Vulnerability theory differs from liberal political and legal perspectives in significant ways. The theory argues that we must replace the liberal theoretical subject with the “vulnerable subject,” moving analysis away from its current obsession with the individual to focus on the institutional or structural contexts in which the individual must always be placed and theoretically understood.
First, vulnerability theory begins by reasoning from the corporeal realities of the ontological or anthropological body, not with assumptions based on an unrealistic valorization of abstract concepts such as individual autonomy, independence, liberty, and equality.
Second, as embodied beings, we are all vulnerable to physical, environmental, social, and material changes that affect our well-being. As a result, over the life course, we are inherently dependent on interconnected social institutions and relationships (such as the family, workplace, and the education, health, and financial systems) to provide the resources or assets that will give us the “resilience” to ameliorate, modify, compensate, and address our vulnerability.
Third, the social institutions and relationships that provide necessary assets of resilience are not natural in form but the products of history, policy, law, and politics. They are necessary for the individual to survive, even thrive in the face of our vulnerability, but are also essential for the successful reproduction and well-being of society. Vulnerability theory asserts that the rules, values, aspirations, and limitations that govern the operation and are used to judge the functioning of these institutions and relationships are best crafted by a democratic state, not by alternative governing systems, such as the market, religion, or corporate entities.
Fourth, within foundational social institutions, complementary social or institutional identities are formed, such as those of parent/child, employer/employee, doctor/patient, landlord/tenant, and teacher/student. These paired social or institutional identities respond to related but different biological or developmental realities, as well as reflecting differing institutional functions, concerns, or objectives, and are, therefore, inherently (of necessity) unequal relationships. The relevant question, therefore, is how responsibility, power, benefits, and burdens can be asymmetrical but justly allocated within those inherently unequal institutional relationships.
The comment below was written in response to the question of how vulnerability theory might relate to an asserted “right to care”:
Vulnerability theory is a needed supplement or alternative to current ways of thinking about the individual and assessing governmental responsibility. From the perspective of a rights-based (as well as a social contract-based) paradigm, the individual is seen as existing in an inherent state of freedom, entitled to liberty, autonomy, and independence from the governing authority, as well as from the demands of others. This positioning of the individual mandates an ideally non-interventionist or restrained state. By contrast, a vulnerability approach incorporates a much more comprehensive and accurate notion of the foundational human condition, one that embraces the material or corporeal realities of the body and their implications for law and policy. As embodied beings, we are all inherently embedded in and dependent upon social institutions and relationships throughout our lives—institutions such as the family, the workplace, and the market, as well as those arrangements that form the health, social welfare, and finance systems. It is these institutional arrangements, as well as the rules, that are developed to govern them, not individual entitlements, that are the focus of a vulnerability analysis.
In order to be considered legitimate and to operate effectively, the institutional structures or entities—in which we all live our day-to-day lives must ultimately be validated and often regulated) by law. Therefore, what is required is not restraint and non-intervention but responsiveness and involvement on the part of the state. It is this unavoidable governmental or law-making responsibility to form and monitor legal institutions responsive to our vulnerability that creates what might be deemed the state’s “duty” to care about (or be responsive to) the realities of the human condition.
Consequently, in vulnerability analysis, the question of care would not be primarily framed as a “right” belonging to the individual but as a “responsibility” placed upon the state in its creation and design of legal institutions and relationships to incorporate universal human vulnerability. This approach also forces us to broaden our notion of “care” to encompass more than the issues typically included in a discussion of individual rights. Care can (and should) be understood in the context of the complexities and symbiotic nature of the institutional arrangements that are necessary to respond to (even ameliorate) our universal vulnerability across the life course.
As a result, a justly responsive state would not only consider the structuring of family or the healthcare system in addressing the need for care but also how responding to that need within those institutional contexts would also typically require complementary and supportive structuring of other intersecting institutional arrangements, such as those governing the workplace or the financial system. In other words, a vulnerability analysis leads us well beyond considering specific individual rights (or institutions) to imagine the possibility of constructing a comprehensive and coordinated system of social justice. One that would not just provide specific services or uphold individual rights but also structure various institutional arrangements to respond effectively to the complex lived realities of the human condition.
Martha Albertson Fineman
Martha Albertson Fineman is a renowned scholar in law and society, serving as the Robert W. Woodruff Professor and an authority in critical legal theory and feminist jurisprudence. After graduating from the University of Chicago Law School in 1975 and clerking for Judge Luther M. Swygert, she started her teaching career at the University of Wisconsin in 1976. She later held positions at Columbia University and Cornell Law School, where she was the first to hold an endowed chair in feminist jurisprudence in the U.S. At Emory, she founded the Feminism and Legal Theory Project in 1984 and continues to lead it, producing significant publications in feminist legal theory. Fineman also established the Vulnerability and the Human Condition Initiative in 2008, focusing on vulnerability theory as an alternative framework for state responsibility and social justice. She has received numerous accolades, including the Harry J. Kalven Jr. Prize and the Ruth Bader Ginsburg Lifetime Achievement Award. Fineman’s current teaching areas include family law, critical legal theory, and feminist jurisprudence.
