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The Significance of Understanding Vulnerability: Ensuring Individual and Collective Well-Being

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International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique Aims and scope Submit manuscript

Abstract

Universal vulnerability provides an alternative to a rights-based and social contract model for state responsibility by contextualizing the individual and revealing the ways in which we are all inherently and dynamically dependent on society and others throughout the life-course. Beginning from the body as an ontological concept, vulnerability theory shows the fallacy of the current obsession in legal and political theory with rationality, individual liberty, and autonomy as measures for assessing social justice. It compels us to ask different questions and emphasize different principles and values than current liberal legal modes of reasoning about state responsibility.

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Notes

  1. See [1], pp. 1–23.

  2. See [2], pp. 10–11 [hereinafter Fineman, Anchoring Equality].

  3. The most recent example is the Covid-19 pandemic. There has been global resistance to vaccination, and wealthier countries have failed to adequately distribute effective vaccines to low- and middle-income countries. See [3]. A longer running example is the environmental crisis, where weather and climate disasters have continued to escalate over the last 40 years without adequate remedial measures. See [4].

  4. See, for example, [5].

  5. See [6].

  6. See, for example, [7]. Knowles discusses popular constructions of children, women, and minorities as vulnerable, pathological, and in a perpetual state of victimhood.

  7. A responsibility of the Law Commission of Ontario is to consider the effect of laws on older adults. In the Commission’s 2011 Interim Report, it recognizes the negative meaning attached to vulnerability as applied to the elderly. Likely as a result, the Commission’s “anti-ageist” approach seeks to minimize the differences between the elderly and others, rejecting generalizations as potentially stigmatizing. [8].

  8. For a trajectory of vulnerability theory development, see: [9], pp. 103–116; [10], pp. 51–62; [11], pp. 341–369; [12], pp. 133 − 49; [13], pp. 609–626; [14], pp. 1713-70; [15], pp. 251–275; [2]; [16], pp. 17–34; [17]; [18].

  9. The Oath Keepers are a right-wing anti-government extremist group who believe the federal government has been seized by a conspiracy to strip Americans of their liberties. They actively recruit military and law enforcement members [19]. The Proud Boys are a violent right-wing extremist group who espouse misogynistic, Islamophobic, transphobic and anti-immigration ideologies [20]. Sovereign Citizens are individuals who believe that the existing United States government is illegitimate. They retaliate against the government with “paper terrorism,” which “involves the use of fraudulent legal documents and filings, as well as the misuse of legitimate documents and filings, in order to intimidate, harass and coerce public officials, law enforcement officers and private citizens” [21].

  10. For example, politicians use arguments of liberty, equality, and contract in drafting the legal terms and consequences of employment as primarily of private concern. See [22]. The same principles are used to support the organization of corporate relationships so as to thwart regulations and oversight.

  11. See [16], pp. 28–32.

  12. On “rule of law,” see [23]. On “No One Is Above the Law,” House speaker Nancy Pelosi directed the phrase at then-President Donald Trump in light of his role in the attack on the Capitol [24]. On the equal protection doctrine, see [2], pp. 2–5.

  13. See generally [25].

  14. See [18], p. 52.

  15. See [16], pp. 19–20.

  16. For example, the Equal Pay Act of 1963 bans wage discrimination on the basis of sex. Title VII of the Civil Rights Act of 1964, as amended, bans employment discrimination on the basis of race, color, religion, sex, and national origin [26]. Affirmative action plans are also premised on the antidiscrimination model. They are perceived as temporary adjustments to the formal equality paradigm necessitated by past discrimination.

  17. Importantly, dependency is not a variation or example of vulnerability, but the manifestation or realization of it, as explained in [16], pp. 15–16.

  18. Revelations of dependency are mostly punitive or stigmatized (as in the responses to single mothers needing assistance) or paternalistic and stigmatized (as in the responses to the “deserving” poor, such as children, individuals with disabilities, and the elderly) [14], p. 1713. See also [27], pp. 33–35.

  19. Significantly, vulnerability theory recognizes that no one is born resilient. Rather, resilience is acquired over time, within social institutions and relationships – institutions and relationships that are created by law and policy. In theorizing resilience, we consider the political, moral, and ethical implications of our understanding of what it means to be human: given our understanding of what it means to be human, what institutions, relationship and rules are required for the construction of a just society?

  20. The current political dogma distinguishes between “private” and “public” institutions. Meanwhile, liberal ideals of self-sufficiency and individual liberty justify guarding “private” institutions from state interference. This protection from state interference fails to recognize the public purpose of institutions such as the family or the market. In the case of the family, it is responsible for raising the next generation of citizens, as well as caretaking for those in old age. Public purpose denotes public responsibility. Instead, our laws are predicated on legal doctrines such as “family privacy” and “parental rights” that dissuade government participation. See [10], pp. 59–60.

  21. Dependency is deemed “inevitable” when applied to biological or developmental stages of life and “derivative” when considering the social arrangements inherent in caretaking. The theoretical insight is that caretakers need resources in order to undertake care for children, the ill, the elderly and so on, and are thus derivatively dependent. Society is structured in such a way as to make the private family the primary source of those resources, resulting in great inequalities, including that other societal institutions that benefited from care work are free to evade responsibility to accommodate or compensate caretakers in any way. See also [27], pp. 57–70.

  22. See [28].

  23. See [1], pp. 17–18; [9], p. 109.

  24. [29], p.8.

  25. See e.g. [28] for a discussion of the interplay between motherhood, social reproduction, the market and the social institution of the family, and policy responses.

  26. For example, religious institutions subsidize a large component of providing healthcare, education and other social services in the United States. In the absence of a responsive state’s provision of healthcare to all persons, market forces may create geographic zones where a religious hospital is the only healthcare provider, at the same time that religious hospitals may object to performing reproductive health procedures. See [25].

  27. See [30] (explaining that social identity is a concept believed to be dependent and fluid upon an individual’s position in society).

  28. See [12], p. 13.

  29. See [9], p. 11; see generally [22] (for the employment context).

  30. Certain forms of need are developmental and biological in nature, and are inherently dependent, like the relationship between children and their caretakers, structuring a relationship of inevitable inequality. [28], p.7.

  31. Taking the parent/child relationship as an example, parents have the responsibility for the welfare of their children and this social responsibility is complemented by the legal doctrines of parental rights and family privacy. See also [16], p. 18.

  32. These spheres of law determine the relationships and consequences between and among individuals interacting within society, often labeled “private” law. These laws recognize that individuals inevitably interact with one another and that such interactions may cause harm, establish expectations or reliance, or warrant the imposition of responsibility or obligation. The law defines both the obligations or duties incorporated into these relationships, as well as establishing the appropriate remedies should they be breached [16], p. 4.

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    Martha Albertson Fineman

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Fineman, M.A. The Significance of Understanding Vulnerability: Ensuring Individual and Collective Well-Being. Int J Semiot Law 36, 1371–1383 (2023). https://doi.org/10.1007/s11196-023-10021-2

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