Understanding Vulnerability Theory

Western systems of law and justice have inherited a political liberalism that imagines a ‘liberal legal subject’ as the ideal citizen – this subject is an autonomous, independent and fully-functioning adult, who inhabits a world defined by individual, not societal, responsibility, where state intervention or regulation is perceived as a violation of his liberty. Social arrangements and institutions with significant effects on everyone’s lives, such as the family, are deemed “private” and their operation relegated to ideologies of meritocracy and the free market. Vulnerability theory challenges the dominance of this static and individualized legal subject, and argues for the recognition of actual human lives as socially and materially dynamic.

Vulnerability theory understands human beings as embodied creatures who are inexorably embedded in social relationships and institutions. By rejecting the limited subjectivity constructed in the liberal imagination, we acknowledge the lived complexity of the ‘vulnerable legal subject’ – a political vision of how the human condition is profoundly shaped by an inherent and constant state of vulnerability from birth until death. Incorporating the inevitability of change into the political project of conceiving the legal subject creates a complex subjectivity to guide the way we define individual and state responsibilities. It provides a basis to question and critique current allocations of responsibility for individual and societal wellbeing across the individual, the state, and its institutions.

Vulnerability theory takes seriously the political and legal implications of the fact that we live within a fragile materiality. We are, all of us, vulnerable. Sometimes our vulnerability is realized in the form of dependency on others for care, cooperation, or assistance. Sometimes it is realized in our dependency on social arrangements, such as the family or the market or economy. But, whether realized or latent, this vulnerability is universal and constant – an essential and inexorable aspect of the human condition.

Importantly, the primary emphasis of vulnerability theory is not our human vulnerability, although the theory begins there. When vulnerability is understood as a universal constant, the task then becomes to explore the strategies by which we can mitigate this vulnerability. No one is born resilient.

This insight about the social production of resilience allows us to argue for a more responsive state. The state is responsive when it recognizes the universality and constancy of vulnerability, as well as the need for providing mechanisms for building resilience. It is responsive when it acts to monitor and adjust institutions and relationships when they do not function in a just manner. At a minimum, the role of law in structuring societal relationships and institutions means that the state should bear responsibility to ensure that they are justly structured and fairly functioning. An appreciation of the role of social institutions and relationships in producing resilience is central to vulnerability theory’s project of building an ethical framework for confronting neoliberalism with its emphasis on individual autonomy and personal responsibility.

In contrast to the liberal vision, vulnerability theory recognizes the many ways in which societal relationships and institutions are shaped, reinforced, and modified in and through law, and argues that the state is always actively involved in the allocation, preservation, or maintenance of privilege and disadvantage.  To a great extent, it is a political decision whether any social arrangement or relationship is ultimately viewed as arising from and resonating within either the public (collective) or the private (individual) domain. Realizing our reliance on institutions throughout our lives also requires that we recognize that as human creations, institutions are also, although differently, vulnerable. They can cause harm and create situations that exacerbate or exploit human vulnerability. However, institutions, especially those that are monitored effectively and fairly, can also mediate, compensate for, and mitigate vulnerability.  

What Vulnerability is NOT

The approach taken in developing this theory employs the term vulnerability as a “term of art.” Its choice reflects the empirical and experiential reality that, unlike the concepts with which it is often confused, there is no contradictory or dichotomous pairing for vulnerability. There is no position of human invulnerability in which we are not susceptible to change in our physical and social well-being.

When using a vulnerability framework to consider a social problem or issue, the designation of ‘vulnerability’ is not simply a substitute term for ‘dependency on care.’ Nor is it or its theoretical and conceptual potential exhausted in concepts such as weakness, fragility, precariousness, or being “at-risk” (these are terms usually found in dualistic combinations – weakness/strength; precarious/stable and so on). As we know intuitively and experientially, there is no position of invulnerability – there is only resilience.

Vulnerability is not just another way of talking about discrimination or signaling disadvantage. Vulnerability is not merely one among many possible “identities” traditionally adopted or assigned in arguing for equality and civil and political rights. In addition, recognition of vulnerability does not reflect or assert the absence or impossibility of agency – rather, it recognizes that agency, in the form of resilience, is socially produced over the life-course and is limited and constrained by the resources and relationships available to a specific individual. Vulnerability theory asserts that agency or autonomy – like the concept of resilience (and unlike vulnerability) ­– should always be understood as particular, partial, and contextual.

Furthermore, theorizing vulnerability as both universal and constant means that it should not be used as a variable and/or comparative concept. No individual or group should be considered more or less vulnerable, uniquely vulnerable, or specifically or especially vulnerable. Rather, we can think about spaces, places, and positions or relationships as indicators of the proximity of, exposure to, or probability for, vulnerability to be manifested or realized in the form of dependency. By the same token, we can think of these same spaces, places, and positions as sites for the production of resilience – these are and should be thought of as sites of state responsibility.

This last point underscores the theoretical point that human vulnerability is not socially produced or created. Certain social situations may reveal our vulnerability in ways that are hard to ignore. So, while we may recognize that childhood is a stage in which our shared vulnerability is most evident, it is theoretically important to always refer to the universal in the first instance. We refer to the vulnerable subject as a child and do not position childhood as creating a somehow uniquely vulnerable subgroup of beings – a “vulnerable population.” In the same way, we do not think of the vulnerable worker (which some might use to distinguish some categories of workers from others), but focus on the situation of the vulnerable subject at work or as a worker.

In other words, vulnerability is the constant aspect of the human condition, present throughout our lives and in all social circumstances. We are not rendered more or less vulnerable because of certain characteristics or status or stages (even as children), but we are more or less resilient. That inequality of resilience is what is often produced within and through social institutions and relationships of privilege defined and reinforced by law. Similarly, we can talk of different probabilities that vulnerability will be realized in the form of dependency on others or institutions. This could take the form of risk assessment, with the realization that the increased risk was not located within the individual, but in the social and institutional contexts in which he or she was located. 

The legal and political organization and structuring of these vital social institutions often provokes political disagreement and always presents significant policy choices. But these disagreements and choices should be confronted and decisions made, not obscured by a rhetoric seeped in individualism, independence, autonomy, and choice that ignores how society and its institutions actually work – embedded within webs of relationships. The conceptual pairing of institutional relationships, such as employer/ employee; parent/child; and corporation/shareholder, should be examined and understood as examples of interlocking and overlapping legally shaped identities in need of constant attention and reexamination in a state responsive to human vulnerability and attentive to social justice.

A vulnerability approach does not mean that different treatment, even the conferral of privilege or advantage, is never warranted. It does mean that if the state confers or tolerates institutional conferral of privilege or advantage, an affirmative obligation exists to provide justification for the disparate circumstances. Privileging must be both transparent and explained. This type of process would certainly change political discourse and the terms under which legislators and legislation are judged. Vulnerability analysis can be thought of as defining what constitutes ethical political and legislative behavior. It is an attempt to articulate a more self-conscious and aware egalitarian political culture, one that more robustly adheres to the promise of equality of opportunity. This critical perspective focuses on institutions and their operation and is central to vulnerability theory’s project of building an ethical framework with which to confront neoliberalism and argue for a state that is responsive to human vulnerability.