Vulnerability theory begins its engagement with law by asking a fundamental question: who is the subject of law? The legal subject is an all-inclusive and universal construct — the “idealized ordinary.” The laws we craft will reflect the assumed needs, capabilities, and characteristics of that contrived subject and will form the social institutions and relationships that meet those needs.
Our contemporary understanding of the legal subject is an impoverished one, built on an ideology that values liberty over equality and manipulates contractual concepts such as choice and consent to justify relations of exploitation. This fundamental structural inequality in our perception of the legal subject distorts and constrains the law’s analysis and the concepts it uses to organize our social world.
The Vulnerable Subject is a reconceptualized legal entity that is meant to replace the autonomous and independent liberal legal subject. When placed at the center of political and social endeavors, the Vulnerable Subject expands current ideas of state responsibility. It refocuses the relationship between the state and individuals upon the universal need for resilience, thereby legitimating claims for state responsibility to ensure meaningful access and opportunity to its institutions.
The inequality of resilience is at the heart of vulnerability theory because it turns our attention to society and social institutions. Human beings are not rendered more or less vulnerable because they have certain characteristics or are at various stages in their lives, but they do experience the world with differing levels of resilience. Assets or resources may take five forms: physical, human, social, ecological or environmental, and existential. Importantly, no one is born resilient. Rather, resilience is produced within and through institutions and relationships that confer privilege and power. Those institutions and relationships, whether deemed public or private, are at least partially defined and reinforced by law.
Resilience is measured only in part by an individual’s ability to survive or recover from harm or setbacks that inevitably occur over the life-course. Resilience has important positive implications for individual and social progress as well. Resilient individuals are able to form relationships, undertake transactions, take advantage of opportunities and take risks in life, confident that if they fail the challenge or meet unexpected obstacles, they are likely to have the means and ability to recover. In other words, resilience allows us to respond to life – to not only survive, but also to thrive within the circumstances in which we find ourselves.
The State and its Institutions: Distinguishing “Public” from “Private”
Vulnerability theory begins with the assertion that we will always have an active state. The state (or mechanisms of governance) in complex societies must assume a role in fashioning the rules and creating the legitimized social institutions and relationships in which all members of society must exist. The question, therefore, is not whether the state is active or not, but in whose interests does the state act and can that choice on the part of those who govern be justified.
Law is a primary product of state action, as are the institutions and relationships created by law. Entities such as firms, corporations, families, or churches are legitimated and given a status that confers on them benefits and protections by law. Their very content and meaning is defined through state processes. The social relationships they contain, such as that between employer/employee or child/parent, are also structured by and legitimated through law. In other words, the idea that institutions can naturally be divided and sorted according to the labels “private” and “public” is deeply flawed. At best we have public and quasi-public institutions, with the latter category being relatively more insulated against regulation. To the extent that these institutions and social arrangements are also distributing significant social goods and justifying privilege, they should be monitored by the state.
This need for monitoring is intensified by the realization that social institutions and arrangements should also be understood as vulnerable entities in and of themselves. We know that societal institutions are not consistently stable, even in the short term. They may fail in the wake of market fluctuations, changing international policies, institutional and political compromises, or human prejudices. Their effects on the individual and on society can change as conditions evolve. Even the most established institutions when viewed over time are potentially unstable and susceptible to challenges from both internal and external forces. Further, this institutional vulnerability is almost always obscured and those in control of institutions have a powerful interest in disclaiming the appearance of any vulnerability. Riddled with their own vulnerabilities, society’s institutions cannot eradicate, and often operate to exacerbate, our individual vulnerability. This present and persistent possibility gives rise to the demand that the state ultimately must be responsive to vulnerability.
Legal equality in the United States tends to focus on formal and procedural processes, and not on more substantive or outcome-sensitive measures of equality. Many programs focus on target groups, rather than provide universal benefits. The Vulnerability and the Human Condition Initiative is interested in finding ways to ensure meaningful and universal equality of access and opportunity that specifically takes into account the state's responsibility to address existing entrenched privilege and disadvantage, not just prohibited forms of discrimination.