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OSLO LAW REVIEW

Vulnerability and Inevitable Inequality

Martha Albertson Fineman

Robert W Woodruff Professor of Law at Emory University and Professor of Law and Social Justice,

Leeds University

mlfinem@emory.edu

ABSTRACT

The abstract legal subject of liberal Western democracies fails to reflect the fundamental

reality of the human condition, which is vulnerability. While it is universal and constant,

vulnerability is manifested differently in individuals, often resulting in significant differ-

ences in position and circumstance. In spite of such differences, political theory positions

equality as the foundation for law and policy, and privileges autonomy, independence and

self-sufficiency. This article traces the origins and de velopment of a critical legal theory

that brings human vulnerability to the fore in assessing individual and state responsibility

and redefining the parameters of social justice. The theory arose in the context of strug-

gling with the limitations of equality in situations I will refer to as examples of ‘inescapable’

inequality. Some paired social relationships, such as parent/child or employer/employee

are inherently, even desir ably, unequal relationships. In recognition of that fact, the law

creates different levels of responsibility, accepting disparate levels of authority, privilege

and power. Those laws, and the norms and rules they reflect, must carefully define the

limits of those relationships, while also being attentive to how the social institutions in

which they exist and operate (i.e. the family and the marketpla ce) are structured and func-

tioning.

Keywords

Social justice, equality, vulnerability, resilience, state responsibility

This is an Open Access article distributed under the terms of the Creative Commons CC-BY 4.0

License (http://creativecommons.org/licenses/by/4.0/).

10.18261/issn.2387-3299-2017-03-02

Volume 4, No. 3-2017, p. 133–149

ISSN online: 2387-3299

RESEARCH PUBLICATION

1. I NTRODUCTION

My work over the past several decades has grappled with the limitations of equality. This

struggle has resulted in the development of a legal paradigm that brings vulnerability

and dependency, as well as social institutions and relationships, together into an analysis

of state responsibility. This analysis goes well beyond concern with formal equality and

impermissible discrimination.

What follows is an account of the development of a theory based on human vulnera-

bility in which the state is theorised as the legitimate governing ent ity and is tasked with

a resp onsibility to establish and monitor social institutions and relationships that facili-

tate the acquisition of individual and social resilience. The theory is based on a descrip-

tive account of the human condition as one of universal and continuous vulnerability. The

Anglo-American liberal legal imagination often obscures or overlooks this reality.

The

potential normative implications of the the ory are found in the assertion that state policy

and law should b e responsive to human vulnerability. However, the call for a responsive

state does not dictate the form responses should take, only that the y reflect the reality of

human vulner ability. Thus, this approach to law and policy allows for the adaptation of

solutions appropriate to differing legal st ructures and political cultures.

Vulner ability theory provides a template with which to refocus critical attention, raising

new questions and challenging established assumptions about individual and state respon-

sibility and the role of law, as well as allowing us to address so cial relationships of inevi-

table inequality. In this regard, vulnerability theory goes beyond the normative claim for

equality, be it formal or substantive in nature, to suggest that we interrogate what may be

just and appropriate mechanisms to structure the terms and practices of inequality.

In considering human vulnerability it is significant that, as embodied beings, individ-

ual humans find themselves dependent upon, and embedded within, social relationships

and inst itut ions throughout the life-course. While the institutions and relationships upon

which any individual relies w ill vary over time and in response to changes in embo diment

and social contexts, the fact that we require some set of social relationships and institu-

tional structure remains constant. A vulne rability approach argues that the state must be

responsive to the realities of human vulnerability and its corollary, social dependency, as

well as to situations reflecting inherent or necessary inequality, when it initially establishes

or sets up mechanisms to monitor these relat ionships and institut ions.

Understanding human vulnerability suggests that equality, as it tends to be used to

measure the treatment of individuals or groups, is a limiting aspiration when it comes

to social justice. Equality typically is measured by comparing the circumstanc es of those

individuals considered equals.

This approach inevitably generates suspicion of unequal

or differential treatment absent past discrimination or present stereotyping, particularly if

1. However, I believe that vulnerability theory has the potential to go beyond the Anglo-American frontier. The

influence of neoliberalism as a mercantilist process of social relations as well as a form of rationality capable

of extending to all fields of existence, also has relevance within the European and Latin American contexts.

See Wolfgang Streeck, Buying Time: The Delayed Cr isis of Democratic Capitalism (Verso Books 2014); Wendy

Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books 2015).

2. This includes those who are not socially or economically equal, but regarded as such under the law.

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practised by the state.

Even in its substantive form, assessments of equality focus on spe-

cific individuals and operate to consider and compare social positions or injuries at a par-

ticular point in time.

An equality model or antidiscrimination mandate is certainly the appropriate response

in many instances: one person, one vote and equal pay for equal work are areas where

equality seems clearly suitable. However, equality is less helpful, and may even be an unjust

measure, when applied in situations of inescapable or inevitable inequality where differ-

ing levels of authority and power are appropriate, such as in defining the legal relationship

between parent and child or employer and employee. Such relationships historically have

been relegated to the ‘private’ sphere of life, away from state regulation. When explicitly

addressed, situat ions of inevitable inequality are typically handled in law and policy either

by imp osing a fabricated equivalence between the individuals or by declaring that an

equality mandate does not ap ply b ecause the indiv iduals to be compared are positioned

differently. An example of the imposition of fictitious equality, in response to ine vitable

inequality, is evident in situations involving parties who occupy obviously unequal bar-

gaining positions, like the contr act that is fabricated in the employment context.

The

distinction in the legal treatment of children as compared with adults also exemplifies

the differently positioned resolution for unequal legal treatment. In both instances, state

responsibilit y f or ensuring equitable treatment for differently positioned indiv iduals is

minimised within the overriding framework of equality.

3. Moreover, equality implies a comparison that leads to the problematic question: equal to whom? In the case of

women, are male norms and standards the appropriate measure? Such an assimilationist approach to equality

presumes the socially and culturally imposed roles, obligations, and burdens are similar or equal in nature as

regards women and men. If this is not the case, equal treatment will often result in further consolidating exist-

ing unequal power relationships, effectively reinforcing the very gender system that feminists oppose. In addi-

tion, the idea of choice may suggest to some that existing inequalities show not a failure of equality per se, but

are simply the result of different life choices freely made by autonomous men and women. If women choose

to devote more time to family and relationships, rather than investing their energies in the labour market, the

resulting gender disparities are merely the neutral result of differing choices made by equally autonomous and

free adults.

4. Substantive equality is the subject of much debate. The conflicting opinions of Justices LeBel and Abella in

Quebec (Attorney General) v. A, 2013 SCC 5, (2013) 1 SCR 61 interpreting section 15[1] of the Canadian Charter

of Rights and Freedoms is an example of the nature of disagreement. Both justices agreed that the specified

section guarantee d substantive rather than mere formal equality and was designed to protect human dignity.

Justice LeBel insisted that a law was not discriminatory unless it involved a distinction based on an enumerated

or analogous ground of discriminat ion or prejudice or the perpetuation of prejudice or stereotyping, even when

it otherwise imposed a disadvantage on the plaintiff (note 7 at para 185). Justice Abella in the majority opinion

rejected the view that p rejudice or stereotyping are necessary elements, opting for a ‘flexible and contextual

inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant’ (note

7 at para 325). This disagreement reflects the tension between certainty and flexibility that creates ambiguity

and incongruity in substantive equality jurisprudence. See generally Colleen Sheppard, Inclusive Equality: The

Relational Dimension of Systemic Discrimination in Canada (McGill-Queen’s University Press 2010).

5. Contracts of adhesion or involving corporate entities and individuals where there is a predictable inequality of

knowledge, bargaining power and access to legal resources.

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1.1 Gender Equality in Context: Family

The series of le gal events that initially shap ed my critique of equality included the no-fault

divorce ‘revolution’ and subsequent reforms of family law and the civil rights movement.

These social movements created political pressure that led to the creation of non-discrimi-

nation legislation that (at least formally) mandated gender neutrality in the interest of

gender equality in the workpla ce and other areas of public life. In both of these contexts,

gender equality was presumed and legally imposed.

My early scholarship focused on the family in late twentieth century America, which

was at that time the site of substantial reform efforts.

Arguments for marital property

and joint custody reflected the idea that marriage should be seen as a partnership between

equals, not as a hierarchical, gender-dependent union.

The problem with the imposition

of an equality paradigm in family law was that, as our most gendered institution, the func-

tional family was riddled w ith inequalities. Women were cer tainly not equal when it came

to work and their roles as wives and mothers further disadvantaged them in the market.

This not only created an economic disadvantage, but also had negative implications within

the family when decisions about residence or assumption of domestic responsibilities were

at issue. Lower wages and fewer opportunities lessened the bargaining power of mothers

when it came to family decisions, such as who should assume the burdens associated with

caring for children. Economic realities directed the primary wage earner be freed to further

develop his career or market skills in the interest of the family as a unit. It was not surprising

6. I use the term ‘non-discrimination’ here rather than ‘anti-discrimination’. The prefix ‘non’ is used for negation

of something (denial o r disapproval), while ‘anti’ means in opposition to something (taking an active stance

against): The Random House Dictionary of the English Language (Stuar t Berg Flexner & Leonore Crary Hauck

eds., 2d ed. 1987) 1306. Although typically labeled as ‘anti-discrimination’, US equality law is not opposed to all

discrimination. Rather, U.S. law only actively opposes some forms of discrimination explicitly targeting discrete

individuals or groups and therefore may be more appropriately described with passive nomenclature.

7. Martha Albertson Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (The Univer-

sity of Chicago Press 1991); Mar tha L. Fineman, ‘The Politics of Custody and the Transformation of American

Custody Decision Making’ (1989) 22 U.C. Dav is Law Review 829; Martha L. Fineman, ‘Dominant Discourse,

Professional Language, and Legal Change in Child Custody Decisionmaking’ (1988) 101 Harvard Law Review

727; Martha L. Fineman, ‘Introduction to the Papers: The Origins and Purpose of the Feminism and Legal

Theory Conference’ (1987) 3 Wisconsin Women's Law Journal 1; Martha L. Fineman, ‘A Reply to David Cham-

bers’ (1987) Wisconsin Law Review 165; Martha L. Fineman, ‘Illusive Equality: On Weitzman’s Divorce Revo-

lution’ (1986) American Bar Foundation Research Journal 781; Martha L. Fineman, ‘Implementing Equality:

Ideology, Contradiction and Social Change’ (1983) Wisconsin Law Re view 789.

8. Fineman, The Il lusion of Equality (n 7) 46. The partnership imag e gives r ise to the idea of contribution, which is

an equalising concept, but also an acknowledgement and acceptance of differences. Marital property sees prop-

erty (narrowly defined) not in terms of who earns the money or owns the property, but as joint, presumably

equally shared in spite of different material contributions to the acquisition of property made by husband and

wife—wage earner and homemaker.

9. In my early work, I advocate for the recognition of difference and the meaning of a ‘gendered life’, in which

differences are socially constructed rather than inherent to the person: Martha L. Fineman, ‘Challenging Law,

Establishing Differences: The Future of Feminist Legal Scholarship’ (1990) 42 Florida Law Review 25, 44; Martha

Albertson Fineman ‘Feminist Theory in Law: The Difference It Makes’ (1992) 2 Columbia Journal of Gender and

Law 1, 2.

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that women were overwhelmingly primary caretakers, and this was true whether they were

employed or not.

An additional family-centred inequality was associated with divorce. Just as during mar-

riage, women typical ly assumed primary responsibility for children post-divorce.

Exist-

ing inequality in the market and within the family was compounded at divorce. Caretaking

during marriage had led to reduced income potential and fewer job prospects for women,

and divorce drastical ly cut the income available to the single-parent family. Children’s need

for care (both nurturing and material) does not diminish with divorce. On the contrary, it

may increase or be come more complicated to provide. At divorce, the primary wage earner

takes (most of) his salary with him, and (likely) abandons any assistance with care he may

have provided within the continuing, but now altered, family unit.

Divorce also does not

cure a workplace culture hostile to those w ith caretaking responsibilit ies.

It seemed ironic that the remedy to existing gender inequality within both the family

and workplace was deemed the imposition of a legal regime of equality that ignored the

differences in social and economic positions between women and men.

Reformers sought

to ‘free’ ex-wives from the ‘stigma’ of alimony, which was seen as a patriarchal indica-

tor of women’s dependence on men. Conservatives concerned with welfare dependency

and single motherhood compelled work or marriage as solutions to the poverty of single

mothers. Under a gender-equality regime, women were to be responsible for their ow n

economic futures, as well as equally responsible for their children’s support. Men were

expected to fulfill their economic responsibility to children through child support, but they

also gained strategic legal advantages in the form of presumptions of joint custody and

shared parenting models.

In contrast to prevailing reform efforts premised on formal equality in spite of less than

equal outcomes, my early work suggested a ‘substantive equality’, or result-oriented system.

Consider ing what the now single-mother, post-divorce family would need, I argued that

that unit should be awarded more mar ital property (particularly the house) and some

10. This pattern generated a huge amount of scholarship during that t ime, including my own contributions; for

example, the project published as ‘Law Firms and Lawyers with Children: An Empirical Analysis of Family/Work

Conflict’ (1982) 34 Stanford Law Review 1263. See also Mary Jo Bane and othe rs, ‘Child Care Arrangements of

Working Parents’ (1979) Monthly Labor Review 50, 52-53. One study estimates that a mother staying out of the

labour force until her child reached 14 would forego, on average, $100,000 in earnings. Elizabeth Waldman and

others, ‘Working Mothers in the 1970’s: A Look at the Statistics’ (1979) Monthly Labor Review 39, 42.

11. This was true regardless of the form of custody award because even in ‘joint custody’ cases mothers typically do

the bulk of the day-to-day daycare. Fineman (n 7) The Illusion of Equality 37.

12. There were also further inequalities imposed by the mandate of shared parenting, such as the requirement that

custodial parents get permission to take the child out of state, even if the purpose of the move was to take a

better job or move with a new spouse. These aspects of inequality resulting from equality-based divorce reforms

are beyond the scope of this article, but the subject of much of my writing from the 1980s through 2004: se e

Fineman, The Illusion of Equality (n 7); Martha L. Fineman, ‘Custody Determination at Divorce: The Limits of

Social Science Research and the Fallacy of the Liberal Ideology of Equality’ (1989) 3 Canadian Journal of Women

and the Law 88, 110; Fineman ‘Dominant Discourse, Professional Language, and Legal Change in Child Custody

Decisionmaking’ (n 7); Fineman, ‘Illusive Equality: On Weitzman’s Divorce Revolution’ (n 7).

13. This revealed the ‘paradox of equality’ as explained in Martha Albertson Fineman, ‘Evolving images of gender

and equality: a feminist journey’ (2008-2009) 43 New England Law Revie w 437.

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form of family support that recognised the limits caretaking placed on work and wages.

I wanted unequal treatment in v iew of unequal needs created by an inequality in circum-

stances pre- and post-divorce, and suggested that this form of inequality would recognise

the sacrifices and major contributions women made as mothers, as wel l as show ing that

society valued such work.

It was not long before equal rights feminists and fathers’ rights

groups joined to condemn my suggestion, rejecting result-oriented divorce policy as viol-

ating the fundamental pr inciples of gender equality.

1.2 Equality in Context: Market and State

One problem with family law reform was that it was seemingly impossib le for many people

to separate the issue of gender equality from the question of the needs of the post-divorce

family raising children. Divorce reform was argued as if it were part of a gender war, wage d

to define the status of men versus women; rules had to be equal or men and women would

not be and the symbolic implications of law overtook practical considerations. Respond-

ing to this gender equality dilemma, I argued that we should look beyond the individuals

w ithin the family—and their genders—to the role that the family, as an institution, was

serving in society.

Part of the criticism being made by legal feminists at that time was directed at the sup-

posed line drawn between ‘public’ and ‘private’.

The family was the quintessential private

institution, and the state represented the public, while the market, chameleon-like, drifted

between private and public depending on which designation gave it the most freedom and

flexibility. Erasing this line in the context of family law reform, I argued there was a social

or colle ctive responsibility for caretakers and their children.

In the wake of divorce reform

and the increased number of unmarried mothers, it was clear that the traditional marital

(private) family was failing and could not reliably meet the economic and nurturing needs

of its members. The solution was clearly to share the burden across society’s institutions,

14. Fineman, The Illusion of Equality (n 7) 175-180.

15. Martha Albertson Fineman, ‘Our Sacred Institution: The Ideal of the Family in American Law and Society’

(1993) 2 Utah Law Review 387-406 (arguing that the no-fault reconstruction of the family narrative is the

characterisation of marriage as a partnership between equals and a deviation from the nuclear family in that it

is not a hierarchal model); Fineman, ‘Dominant Discourse, Professional Language, and Legal Change in Child

Custody Decisionmaking’ (n 7); Martha Albertson Fineman, The Neutered Mother, the Sexual Contract and other

Twentieth Century Tragedies (Routledge 1995).

16. Fineman, The Illusion of Equality (n 7) 43. There were many strange implications of the gender-equality

approach. For one thing, children were not part of the economic equation outside of child support. Consistent

with the marriage as an equal partnership (or a partnership between equals), the marital property was to be

divided between the partners to the marriage. When I suggested that the children be considered junior partners,

I was ignored.

17. Martha Alber tson Fineman, ‘Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency’

(2000) 8 American University Journal of Gender, Social Policy & the Law 13.

18. I argued against the construct ion of a discourse in which the socially and economically based deprivations that

poor children and their mothers suffer are thereby transformed into deprivations attributable to and based

upon their deviant family form. See Martha L. Fineman, ‘Images of Mothers in Poverty Discourses’ (1991) 2

Duke Law Journal 274.

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an approach that seemed both just and justified. While the family was acknowledged as

playing an important role in the reproduction of society, other social institutions—even

when they directly benefitted from the work carried out by the family—were not seen as

directly responsible for ensur ing its success. I believed the re needed to be a more equitable

distribution of institutional responsibility for ensuring the provision of essential care prin-

cipally delegated to the family in contemporary policy and law.

In making this argument for shared institutional responsibility, I introduced the related

concepts of ‘inevitable’ and ‘derivative’ dependency.

Beginning with the observation

that human dependency was inevitable, I suggested that the dominant political language

extolling self-sufficiency and indep endence was both unrealistic and inappropriate.

Dependency was a complex phenomenon. ‘Inevitable dependency’ described the needs for

care associated with certain biological and developmental stages of life. Infants were inevi-

tably dependent, as were many p eople as they aged or became ill or disabled. Yet, this form

of dependency had been privatised by assigning it to the family. It had also been gendered

within the family, falling on the shoulders of those who were assig ned the social roles of

wife and mother.

The advent of the gender-equality movement had revealed contradictions and incom-

patibilities between the structure of the family and the workplace. The demands of the

employment market conflic ted with the needs of the family, preventing gender-equality

from being implemented. It se emed clear that in order to achieve such change, other

institutions would have to undergo complementary evolutions, incorporating new family

expectations into their operations.

To effect such change, I suggested that inevitable dependency should be the concern of

society generally, with responsibility shared across social institutions.

This responsibility

could be fulfilled throug h accommodation and support for those who assumed the role

of caretaker—the derivatively dependent. We all owe a debt to those w ho care for inevi-

table dependents and this debt must be paid through collective means; such a duty could

not be discharged simply by being nice to your own mother. Making an analogy to mili-

19. Dependency typically was used as a highly stigmatised term at that time, particularly in the context of ‘welfare

reform’. Dependency and the idea of cycles of intergenerational dependency were used to justify draconian cuts

to an already meager safety net for poor women and their children in the U.S.. However, single mothers who

attained that stat us through divorce could look to their ex-husbands for resources, d ependent on him, rather

than the state. Nonetheless, the gendered social roles and expectations within the family affected the way women

were seen and received in society independent of their own family situation or motherhood status. Martha L.A.

Fineman, ‘Masking Dependency: The Political Role of Family Rhetoric’ (1995) 81 Virginia Law Review 2181.

20. Martha Albertson Fineman, ‘Intimacy Outside of the Natural Family: The Limits of Privacy’

(1991) 23 Connecticut Law Review 955; see also Fineman, ‘Images of Mothers in Poverty’ (n 18); Fineman, ‘Our

Sacred Institution’ (n 15).

21. I realised that the nuclear family func tions on an ideological level in our society as the repository of dependency.

Fineman, ‘Our Sacred Institution’ (n 15) 387. Interestingly, this argument had both structural (family in society)

and equality or discrimination (women versus men) dimensions, although I didn’t perceive this at that time.

22. See Fineman, ‘Our Sacred Institution’ (n 15)

23. Fineman, ‘Cracking the Foundational Myths’ (n 17).

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tary service, I argued that individual soldiers were assigned the responsibility of defend-

ing society, but they were also given the resources necessary to do that job, as well as being

compensated economically.

Caretakers are also dependent on resources to accomplish

their socially important and essential work. T hose resources could not (and were not in all

too many cases) supplied by the family. I argued that social responsibility must be more

equitably spread across the societal institutions that benefited from care work, with the

workplace in particular expanding to accommodate caretakers.

State responsibility should result in regulations designed to ensure such accommoda-

tion, as well as the provision of services like childcare centres or subsidies in order to ease

the structural and economic burdens that inevitable dependency places on the caretaker

and famil y. These arguments were motivated by an understanding of the family as a social

institution that is not isolated, but rather, connected to and co-dependent upon other insti-

tutions that needed the future workers, citizens, entrepreneurs, and so on, that the family

nurtured in its role in reproducing society.

The mainstream academic responses to my arguments about ine vitable dependency

were predictable. The situation of children was easily overlooked w hen it came to an assess-

ment of equality and state responsibility. They were not equals. Their inevitable depend-

ency differentiated them from the adults in the family, but it was a disadvantage everyone

suffered and would outgrow. Children were the responsibility of the family and their inter-

ests could justly be subsumed within it. As for the ill and elderly, the y had the personal

responsibility to provide for themselves in old age through insurance and pension plans. If

they had not, means-tested social welfare programs existed for those who had failed to live

up to their personal responsibility to protect themselves.

I thought that the arguments about derivative dependency would be somewhat harder to

deflect, but the prevalence of economic modeling for assessing just about any social insti-

tution and relationship facilitated its dismissal. Caretakers were free and equal individuals

who had made a ‘personal choice’. It was hardly society’s responsibility to subsidise that

choice. In the words of one commentator, if one person had a preference for a child, while

another preferred a Porsche, why should society treat these choices differently?

These

were merely individual decisions and neither preference d eserved social subsidy. Thus, an

emphasis on personal liberty and au tonomy was combined with an assertion of equality or

24. Ibid 19.

25. Martha Albertson Fineman, The Autonomy Myth. ATheory of Dependency (The New Press 2004).

26. The classic statement of this argument generally is made by Wendy W. Williams in

her article ‘The Equality Crisis: Some Reflections on Culture, Courts, and Feminism’ (1982) 7 Women's Rights

Law Reporter 175. See too Peter E. Edelman, ‘Promoting Family by Promoting Work: The Hole in Martha

Fineman’s Doughnut’ (2000) American University Journal of Gender, Social Policy & the Law 85.

27. The ‘Porsche Preference’ argument states that if someone prefers a child, this preference should not be treated

differently than any other choice (like the choice to own a Porsche). Society should not subsidise either prefer-

ence. For recent advocacy of this idea see Greg Mankiw, ‘Is community rating fair?’ http://gregmankiw.blogspot.

com/2013/11/is-community-rating-fair.html accessed 28 August 2017. But also, for a more sophisticated devel-

opment of this line of reasoning, see Mary Ann Case, ‘How High the Apple Pie – A Few Troubling Questions

about Where, Why, and How the Burden of Care for Children Should Be Shifted’ (2001) 76 Chicago-Kent Law

Review 1753.

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impartiality and used to argue against directing law and policy to address existing inequal-

ity.

Once ag ain, arguments for a collective (or social) ideal of justice were b eaten back by

reference to the ideal of individual, not institutional, responsibility.

While it was not persuasive to the liberal, individual choice-oriented commentators, the

development of the concept of derivative dependency in the family context was a theoreti-

cally important step in the evolution of vulnerability theory. It had moved my thinking

beyond the individual and indiv idual characteristics, such as gender, to focus on societal

structures and the characteristics of social institutions and relationships. The advent of

formal equality in family law did not mean that socie ty’s institutions of family and work

were tr ansformed. Those st ructures continued to subordinate, but no longer formally on

the basis of gender. Structural disadvantage remained intact, a produc t of a reality in which

society either does not place much value on caretaking as a social function and therefore

need not accommodate it, or that so ciety (or some segments of it) places so much value

on caretaking that it should not be diminished by being quantified or monetised in social

policy.

In other words, it is the nature of and significance given to the social task of caretaker

that operates to disadvantage the individuals who occupy that role, not the gender of the

caretaker. If men become caretakers, they also suffer economically and professionally. T he

market is structured so as to assume no responsibility for the reproduction of society.

When the state concedes it has some responsibility, it is only to serve as a highly stigma-

tised backup when the family ‘fails’. All caretakers, regardless of sex, will be subordinated

by this structure and the ideology of family autonomy, independence and self-sufficiency

that supports it. At that time, I realised that what I had been analysing as a gender problem

was actually a societal problem that extends well beyond a gender equality frame. I ulti-

mately understood that what was ne eded was an approach to social justice that challenged

the liberal reliance on individual choice and the construct of the private family.

My current focus extends well beyond the family to include all social and institutional

relationships and the justice problems they may reveal in contemporary society. In devel-

oping a vulnerability approach to the just ice issue, I have been guided by the realisation

that social problems need social or collective, not just individual, solutions. Developing a

collective or social just ice approach requires that we understand the nature of those who

compose the collective. I thus begin with a descriptive or empirical understanding of what

it means to be human. From that foundational premise, I develop a normative, or theo-

retical, perspective on the just allocation of responsibility for individual and societal well

being. Such responsibility must be shared between the individual and the state and its insti-

tutions. At the same time, social problems also require a confrontation with, and response

to, situations of inherent or inevitable inequality.

28. When women shed the patriarchal family status of wife and mother and became just half of the generic and

gender-neutral partner and parent, they were relegated to the world of consent and contract where the illusion

is that individuals can operate independent of society, culture and history.

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2. VULNERABILITY THEORY

2.1 Reconstructing the Political Subject as the Vulnerable Subject in Law

Although it is often narrowly understood as merely ‘openness to physical or emotional

harm’, vulnerability should be recognised as the primal human condition. As embodied

beings, we are universally and individual ly constantly susceptible to change in our well

being . Change can be positive or negative—we become ill and are injured or decline, but we

also grow in abilities and develop ne w skills and relationships.

The term ‘vulnerable’, used

to connote the continuous susceptibility to change in both our bodily and social well-being

that all human beings experience, makes it clear that there is no position of invulnerabil-

ity—no conclusive way to prevent or avoid change.

For the most part, human vulnerability has been ignored or marginalised in mainstream

legal theory or political philosophy. Particularly in contemporary politics increasingly

shaped by themes of austerity and purported threats from immigration, we see a growing

fixation on personal responsibility, individual autonomy, self-sufficiency and independ-

ence, buoyed by an insistence that only a severely restrained state can be an economically

responsible one. When the term vulnerability is use d, it is t ypically (and inaccurately)

attributed to only some individuals or groups, who are referred to as ‘vulnerable popula-

tions’, It is also used as a basis for comparison: some people are viewed as more or less vul-

nerable, or as differently or uniquely vulner able. This perspective ignores the universality

and constancy of vulnerability as I use the term and is merely another way of identifying

bias, discrimination and social disadvantage rather than focusing on structural arrange-

ments that affect everyone. In other words, it is another way to present an equal protection

argument.

Human vulnerability has social, as well as physical and material consequences. On the

most obvious level, our embodiment means that we are innately dependent on the provi-

sion of care by others when we are infants and often when we are ill, aged or disabled. It is

human vulnerability that compels the creation of social relationships found in designated

social institutions, such as the famil y, the market, the educational system and so on. The

very formation of communities, associations, and even political entities and nation-states

are responses to human vulnerability.

Social problems emerge when these social institu-

tions and relationships are not functioning well.

Importantly, a vulnerability approach does not begin with discrimination or difference

in legal treatment as the primary evil to be addressed. Rather, it begins with the assertion

that we need to rethink this conception of the leg al subject to make it more reflective of the

actual human experience. It requires that we recognise the ways in which power and privi-

lege are conferred through the operation of so cietal institutions, relationships and the crea-

tion of social identities, sometimes inequitably. Be cause law should recognise, respond to,

and, perhaps, redirect unjustified inequality, the critical issue must be whether the balance

of power struck by law was warranted.

29. I first develop the concept of vulnerability in my art icle ‘The Vulnerable Subject: Anchoring Equality in the

Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1.

30. Ibid.

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Social identities are manifested within institutions and do not manifestly reflect individ-

ual characteristics, such as race or sex. However, they do represent the allocation of power

and privilege between occupants based on the social function of the institution and their

social roles within it. Individuals occupy different social identities as the y ag e and expand

their inter action with different social institutions and relationships (from child to teenager

to adult—from family to school to workplace). Gene ral idealised social identities, such

as parent/child, employer/employee and shareholder/consumer are formed and operate

as functional and ideological constructs, which tend to shape individual options. These

linked, complementary social identities also may reflect an intrinsic inequality between

their occupants, an inequality that is often not only justifiable, but also necessary.

Idealised identities are human constructions and, as such, they are not static. However,

as archetypes they do reflect the historic values and priorities of society and tend to be rela-

tively stable for extended periods of time. Proposed changes in, or widespread deviations

from, these idealised identities can provoke social turmoil and backlash. So too, changes in

individual status can give rise to insecurity and anger or frustration, as well as a sense of

accomplishment or opportunity.

What vulnerability theory offers is a way of thinking about political subjectivity that rec-

ognises and incorporates differences and can attend to situations of inevitable inequality

among legal subjects. In this regard, one advantage of vulnerability theory is that it can be

applied in situations of inevitable or unresolvable inequality: it does not seek equality, but

equity. A vulnerability analysis incorporates a life-course perspective while also reflecting

the role of the social institutions and relationships in which our social identities are formed

and enforced. It also defines a robust sense of state responsibility for social institutions and

relationships.

2.2 Taking Account of Differences

The process of analysing the differences that arise from individual experience within social

structures does not begin with the particular characteristics of the individual, but with the

nature of social arrangements. The abstract and inevitably contested legal principles often

referred to in human rights literature, such as equality, liberty and dignity, are not the

measure for this inquiry, however. Nor does it rely on placing individuals into distinct but

comparable categories for purposes of equal protection analysis (male/female, white/black

etc.).

There are two relevant forms of individual difference in a vulnerability approach—those

that arise because we are embodied beings and those that arise because we are social beings

embedded in social institutions and relationships. Consid eration of these two forms of dif-

ference will inevitably draw attention to distinct facets of social o rganisation and activ ities.

These differences also require distinct legal and policy approaches, and suggest specific

roles for the state to play regarding its responsibility for citizens.

31. What I call the ‘vulnerability paradox’ relies on the importance of acknowledging differences while recognising

that vulnerability is a fundamental and universal part of the human condition. Vulnerability must be under-

stood as particular, varied and unique on the individual level. Impermissible bias and discrimination based

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Embodied Differences

Perhaps the most evident of embodied differences are the physical variations exemplified

in anti-discrimination laws. These represent the horizontal assessment of difference. These

physical differences have a census quality, accessing variations and characteristics that exist

in society at a given time. They tend to be constructed as static and are often distinguished

doctrinally with terms such as ‘immutable. While discrimination laws address some of

these differences, others, such as age and those associated with physical and mental ability,

continue to serve as justification for differential treatment.

In addition to the bodily differences that are manifest across various memb ers of so ciety

at any given time, are those differences that evolve within each individual body. These dif-

ferences reflect the progressive biological and developmental stages within an individual

human life. Individual bodies will mature and grow, as well as age and decline. We can

think of these differences as occurring along a vertical and temporal dimension of analy-

sis—within the individual over time.

These differences form the basis for classifying groups along developmental lines: as

infants, children or the elderly. The law as it is currently fashioned does allow for differen-

tial treatment, or discrimination, based on these developmental differences.

Based on categorical assumptions about capabilities and competence, the law recognises

‘special’ treatment for some groups based on developmental difference. The law actually

creates a modified legal subjectivity (a distinct legal identity) for those not neatly fitting

within the ability boundaries defining the contemporary legal subje ct. As a result, as an

individual passes through various developmental stages, their legal identifier changes: from

child to adult, but also from adult to elderly or, sometimes, disabled. To the extent that

shifting legal subjectivity also ignores or diminishes what is considered to be the appro-

priate level of state responsibility for individual well being, this is a problem. For example,

the way that the law defines relationships within the family may result in parental privilege

eclipsing or obscuring the state’s independent responsibility for the well being of the child.

While the institutions and relationships wil l change, our understanding of state responsi-

bility with regard to human vulnerability must be consistent across the life-course. Infancy

and childhood should be understood as merely inevitable developmental stages in the life

of the vulnerable subject, not as the occasion for the creation of distinct and diminished

categories of state responsibility.

Perhaps not surprisingly, it is the vertical dimension of embodied difference that is of

primary interest in a vulnerability analysis. The differences we each experience over time

show the inevitability of human dependence on others and on society and its institutions.

on sexuality, race and gender differences should continue to be addressed in law and policy, and also recognise

the ways in which differences can be the basis for community building and a source of strength and resilience

for individuals. See Martha Albertson Fineman, ‘Vulnerability, Resilience, and LGBT Youth’ (2014) 23 Temple

Political & Civ il Rights Law Re view 307.

32. Martha Albertson Fineman, ‘“Elderly” as Vulnerable: Rethinking the Nature of Individual and Societal

Responsibility’ (2012) 20 Elder Law Journal 71. In this paper, I argue against a conception of old age as a separate

designation or category of human existence and for the restatement as simply ‘one end of the continuum that

represents the life-course of the vulnerable subject’.

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They also illuminate the inevitable nature of inequality in social relationships. Physical or

emotional dependence on others is particularly evident in infancy and childhood, but is

also often found with severe illness, disability and advanced age. This form of dependency

I prev iously referred to as inevitable: it is universally experienced, an inherent characteristic

in the human condition.

There are laws and norms that guide the unequal relationship between a caretaker and

a dependent infant, for example. Law defines parental responsib ility, but has also has con-

ferred a parallel parental right that can work to keep state surveillance at bay. Currently,

there is a great deal of debate abo ut the nature and extent of parental rights and the tension

generated when the child is also positioned as a rights-holder.

Each state must respond to

this tension as it negotiates the balance between parental privilege (rights) and the child’s

right to protection and provision from the state in its laws. It addresses this tension when

it creates laws governing legal relationships such as the marital family or custodial parent.

It is also responding when it defines parental responsibilities with regard to mandatory

laws addressing children’s education, health and discipline. The concept of family privacy

attempts to draw a line between family and state responsibility in favour of the parent.

Embedded Differences

A consideration of the vulnerability that marks each of us, and does so throughout the life-

course, should make it apparent that, of necessity, human beings are social beings. From

the moment of bir th until we die, we inevitably act, interact and react in relationships

with others and within institutions. However, these social interactions necessitated by our

shared vulnerability also produce differences among individuals. All infants are depen-

dent on the care provided within an institutional arrangement, often designated as ‘family’,

However, there are differences among individual families with regard to the resources and

abilities they bring to the social task of providing care.

Institutional differences affecting individual outcomes are also evident in the expanding

sets of social relationships found in educational, employment, financial and other insti-

tutions upon which we must rely as we proceed through life. Predictably, every society is

composed of individuals differently situated within webs of economic, social, cultural, and

institutional relationships that profoundly affect our destinies and fortunes, structuring

individual options and creat ing or impeding opportunities. The initial questions raised in

a vulnerability perspective are structural: does the state monitor a given institution in a way

that is responsive to human vulnerability? In other words, can the differences in treatment

be justified?

33. In the U.S., this conflict is what led many conservative commentators to reject the CCRC. Martha Albertson

Fineman and George Shepherd, ‘Homeschooling: Choosing Parental Rights over Children’s Interests’ (2016) 46

University of Baltimore Law Review 57, 106.

34. While there may be differences be tween states, the fundame ntal questions of allocation of authority and respon-

sibility for vulnerability and dependency are universal in nature.

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3. INSTITUTIONS AND RESILIENCE

As previously explained, as vulnerable human beings we are all, and always, dependent

upon societal structures and institutions, which provide us with the assets or resources that

enable us to survive, and even thrive, within society. This institutional focus has the effect of

supplementing attention to the individual subject by placing individuals within their social

context.

Although nothing can completely mitigate our vulnerability, resilience is what

provides an individual with the means and ability to recover from harm, setbacks and the

misfortunes that affect our lives.

While a vulnerability analysis begins with a description of universal vulnerability, it is

the particularity of the manifestations of vulnerability and the nature of resilience that are

of ultimate interest. Resilience is the critical, yet incomplete, solution to our vulnerabilit y.

There are at least five different types of resources or assets that societal organisations and

institutions can provide: physical, human, social, ecological or environmental, and exis-

tential.

Physical resources determine our present quality of life and include such things

as housing, food, entertainment and means of transportation. Physical resources also

provide for our future well being in the form of savings and investments. Human resources

contribute to our individual development, allowing participation in the market, and the

accumulation of material resources. Human resources are often referred to as ‘human

capital’ and are primarily develope d through systems that provide education, tr aining,

knowledge and experience.

Social resources give us a sense of belonging and community and are provided through

the relationships we form within various inst itutions, including the family, social networks,

political parties and labour or trade unions. In recent decades, identity characterist ics,

such as race, ethnicity and gender, have constituted powerful networks o f affiliation within

political and other institutions. By contrast, ecological resources are related to the positions

we occupy in relation to the physical, built or natural environments in which we find our-

selves. On the spiritual level, existential resources are provided by systems of belief or aes-

thetics, such as religion, culture or art and perhaps even politics. These belief systems can

help us to understand our place within the world and allow us to see meaning and beauty

in our existence.

There is a link between these various types of resources and state responsibility. Many

of the institutions providing resources that give us resilience can only be brought into leg al

existence through state mechanisms.

Importantly, resilience is not something we are born

35. Martha Alber tson Fineman, ‘The Vulnerable Subject and the Responsive State’ (2010) 60 Emory Law Journal

251.

36. The list of resources is an expansion on the list of assets developed in ‘The Vulnerable Subject’ (n 29) based

on the four types of assets identified in Peadar Kirby’s Vulnerability and Violence: physical, human, social and

environmental. Peadar Kirby, Vulnerability and Violence. The Impact of Globalization (Pluto Press 2006). In dis-

cussing resilience, Kirby builds on earlier definitions that understood resilience as ‘enabling units such as indi-

viduals, households, communities and nations to withstand internal and external shocks.’

37. Robert Dahl observed that ‘without the protection of a dense network of laws enforced by public governments,

the largest American corporation could not exist for a day.’ Gar Alperovitz and Lew Daly, Unjust Deserts: How

the Rich are Taking Our Common Inheritance (New Press 2008) 138 (quoting Robert Dahl, Dilemmas of Pluralist

Democracy 183–85 (1982)). Dahl also noted that the view of economic institutions as ‘private’ is an ‘ill fit’ for

their ‘social and public’ nature: ibid 139.

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with, but is accumulated over the course of our lifetimes within so cial structures and insti-

tutions over which individuals may have little, if any, control—whether these institutions

are classified as public or private, or are called family, market, or state. Resilience is also

cumulative. The degree of resilience an individual has is largely dependent on the quality

and quantity of resources or assets that he or she has at their disposal or command. A resili-

ent individual can take a dvantage of opportunities knowing that if they take a risk and the

desired outcome fails to transpire, they have the capacity to recover.

While sometimes a lack of resilience can be deemed an individual failing, often it is a

function of unequal access to certain societal structures or the result of unequal alloca-

tions of privilege and power within those structures.

Too often, we take those who are

deemed to be failing and segregate them according to some characteristic or another, such

as poverty, illness or age, and then classify them as ‘more vulnerable’ to harm or disad-

vantage. However, labeling some individuals and herding them into ‘populations’ defined

as differently or particularly vulnerable (and therefore somehow inadequate) stigmatises

those individuals.

This is so if the purpose of the designation of a vulnerable population

is to protect (as it is with children/elderly) or to punish or control (as it is with at-risk

youth/single mothers).

In a vulnerability analysis, the basis for distinguishing some individuals from better-

positioned but equally vulnerable individuals in the first instance would revolve around

questions of access to sufficient resources, with a deficit indicating they lacked the resili-

ence that is necessar y to address human vulnerability. Significantly, the initial emphasis

here is on the distribution or allocation of resources and the structures within which they

are produced. This suggests that the first question to be considered is whether inst itutional,

not individual, functioning is inadequate. This inquiry shifts the focus to state and social

responsibilit y because it recognises that a deficit in resources often reflects an institutional

or so cietal failing more than an individual one.

The fact that a vulnerability analysis brings the life-course into focus is also important in

thinking about resilience. Resilience-conferring institutions operate both simultaneously

and sequentially in society. That they are sequential is significant. The failure of one system

in this sequence to provide necessary resources, such as the failure to provide an adequate

education, affects an individual’s future prospects in employment, building adult family

relationships, aging and retirement. Given that institutions farther down the line are con-

structed in ways that are contingent on an individual’s successful gathering of ne cessary

resources in earlier systems, it is often impossible to fully recover from, or compensate for,

resource deprivation. Someone lacking a solid education typically will have fewer skil ls and

fewer options and opportunities in the workplace, w hich will make suppo rting a family

more difficult, and also likely mean a more precarious retirement as well as fewer savings

to cushion them in the event of accident, injury or illness.

38. In fact, we all benefit from society and its institutions, but some are relatively advantaged and privileged in their

relationships, while others are disadvantaged. See Fineman, Responsive State (n 35).

39. Ibid.

40. Martha Albertson Fineman, ‘Equality and Difference – The Restrained State’ (2015) 66 Alabama Law Review

609.

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Moreover, sometimes privileges conferred in one system can compensate for or even

cancel out disadvantages encountered in others. A solid, early start with regard to educa-

tion, such as that prov ided by Head Start, an effective pre-school prog ram, may tr ump

poverty as a predictor of success later in school.

This is particularly likely when coupled

with the advantages that a social or relational system can provide, such as a supportive

family and cohesive social network.

Society’s inst itutions provide the assets or resources that give us resilience and in so

doing actually produce—or fail to produce—social, political and economic opportunities.

Access to these opportunities can confer privilege, while exclusion acts to disadvantage.

Thus, indiv idual failure should not be seen as merely the consequence of indiv idual irre-

sponsibility. It also is, perhaps primaril y, the failure of society and its institutions.

4. CONCLUSION: THE NEED FOR A RESPONSIVE STATE

Recognition of the universality of vulne rability is the oretically important to the normative

argument for a responsive state. It provides for both the critique and the suggested [re]con-

struction of social and legal arrangements. The political and legal subject of law in the first

instance is conceived of as a universal subject, an idealised ordinary being. The concep-

tualisation of this legal subject encompasses everyone in society: people are seen either as

‘full’ legal subjects, conforming to this ideal, or given a modified legal subjectivity based

on their deviations from that legal subject. Fundamental principles of democracy require,

at least in the abstract, that laws should be applied equally to those who are determined

to be similarly situated, which underlies the slogan that we are a nation of laws, not men

(sic), and that no man (sic) is above the law. A vulnerability approach does not dispute this

basic principle, but argues that the characteristics of the legal subject that are universalised

must be based on human vulnerability and, therefore, inclusive across both horizontal and

vertical dimensions of difference.

When this democratic principle of equality was formed, the political subject was a

limited or refined one: white, male, property-owning or tax-paying, of a certain age and/or

religion and free. Over the course of the nineteenth and twentieth centuries, certain quali-

fiers were removed and political legal subjectivity formally grew to encompass prev iously

excluded groups. However, this modern legal subject has retained certain secondary char-

acteristics that continue to centre on the nee ds and political sensibilities of an eighteenth-

century male citizen sheltered by institutions such as the patriarchal family and the pri-

vileges o f a master-servant mentality. The legal subject typically envisioned in policy and

political arguments today assumes a distorted and inappropriate equality of position. It

valorises the fully competent, capable individual adult, as well as liberty, self-sufficiency

and autonomy.

41. Head Start is a federal program advocating school readiness for children from low-income families up to age five

by providing nutrition, health and social services along with education and intellectual development services.

About Head Start Services, Office of Head Start, <https://www.acf.hhs.gov/ohs/about/head-start> accessed 31

August 2017.

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This prototyp e of the leg al subject ignores vulnerabilit y and dependency and is a r adi-

cally individualistic mischaracterisation of what it means to be human. It must be con-

fronted and contested. I believe the concept of the vulnerable legal subject has the power

to disrupt the logic of individual choice and personal responsibility built on this liberal

stereotype, and to facilitate the construction of an effective counter-discourse with which

to confront neo-liberalism’s fixation on personal responsibility and its insistence that only

a severely restrained state can be a responsible one.

It does so by articulating a more inclusive and realistic legal subject—one that makes

it clear that injury or injustice does inevitably arise when the state remains unresponsive

to human vulnerability and dependency. This legal subject, who is both embodied and

socially embedded, needs access to resources that will enable them to endure or prosper

from chang e, even harm, throughout institutions and relationships across the life-course.

A guarantee of equality is not enough for this legal subject. The responsive state must be

one that recognises relationships or positions of inevitable inequality, as well as univer-

sal vulnerability and dependency acting as an instrument of social justice in both its law

making and enforcement functions.

42. Fineman, ‘Vulnerability, Resilience, and LGBT Youth’ (n 31) 307.

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