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Vulnerability & Inevitable Inequality

by Martha Albertson Fineman

“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.”

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