Anchoring Equality in the
Human Condition

The concept of vulnerability
Martha A. Fineman, Robert W. Woodruff Professor of Law


 

Vol. 11 No. 4
February/March 2009

Return to Contents


Lessons from Liberia
Reconsidering international development, scholarship, and engagement

“The theoretical frameworks and principles of practice that have guided development activities for the past fifty years have not yielded the intended outcomes.”

To go into a post-conflict state that is wrestling with all of this in real time with real-world consequences, was a compelling opportunity. . . . I didn’t have to change who I was to be relevant.”


Anchoring Equality in the Human Condition
The concept of vulnerability


Dhondup’s Wisdom
Teaching and learning from Tibetan Buddhist monks and nuns


Emory University Strategic Plan Update
What is happening and why we should care


Endnotes

For centuries, the concept of “equality” in Western thought has been associated with John Locke’s philosophy of liberal individualism and the creation of the liberal subject. In this model, all human beings are by nature free and endowed with the same inalienable rights. Although this vision of equality has inherent radical potential, in the United States today we have come to understand “equality” narrowly as the requirement of sameness of treatment, a formal anti-discrimination mandate primarily enforced through the courts. We all know the litany of protected categories found in the equal protection doctrine: race, sex, religion, national origin, and so on.

Our current understanding of equality has been shaped in part by the twentieth-century history of the use of the equal protection doctrine as a tool to fight blatant forms of discrimination focused on race, sex, and ethnicity. In particular, feminist legal reformers during the latter part of the century were suspicious of any difference in treatment, even if it was designed to favor women.

The problem with this formal model is that “equality” is reduced to sameness of treatment or a prohibition on discrimination. Formal equality leaves undisturbed—and may even serve to validate—existing institutional arrangements that privilege some and disadvantage others. It does not provide a framework for challenging existing allocations of resources and power, and it also fails to disrupt persistent forms of inequality. If we look at American society, we see a long and growing list of material and social inequalities; we have no guarantee of basic social goods such as food, housing, and health care, and we have a network of dominant economic and political systems that not only tolerate but justify grossly unequal distributions of wealth, power, and opportunity. It is as though existing material, cultural, and social imbalances are the product of natural forces and beyond the ability of the law to rectify.

Far more representative of actual lived experience and the human condition, the concept of vulnerability is not only focused on discrimination against defined groups but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions. The vulnerable subject can be used to redefine and expand current ideas about state responsibility toward individuals and institutions.

Defining vulnerability

In discussions of public responsibility, the concept of vulnerability is sometimes used to define groups of fledgling or stigmatized subjects, designated as “populations.” Vulnerability is typically associated with victimhood, deprivation, dependency, or pathology. For example, public health discourse refers to “vulnerable populations,” such as those infected with HIV-AIDS. People living in poverty or confined in prisons or other state institutions are often labeled as vulnerable populations. Children and the elderly are examples of more sympathetic vulnerable populations.

In contrast, I want to claim the term “vulnerable” for its potential in describing a universal, inevitable, enduring aspect of the human condition that must be at the heart of our concept of social and state responsibility. Vulnerability can be a powerful conceptual tool to define the state’s obligation to ensure a richer, more robust guarantee of equality than the current equal protection model affords.

Vulnerability initially should be understood as arising from our embodiment, which carries with it the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional, or otherwise. Individuals can attempt to lessen the risk or mitigate the impact of such events, but they cannot eliminate their possibility. Understanding vulnerability begins with the realization that many such events are ultimately beyond human control.

Our embodied humanity carries with it the ever-constant possibility of dependency as a result of disease, epidemics, resistant viruses, or other biologically based catastrophes. Our bodies are also vulnerable to other forces in our physical environment: there is the constant possibility that we can be injured and undone by “natural” disasters such as flood, drought, famine, and fire. These are events beyond our individual control to prevent. Our bodily vulnerability is enhanced by the realization that should we succumb to illness or injury there may be accompanying economic and institutional harms as a result of disruption of existing relationships.

Because we are positioned differently within a web of economic and institutional relationships, our vulnerabilities range in magnitude and potential at the individual level. Undeniably universal, human vulnerability is also particular: it is experienced uniquely by each of us. This experience is greatly influenced by the quality and quantity of resources we possess or can command. Significantly, the realization that no individual can avoid vulnerability entirely spurs us to look to social institutions for assistance. Of course, society cannot eradicate our vulnerability either. Society, however, can and does mediate, compensate, and lessen our vulnerability through programs, institutions, and structures.

The vulnerable subject

If we understand the significance, universality, and constancy of vulnerability, then we grasp that politics, ethics, and law must be fashioned around a complete, comprehensive vision of the human experience if they are to meet the needs of real-life subjects. The legal metaphor built around the liberal subject is “contract.” Liberal subjects have the ability to negotiate contract terms—to assess their options and make rational choices. They consent to such agreements in the course of fulfilling society’s mandate that they assume personal responsibility for themselves and for their dependents. Privacy principles that restrain the state and its institutions from interfering with the liberal subjects’ entitlements to autonomy and liberty depend on this presumed competence and capability.

Vulnerability analysis, however, suggests that the vulnerable subject is a more accurate and complete universal figure to place at the heart of social policy. There have been many critiques of the liberal subject, most of which focus on autonomy. For instance, feminist scholars have scrutinized and criticized the ways in which dominant theory and popular politics idealize notions of independence, autonomy, and self-sufficiency that are empirically unrealistic and unrealizable. Some feminist critics have offered a model of interdependence in which the liberal subject is enmeshed in a web of relationships and perceived as dependent upon them.

A vulnerability critique builds on these insights, but it differs in several ways. Vulnerability is a more encompassing concept, and for that reason, analyses centered around vulnerability are more politically potent than those based on dependency. Because dependency is episodic and shifts in degree on an individual level for most of us, mainstream political and social theorists can and often do conveniently ignore it. In their hands, 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. In addition, society has historically dealt with dependency by relegating the burden of caretaking to the family, which is located within a zone of privacy, beyond the scope of state concern absent extraordinary family failures, such as abuse or neglect. Thus largely rendered invisible within the family, dependency is comfortably and mistakenly assumed to be adequately managed for the vast majority of people.

By contrast, if it is understood as a state of constant possibility of harm, vulnerability cannot be hidden. Further, while institutions such as the family may provide some shelter, they are unable to eliminate individual vulnerability and are themselves vulnerable structures susceptible to harm and change. Because vulnerability is ever-present and enduring, institutional as well as individual, it suggests a critique of dominant modes of thinking about inequality that is at once complementary to but more powerful than dependency. My argument is not for vulnerability to supplant dependency, for they each reveal different and important things. Rather, the assertion is that vulnerability analysis may ultimately prove more theoretically powerful.

In addition, the vulnerability perspective calls attention to another problematic characteristic of the liberal subject: s/he can only be presented as an adult. As such, the liberal subject stands not only outside of the passage of time, but also outside of human experience. The construction of the adult liberal subject captures only one possible developmental stage—the least vulnerable—from among the many possible stages an actual individual might pass through if s/he lives a “normal” lifespan. We must confront this foundational flaw in the liberal model if we are to develop legal and social policies that reflect the lived realities of human subjects.

The vulnerable subject approach does what the one-dimensional liberal subject approach cannot: it embodies the fact that human reality encompasses a wide range of differing and interdependent abilities over the span of a lifetime. The vulnerability approach recognizes that individuals are anchored at each end of their lives by dependency and the absence of capacity. Of course, between these ends, loss of capacity and dependence may also occur, temporarily for many and permanently for some as a result of disability or illness. Constant and variable throughout life, individual vulnerability encompasses not only damage that has been done in the past and speculative harms of the distant future but also the possibility of immediate harm.

We are beings who live with the ever-present possibility that our needs and circumstances will change. On an individual level, the concept of vulnerability (unlike that of liberal autonomy) captures this present potential for each of us to become dependent based upon our persistent susceptibility to misfortune and catastrophe.
Equality must be a universal resource, a radical guarantee that is a benefit for all. We must begin to think of the state’s commitment to equality as one rooted in an understanding of vulnerability and dependency, and that recognizes that autonomy is not a naturally occurring characteristic of the human condition but a product of social policy.

A cross-campus Vulnerability Studies Project (sponsored by the Race and Difference Strategic Initiative) was launched last semester. A reading group and a works-in-progress group each meet once a month. For more information, contact Martha Fineman (mlfinem@emory.edu) to be included on the mailing list.