This post opens a symposium on vulnerability theory and LPE. Read the rest of the symposium here.
At first glance, the pledge by Pfizer, Moderna, and other drug companies to prioritize impoverished countries for vaccinations may seem merely benevolent. However, this discretionary corporate act demonstrates the extent to which law does not hold public and private power responsible for supporting human well-being, even in the fight against a global pandemic that is taking the lives of millions around the world.
More than ever before, the crises of our times expose the shortcomings in the legal conceptualization of the human condition. The liberal idealization of an autonomous individual subject who is self-sufficient, rather than reliant on society, provides flawed tools for addressing systemic problems. These crises—from COVID and climate collapse, to highly concentrated and unequal political economic power—have been poorly managed by neoliberal policies that magnify the distorted, autonomous view of the human condition. What’s needed urgently is a more realistic legal understanding of human existence, one which can better support the structural changes necessary for most humans to survive and thrive.
Therefore, over the next two weeks, the LPE Blog introduces a particularly effective way to begin ridding the law of the tyranny of neoliberalism: the vulnerability theory.
The brainchild of legal theorist Martha Fineman, this theory assigns the state and its legal system a more demanding role in building and securing a just society. By changing the legal subject to the inherently vulnerable human, it provides distinct ontological grounds for this affirmative public responsibility. The theory’s name highlights its key descriptive insight that vulnerability is universal: all humans are inevitably bound by change and loss by virtue of their embodiment. Rather than a feature reserved for special populations or unfortunate circumstances, vulnerability is an essential part of the human condition.
Contra neoliberalism, vulnerability theory posits that no one is autonomous or independent enough to thrive alone. Instead, people’s survival, accomplishments, and happiness continuously depend on resources offered by the state via its laws and the social structures those laws in turn create. The theory terms these resources resilience, emphasizing that while we can’t escape vulnerability, our ability to cope with it, as well as our individual and collective well-being, hinge on the levels of resilience available to us. To illustrate, no one can avoid sickness, but recovery hinges on access to quality health services.
Normatively, the vulnerability theory calls to replace the neoliberal idea of the excessive state with what it defines as “the responsive state”—a state that carries ongoing responsibility to respond to human vulnerability by building and maintaining its members’ resilience. Further, because “it does not seek equality, but equity,” the theory does not focus on any particular group in society. Instead, it generally requires the state to ensure justice by creating and sustaining a fair allocation of resilience amongst its diversely situated members and institutions.
This blog symposium begins a conversation between vulnerability theory and LPE. Martha McCluskey will explain how vulnerability theory counters the neoliberal logic that uses liberal ideals of individual autonomy to delegitimize democracy, human rights, and equality. Hila Keren will develop the concept of “resilience drainage” to explain how the laws of the market, namely contract law and corporate law, are currently being used to intentionally enhance inequality. And Ronit Kedar and Ofer Sitbon will argue that vulnerability analysis exposes the ways in which current corporate jurisprudence is blind to the allocation of resilience through law. Our hope is that this symposium will show how vulnerability theory can enhance LPE analysis.
