States, the points made are relevant for any system that seeks justice, particularly those that address discrimination as a primary cause of social, economic, and political inequalities and systems in which individual liberty or autonomy is seen as a paramount virtue and privileged over equality.

The chapter begins with a discussion of the limitations of equality as it is understood in the United States as formal in nature, filtered through a robust conception of autonomy or liberty to mean little more than a mandate for sameness of treatment. I set out an alternative vision for justice by developing the concepts of vulnerability and resilience and articulating an argument for a responsive state—a state built around the recognition of the vulnerable subject. Vulnerability is posited in this argument as the characteristic that positions us in relation to each other as human beings, as well as forming the basis for a claim that the state must be more responsive to that vulnerability.

Equal Protection of Law

Equal protection law under the United States Constitution requires that, in order to be treated equally, individuals must be treated the same. This sameness of treatment version of equality positions discrimination as the major impediment to achieving equality. Its methodology is comparative: A person or group of persons asserts that they are inappropriately being treated differently from another person or group of persons and that person or group is legally indistinguishable from them. However, this comparison ignores most contexts, as well as differences in circumstances and abilities on the part of those whose treatment is compared. While differences may come into the discussion as a defense, since some distinctions can operate as a justification for different or discriminatory treatment, basically an equivalence of position and possibilities are presumed. Such a narrow approach to equality is ineffective in combating the forces that have resulted in the growing inequality in wealth, position, and power experienced in the United States over the past few decades.

Profound inequalities are tolerated—even justified—by reference to “individual responsibility” and warnings about the addictive dependency of social welfare provisions. The state is not mandated to respond to those inequalities, nor does it have to establish mechanisms to ensure more equitable distributions of either social goods or responsibilities between individuals, groups, and institutions. Quite the opposite: The state is restrained from intervening to readjust relationships or reorder responsibilities between and among individuals, groups, and institutions. State interference with an assumed meritocracy and a market constructed as “free” would be in violation of the principles of individual liberty and autonomy and an encroachment on freedom of contract.

Of course, the state has intervened in response to social movements and political pressures at certain points in American history. During the mid-twentieth-century major civil rights struggles in American society led to interpretations of the Constitution and the development of equal protection legislation that offered special, heightened judicial scrutiny to distinctions drawn along the lines of some personal characteristics or social categories, such as race, gender, and ethnicity. However, it was not discrimination in general that was prohibited, only discrimination directed at a few groups within society who were able to successfully mobilize the political and legal systems and press for inclusion and protection. A person who cannot claim membership in one of the favored identity groups is relatively unprotected under a review standard that asks only if the legislation or classification is “arbitrary.” In the United States, a person can be fired from employment on a whim, for any reason whatsoever,² or be denied housing or access to goods and services, as long as the dismissal or denial is not the result of prohibited identity-based discrimination.

It is not surprising that an approach to inequality that protects only some has generated a politics of resentment and backlash on the part of those who fall outside of the protected groupings. Ironically, it doesn’t always work to the benefit of those who are favored either. Discrimination cases are hard to win and those that are successful are overturned on appeal at a rate higher than other cases (Fineman 2013).

In addition, one protected group can be perversely pitted against another in a zero-sum political game resulting in harmful or compromised policies. The focus on equality as antidiscrimination divides those who may otherwise be allies in a struggle for a more just society by casting them as competitors in a struggle over just whose oppression should count.³ Legal and political battles revolve around the question of whether a specific group seeking protection can be determined to constitute a “discrete and insular minority” and whether they can show a lengthy history of exclusion and animus thus allowing an analogy to groups historically protected. This is what is now unfolding with lesbians and gay men who are fighting for marriage equality by arguing that their exclusion from the institution is discrimination based on animus. In doing so, they reference the miscegenation statues that prohibited interracial marriage until they were struck down in the 1960s as violating equal protection by the Supreme Court. This analogy has generated substantial resentment and resistance on the part of some religious African American groups and others who do not place marriage equality on the same scale as the civil rights struggles over racial oppression. Such resentment is the troubling legacy of our narrow identity-based antidiscrimination approach to equality. Few groups are protected and those who are may not want to see that protection diluted by what they view as lesser claims to the civil rights mantle.

From my perspective, however, the most troubling aspects of organizing equality discourse around identity characteristics is that it distorts our understanding of a variety of social problems and takes only a limited view of what should constitute governmental responsibility in regard to social justice issues. Identity categories have become proxies for problems such as poverty or the failure of public educational systems. The focus only on certain groups in regard to these problems obscures the institutional, social, and cultural forces that distribute privilege and disadvantage in systems that transcend identity categories.

In fact, nestled safely within the rhetoric of “individual responsibility” and “autonomy,” discrimination doctrine enshrines the notions that America generally provides for an equality of access and opportunity. Impermissible discrimination is cast as the discoverable and correctable exception to an otherwise just and fair system in which individuals are at liberty to compete on equal terms.

What then happens to those who fail in this system? Typically, they have been herded together by sociologists, political scientists, public health practitioners, pundits, and others who study them as members of designated “vulnerable populations.” The political and legal response to such populations is surveillance and regulation. The response can be punitive and stigmatizing, as it is with prisoners, youth deemed “at risk,” or single mothers in need of welfare assistance. It can also be paternalistic and stigmatizing, as are the responses to those deemed “deserving,” such as the elderly, children, or individuals with disabilities. What these “populations” have in common is that they are stigmatized. Their perceived vulnerability marks them as lesser, imperfect, and deviant, and places them somehow outside of the protection of the social contract as it is applied to others (Fineman 2012).

Interestingly, sometimes protected identity groups end up being labeled as a vulnerable population. For example, the Urban Institute Health Policy Center defines “vulnerable populations” as “groups that are not well integrated into the health care system” and continues: “Commonly cited examples of vulnerable populations include racial and ethnic minorities, the rural and urban poor, undocumented immigrants, and people with disabilities or multiple chronic conditions.”

The conception that the label of vulnerability belongs only to certain groups or “populations” is not only misleading and inaccurate, it is also pernicious. In the first place, clustering individuals into what is conceptualized as a cohesive population based on one or two shared characteristics masks significant differences among individuals and this is true whether those characteristics are identity based (such as race or gender) or status based (such as poor or immigrant). In addition, asserting that a group has significant differences from the general population obscures the similarities between members of the group and members of the larger society. Such groupings are both over- and under-inclusive.

However, perhaps the most insidious effect of segmenting society and designating only some as constituting vulnerable subpopulations is that such a designation suggests that some of us are not vulnerable. Those who stand outside of the constructed vulnerability populations are thus fabricated as invulnerable. Anyone who has ever tended a child, responded to an accident or emergency, experienced a natural disaster, been the victim of a crime, fell ill or been injured, or experienced many other routine life experiences of vulnerability knows there is no such thing as invulnerability. Yet, American political and legal culture continues to perpetuate this fiction through its adherence to an ideology of individual autonomy and self-sufficiency in which the state is restrained.

Defining the Political–Legal Subject

The Western legal tradition is built on liberal notions of the political and legal subject, in which the appropriate relationships among the state, societal institutions, and individuals are constructed in the shadow of individual liberty or autonomy. The liberal political and legal subject thus defined has the attributes necessary to function fully and independently. This liberal subject is a competent social actor capable of playing multiple and concurrent adult (formerly all-male) societal roles: the employee, the employer, the spouse, the parent, the consumer, the manufacturer, the citizen, the taxpayer, and so on. This liberal subject informs our economic, legal, and political principles. It is indispensable to the prevailing complementary ideologies of personal responsibility and the noninterventionist or restrained state.

Our primary metaphor for examining social and institutional relationships (outside of the family) is that of contract. Society is constituted through a social contract, and autonomous and independent individuals interact with the state and its institutions, as well as with each other, through processes of negotiation, bargaining, and consent. Society is conceived as a collection of self-interested individuals, each of whom has the capacity to manipulate and manage their independently acquired and overlapping resources. Importantly, rather than being dependent on or asserting entitlement to the provision of socioeconomic goods by the state, the liberal subject demands only the autonomy that will enable him to provide for himself and his family. His demand for liberty is refined as the freedom to make choices, the right to contract. Significantly, this demand for liberty on the part of the individual effectively operates as a restraint on the state, which is deterred from interference with individual liberty, even for the purpose of ensuring greater social equality.

The image of the human being encapsulated in the liberal subject is reductive and fails to reflect the complicated nature of the human condition. A vulnerability analysis asks us (and our economists, philosophers and politicians) to embrace a more complex reality by bringing human dependency and vulnerability back into the center of the inquiry into what it means to be human. A vulnerability approach replaces the liberal subject with the “vulnerable subject.” The vulnerable subject is the embodiment of the realization that vulnerability is a universal and constant aspect of the human condition. Dependency and vulnerability are not deviant, but natural and inevitable.

Dependency

Dependency is not a characteristic typically associated with the liberal subject. If visible in liberal discourse, dependency is stigmatized. The preferred accommodation for dependency is to hide it within the private family. This family is the mechanism by which we privatize dependency and insulate policy and political discussions from having to grapple seriously with its significant societal implications. Burying dependency within the family is necessary to the construction of simplistic solutions to widespread poverty and inequality that rely on individual responsibility and assume both the desirability and the availability of a position of independence and self-sufficiency for individual and family alike, an ideology of autonomy that bears little relationship to the human condition.⁴

In The Autonomy Myth: A Theory of Dependency, I argued against such a simplistic approach to dependency and the stigmatization that often accompanies it, particularly in political discourse. Suggesting that we need a more complex and nuanced understanding of what is now encompassed by the single term “dependency,” I noted that, in one form, dependency is inevitable; it is developmental and biological in nature. All of us are dependent on others as infants and many will become dependent as we age, are taken ill, or become disabled.

But recognizing the inevitability of biological or developmental dependency does not exhaust the term. Indeed, there is a second form of dependency that needs to be discussed in relation to, but separate from, inevitable dependency.⁵ I labeled this form of dependency “derivative” to reflect the very simple—but often overlooked—fact that those who care for inevitable dependents are themselves dependent on resources in order to accomplish that care successfully. This form of dependency is not inevitable, nor is it universally experienced. Rather, derivative dependency is socially imposed through our construction of institutions such as the family, with roles and relationships traditionally defined and differentiated along gendered lines. Hence, we find an historic difference in expectations and aspirations attached to dichotomous pairings within the family, such as husband or wife, father or mother, and son or daughter. It has proven difficult to progress toward gender equality given this set of institutional arrangements and the persistence of traditional family relationships.

I argued for a more collective and institutionally shared approach to dependency—a reallocation of primary responsibility for dependency that would place some obligation on other societal institutions to share in the burdens of dependency, particularly those associated with the market and the state. This reallocation of responsibility seemed particularly appropriate since both state and market institutions reaped the benefits that care work produced in the form of the reproduction and regeneration of society.

While many commentators recognized the strength of the arguments I made, others were less convinced that dependency was centrally relevant to larger questions of liberal social policy and law. Because what I called inevitable dependency is understood as episodic and as shifting in degree over the lifetime of an individual, many mainstream political and social theorists can and often do conveniently ignore it in spinning out their theories about justice, efficiency, or liberty. In their hands, this form of dependency, if acknowledged at all, is merely a stage that the liberal subject has long ago transcended or left behind, and is, therefore, of no pressing theoretical interest as they develop their grand theoretical explorations in legal and political theory—it can be left to those of us who focus on more mundane and uninteresting things, such as the family.⁶ As for derivative dependency, that is conveniently dismissed by reference to the liberal contractarian construction of individual “choice.” Those who take up the caretaking role have chosen to do so and should not then complain about their situation or expect others to subsidize their choices.

In addition, the division between the public and the private has real tenacity for traditional legal theorists. In spite of decades of critical commentary showing the distinctions do not hold up, prominent American scholars continue to deal with dependency by relegating the burden of caretaking to the family, which is conceptualized as located within a zone of privacy, beyond the scope of state concern barring extraordinary family failures such as abuse or neglect. Thus largely rendered invisible within the family, dependency can be comfortably and mistakenly assumed to be adequately managed for the vast majority of people. To confront that misconception, I built on the insights of my earlier work and developed the concept of vulnerability and the idea of the “vulnerable subject.” This construct supports an argument for a “responsive state”—a state that recognizes that it and the institutions it brings into being through law are the means and mechanisms whereby individuals accumulate the resilience or resources that they need to confront the social, material, and practical implications of vulnerability. As such, a responsive state also recognizes that it has a responsibility to monitor the activities of its institutions to ensure that they function in an appropriate, egalitarian manner. This progression from vulnerability to state responsiveness incorporates the realities of human dependency. However, since it is not only universal, but also constant, vulnerability proves more theoretically powerful than the idea of dependency in arguing for a more just society.

Vulnerability

Vulnerability on one level can be thought of as an heuristic device, forcing us to examine hidden assumptions and biases folded into legal, social, and cultural practices. Vulnerability is universal. Detached from specific subgroups or populations, placed at the core of our understanding of what it means to be human, vulnerability can form the foundation upon which to build ideas about appropriate social and state responsibility for all. In addition to its universality, there are several other characteristics that define the concept of vulnerability as I am using it.

A second integral feature of vulnerability is its constancy. Human vulnerability arises in the first place from our embodiment, which carries with it the imminent or ever-present possibility of harm, injury, and misfortune. Bodily harms can take a variety of forms and range from those that are mildly annoying to those that are catastrophically devastating and permanent in nature. Bodily harm can result accidentally or be caused by intentional actions.⁷ Bodily harm can result from the unleashing of forces of nature, from the mere passage of time, or from the fact that we humans just exist in a world full of often unpredictable material realities (Fineman 2008: 9). While we can attempt to lessen risk or act to mitigate possible manifestations of our vulnerability, the possibility of harm cannot be eliminated.

Significantly, many forms of harm are beyond individual, or even human, control. The process of aging and death, for example, are clear internal, biological processes that show the limitations of human control over the consequences of our embodiment, which is cons...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Acknowledgments
• Introduction: Vulnerability as Heuristic—An Invitation to Future Exploration
• 1 Equality, Autonomy, and the Vulnerable Subject in Law and Politics
• 2 Kierkegaard and Vulnerability
• 3 Vulnerability, Advanced Global Capitalism and Co-symptomatic Injustice: Locating the Vulnerable Subject
• 4 Vulnerability and the Liberal Order
• 5 More than Utopia
• 6 After the Storm: The Vulnerability and Resilience of Locally Owned Business
• 7 Housing the Vulnerable Subject: The English Context
• 8 Assisted Reproductive Technology Provision and the Vulnerability Thesis: From the UK to the Global Market
• 9 A Quiet Revolution: Vulnerability in the European Court of Human Rights
• 10 Animals as Vulnerable Subjects: Beyond Interest-convergence, Hierarchy, and Property
• Bibliography
• Index