Over the past decade, a new discourse of human vulnerability has emerged in socio-legal and critical studies, providing a novel lens through which to analyse law and state policy. This âvulnerability-theoryâ is rooted in the notion that, as humans, we all share an inherent vulnerability that is ultimately grounded in our embodied nature. As the theoryâs leading proponent, Professor Martha Fineman (2008, p. 9) argues, the human condition is susceptible to âthe ever-present possibility of harm and injury from mildly unfortunate to catastrophically devastating eventsâ. As a result of our embodiment, Fineman (2017, p. 134) asserts that we are also âdependent upon, and embedded within, social relationships and institutions throughout the life courseâ. Being vulnerable, Fineman argues, is a constant and unavoidable state and, try as we might, we can no more escape being vulnerable than we can escape our own bodies. Therefore, the theory does not seek to eliminate vulnerability (because such a thing would be impossible), but instead calls for a more responsive and engaged state, one that will acknowledge the reality of the embodied and embedded human condition and, through its various institutions, provide the resources, or resilience, necessary to reduce the risk of harm, rather than its current practice of stigmatising dependency, regarding it as a failure to attain autonomous personhood (Fineman 2010).
It is difficult to do justice in relatively few words to the full impact that this âvulnerability-turnâ has had on legal scholarship, both in the UK and globally. The past five Law and Society Association annual meetings have featured numerous paper sessions and roundtable discussions centred around vulnerability. Finemanâs own Vulnerability and the Human Condition Initiative at Emory University, USA, was founded in 2008, and organises symposiums, conferences, and discussions across the world. Thus, it is clear to see the theoryâs impact, uniting scholars across a range of socio-legal disciplines through the common thread of recognising vulnerability as a universal condition. This has led to a substantial reinvigoration and reconceptualisation of debates in a range of legal areas, including transgender rights (Dietz and Pearce 2020), disability law (Clough 2017), bioethics (Thomson 2018), and criminal justice (Dehaghani and Newman 2017).
This book is an expansion of, and contribution to, the existing scholarship on vulnerability. Using Finemanâs notion of universal vulnerability as a foundation, I build upon it by putting forward a new model of what I term relational vulnerability that I apply in the specific context of English lawâs treatment of unpaid work when performed in the context of the private married or unmarried family. In doing so, I also want to develop a more nuanced understanding of universal, embodied vulnerability, emphasising its inherently temporal nature, marked by both unpredictability and inevitability. My approach builds on Finemanâs notion of human relational and institutional embeddedness, exploring how the relational structures in which we are all inevitably situated can expose us to harms rather than providing resilience. The existing universal model of vulnerability has been accused of focusing excessively on vulnerability that is biological in origin, arising from the embodied human condition (see Mackenzie et al. 2014). By contrast, this bookâs context-specific theoretical approach distinguishes between vulnerability that occurs as a result of embodiment and is therefore unavoidable, and that arising from other sources, which is often preventable. I argue that it is not just our bodies that expose us to the risk of harm, but that additional disadvantages can also arise as a result of how the state and its institutions, including law, respond to our embodiment and relationality.
The setting for the book is the legal regulation of the private family and specifically English lawâs response to the various disadvantages that flow from gendered role specialisation during marriage or cohabitation. While there already exists substantial feminist literature on this topic (e.g., Thompson 2015; Barlow 2015; Garland 2015), the vulnerability lens allows me to examine the issues from a novel perspective and to take the debate in a new direction. I argue that the state and law, driven by increasingly neoliberal1 policies and motivations, structures the private family to function as a mask for the inevitable dependency-work that is necessary to sustain the human life course. This term, which has been employed by a number of feminist scholars (see e.g., Fineman 2000; Kittay 1999), is given a broad definition in this book, encompassing all forms of socially reproductive labour, including (but not limited to) caring for children and adults, providing the support necessary for adults to engage in the workforce, and performing the work necessary to produce and maintain the home as the locus of the private family . Dependency-workâs concealment within the family (where it is predominantly assigned to its female members) allows the state to promote an artificial, disembodied version of personhood, one that permits it to remain restrained and unresponsive to vulnerability. This comes at the direct expense of those who perform the work (termed âdependency-workersâ in this book), who are exposed to a range of avoidable harms throughout their lives.
While I argue that the relational vulnerability affecting dependency-workers exposes them to various preventable disadvantages, I also recognise that relational vulnerability is inextricably tied to the embodied âordinaryâ vulnerability that affects us all. The relational vulnerability I explore in this book arises because the state wishes to imagine that we are disembodied, atomistic, and invulnerable, and relies on hidden and unpaid labour to uphold this image. Legal and policy reform not only must address the harms currently suffered by dependency-workers but must also acknowledge the embodiment, fragility, and embedded relationality of humanity.
Being Vulnerable: The Inherent Human Condition
Discourses of vulnerability have historically been employed when advocating for special protections for identifiable groups thought to possess particular sensibilities, such as âthe elderlyâ, or âpersons with disabilitiesâ (Formosa 2014). For instance, Goodin (1985) calls for collective societal responsibility for protecting those that are especially vulnerable owing to their dependency on others. Equally, in other fields where a vulnerability discourse has traditionally been employed, including medicine, social psychology, and child protection, terms such as âvulnerable patientâ or âvulnerable childâ connote some special need or weakness that falls outside the expected norm. By instead emphasising vulnerability as a constant and shared, rather than extraordinary, state of being, Finemanâs universal model moves away from potentially negative connotations of victimhood (see Clough 2017). This demonstrates vulnerability theoryâs radical and transformative potential in a range of fields, encouraging a fundamental reordering of the state and its institutions, one that has the potential to achieve social justice on a substantially broader scale than the somewhat hollow call for anti-discrimination measures for marginalised âvulnerable groupsâ, which rests on the assumption that the norm is invulnerability (Fineman 2012).
Vulnerability theory criticises and challenges the problematic and flawed conceptions of personhood proffered by classical liberal legal and philosophical theories, which underpin modern, increasingly neoliberal, state policies. It argues that these are modelled on a hypothetical autonomous liberal subject that is self-sufficient, rational, and disembodied (Barclay 2000; Grear 2011). In very generalised terms, the liberal legal and political theories that vulnerability theory critiques are based on the assertion that humans possess innate free will and inner moral agency, which the state has a duty to protect. Examples of this include Kantâs (1996) theory of internal moral law, Rawlsâ (1971) theory of justice, Razâs (1986) notion of liberal perfectionism, and Dworkinâs (1988) theory of individual freedom. From a critical feminist perspective, these theories promote a problematic and unrealistic version of personhood that struggles to explain relationships of affection, dependency, and care. Liberal theories of personhood fail to acknowledge that, in intimate and familial unions, people frequently make decisions that do not appear to be in their own interests, motivated or dictated by their relational connections. Liberal theoryâs lack of engagement with relationality sometimes depicts these decisions as indicating an absence of rationality or autonomy on the part of the decision maker, for example in the case law governing the doctrine of undue influence in contract law, where dependency on another person can be viewed as evidence of lack of free will (see Auchmuty 2002). Liberal and neoliberal accounts tend to pathologise vulnerability and dependency as weaknesses, symbolic of a failure to attain autonomous personhood (Chandler and Reid 2016). Questions of relationality, affection, and emotion are thought to lie beyond legal and state concern and are instead consigned to an imagined âprivate realmâ, into which the state does not interfere (OâDonovan 1985).
Vulnerability theorists call for the state to abandon its reliance on liberal versions of personhood, moving towards a âresponsive stateâ, which is one that:
Recognises that it and the institutions it brings into being through law are the mean and mechanisms whereby individuals accumulate the resilience or resources that they need to confront the social, material and practical implications of vulnerability (Fineman 2013, p. 17)
The idea of the responsive state represents a radical departure from the liberal models of law and citizenship that regard state power as potentially harmful to the expression of individual autonomy (see, e.g., Mill 1869). Liberal theories idealise a minimalist or ânight-watchmanâ state, whose role is restricted to upholding individual freedoms but does not seek to interfere further i...