Equality Theory: Equality Is Not Always Just

Martha Albertson Fineman

Robert W. Woodruff Professor of Law

BA, Temple University, 1971

JD, University of Chicago, 1975

Scholarly interests: equality theory, family law, feminist legal theory, sexuality and the law, vulnerability theory, critical theory, legal regulation of intimacy

Full profile: bit.ly/MAFineman

Professor Fineman is an internationally recognized authority on family law and feminist jurisprudence. Prior to joining Emory Law in 2004 she taught at the University of Wisconsin, Columbia University, and Cornell Law School, where she held the Dorothea Clarke Professorship - the nation’s first endowed chair in feminist jurisprudence. In 1984, she founded the Feminism and Legal Theory (FLT) Project, and in 2008, the Vulnerability and the Human Condition Initiative (VHC) emerged from that research. As director, Fineman organizes international academic workshops where scholars engage in the concepts of vulnerability, resilience, and a responsive state to construct a universal approach to address the human condition. Fineman’s research examines the legal regulation of family and intimacy, and the implications of universal dependency and vulnerability. Her books include The Autonomy Myth: A Theory of Dependency; The Neutered Mother, and The Sexual Family and other Twentieth Century Tragedies; and The Illusion of Equality: The Rhetoric and Reality of Divorce Reform. Her dozens of journal articles include “The Vulnerable Subject: Anchoring Equality in the Human Condition,” the basis for her 2013 book, Vulnerability: Reflections on a New Ethical Foundation for Law and Politics. Fineman is a Life Fellow of the American Bar Foundation and has received the Harry J. Kalven Jr. Prize, the Ruth Bader Ginsburg Lifetime Achievement Award, and the Miriam M. Netter ’72 Stoneman Award.

Selected Publications

Vulnerability and Social Justice, 53 Valparaiso Law Review (2019)

The Limits of Equality: Vulnerability and Inevitable Inequality, in Research Handbook on Feminism Jurisprudence, (Robin West & Cynthia G.Bowman eds., 2019)

Vulnerability and the Legal Organization of Work (Routledge 2018) (with Jonathan W. Fineman)

Injury in the Unresponsive State: Writing the Vulnerable Subject into Neo-Liberal Legal Culture, in Injury and Injustice: The Cultural Politics of Harm and Redress, (Anne Bloom, David M. Engel & Michael McCann eds., 2018)

Privatization, Vulnerability, and Social Responsibility: A Comparative Perspective(with Ulrika Andersson & Titti Mattsson eds., Routledge 2017)

Care and Gender, in Reassembling Motherhood: Procreation and Care in A Globalized World in the 21st Century, (Yasmine Ergas, Jane Jenson & Sonya Michel eds., 2017)

Vulnerability and Inevitable Inequality

by Martha Albertson Fineman (excerpt)

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 differences 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 development 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 struggling 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 desirably, 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 marketplace) are structured and functioning.

1. Introduction

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 vulnerability in which the state is theorized as the legitimate governing entity and is tasked with a responsibility to establish and monitor social institutions and relationships that facilitate the acquisition of individual and social resilience. The theory is based on a descriptive 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 theory are found in the assertion that state policy and law should be responsive to human vulnerability. However, the call for a responsive state does not dictate the form responses should take, only that they reflect the reality of human vulnerability. Thus, this approach to law and policy allows for the adaptation of solutions appropriate to differing legal structures and political cultures.

Vulnerability theory provides a template with which to refocus critical attention, raising new questions and challenging established assumptions about individual and state responsibility and the role of law, as well as allowing us to address social relationships of inevitable 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.

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. . . .

In considering human vulnerability it is significant that, as embodied beings, individual humans find themselves dependent upon, and embedded within, social relationships and institutions throughout the life-course. While the institutions and relationships upon which any individual relies will vary over time and in response to changes in embodiment and social contexts, the fact that we require some set of social relationships and institutional structure remains constant. A vulnerability 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 relationships and institutions.

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 circumstances of those individuals considered equals. This approach inevitably generates suspicion of unequal or differential treatment absent past discrimination or present stereotyping, particularly if practiced by the state. Even in its substantive form, assessments of equality focus on specific individuals and operate to consider and compare social positions or injuries at a particular 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 differing 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, situations of inevitable inequality are typically handled in law and policy either by imposing a fabricated equivalence between the individuals or by declaring that an equality mandate does not apply because the individuals to be compared are positioned differently. An example of the imposition of fictitious equality, in response to inevitable inequality, is evident in situations involving parties who occupy obviously unequal bargaining positions, like the contract 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 responsibility for ensuring equitable treatment for differently positioned individuals is minimized within the overriding framework of equality. . . .

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 recognized as the primal human condition. As embodied beings, we are universally and individually 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 new 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 invulnerability - no conclusive way to prevent or avoid change.

For the most part, human vulnerability has been ignored or marginalized 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 independence, buoyed by an insistence that only a severely restrained state can be an economically responsible one. When the term vulnerability is used, it is typically (and inaccurately) attributed to only some individuals or groups, who are referred to as “vulnerable populations.” It is also used as a basis for comparison: some people are viewed as more or less vulnerable, or as differently or uniquely vulnerable. 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 arrangements 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 provision 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 family, 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 institutions 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 legal subject to make it more reflective of the actual human experience. It requires that we recognize the ways in which power and privilege are conferred through the operation of societal institutions, relationships and the creation of social identities, sometimes inequitably. Because law should recognize, respond to, and, perhaps, redirect unjustified inequality, the critical issue must be whether the balance of power struck by law was warranted.

Social identities are manifested within institutions and do not manifestly reflect individual 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 they age and expand their interaction with different social institutions and relationships (from child to teenager to adult - from familyto school to  workplace). General idealized 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.

Idealized 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 relatively stable for extended periods of time. Proposed changes in, or widespread deviations from, these idealized 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 recognizes 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.

— from Vulnerability and Inevitable Inequality, 4 Oslo Law Review 133 (2017)

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