Vulnerability as a Category of Historical Analysis: Initial Thoughts in Tribute to Martha Albertson Fineman

By Dinner, Deborah | Emory Law Journal, January 1, 2018 | Go to article overview

Vulnerability as a Category of Historical Analysis: Initial Thoughts in Tribute to Martha Albertson Fineman


Dinner, Deborah, Emory Law Journal


INTRODUCTION

Take a closer look at a physical copy of Martha Albertson Fineman's recent book series and you will notice that the cover art is a print of one of Martha's own etchings.1 The print shows two faces, one staring intently at the viewer and the other looking to the side. The faces are not isolated; rather, they are connected by intersecting and overlapping spherical lines. Trees and leaves encircle and, perhaps, protect the faces. For me, the emotions evoked by the etchings include curiosity, warmth, forthrightness, creativity, and an awareness of relationship to other people and to the environment. Martha possesses these qualities, as a scholar and colleague. As an artistic medium, furthermore, etchings draw viewers' attention to negative spaces as well as positive lines. This is the quality of Martha's scholarship that is, for me, most inspiring and generative. Martha has a knack for rendering visible the negative spaces-the dimensions of law and social life that others are missing.

Over the last decade, Professor Fineman has turned her attention to one such negative space: vulnerability in the human condition. In 2008, she published The Vulnerable Subject: Anchoring Equality in the Human Condition2 This essay, since cited by more than 150 law-review articles and countless book chapters, presented Fineman's critique of the limits of antidiscrimination law and argued that recognition of universal human vulnerability should serve as the ethical foundation for a more responsive state.3 In the last decade, vulnerability theory has evolved considerably, but I will start my remarks with a brief overview of this landmark essay.

Fineman's piece starts with a familiar critique: that the formal conception of equality in U.S. antidiscrimination law-same treatment for similarly situated individuals-has proved wholly inadequate either to challenge structures of subordination or to remedy socioeconomic inequality.4 She draws attention to the way in which the rhetorical prominence of antidiscrimination, as our legal culture's dominant frame for justice and injustice, reinforces the perceived legitimacy of a restrained state. Putting a twist on our understanding of the public-private divide, she argues that the contemporary state has not withered. Rather, the state refrains from using its formidable coercive authority to guarantee substantive equality.5

The essay then proceeds to chart wholly new territory in legal scholarship: universal and constant human vulnerability. Of crucial importance, Fineman departs from the popular conception of vulnerability as signaling the "victimhood, deprivation, dependency, or pathology" of particular groups.6 Rather, the essay advances the radical notion that vulnerability is a universal and constant aspect of the condition.7 Vulnerability, she explains, "should be understood as arising from our embodiment," which carries with it the capacity for "harm, injury, and misfortune . . . whether accidental, intentional, or otherwise."8 Vulnerability also stems from individuals' differential location in social, economic, and political institutions. For this reason, while vulnerability is universal, Fineman reasons, its manifestations in specific individuals' experiences are particular and varying.

In my own view, Fineman's thoughts about the simultaneous universality and particularity of vulnerability offer fruitful terrain for further scholarship. Scholars may explore the points of overlap and departure between Fineman's theory and critical-race and feminist theories. The latter view vulnerability as institutionally produced and, generally, challenge universalist theories as insufficiently attentive to the construction and deployment of power. It seems that these two approaches to vulnerability may be compatible-a view that should not be surprising given the long and profound role Fineman has played in the development of critical theory within the legal academy. Existential vulnerability, if understood as particular in its manifestation, may support theoretical insights into the institutional production of vulnerability. …

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