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1. INTRODUCTION

The pandemic has shaken some of the long-standing assumptions underlying political complacency on the part of many people. This is particularly the case in the context of social-welfare policy in the United States, as well as in some other neoliberal democracies. While this public health crisis has many dimensions, of primary interest to vulnerability theory is the shift taking place in the way in which people view the appropriate role of government. In a recent FOX News Channel poll, US voters who indicated government should “lend them a hand” rather than “leave them alone,” rose from 37 percent in 2012 (it was 39 percent in 2016 when Donald Trump was elected US president) to 57 percent.[1] I expect that as the implications of the pandemic become even more manifest in the next months, the percentage will continue to climb. US citizens are learning what it means to have an intentionally ineffective state, ideologically reluctant to enact the mandates necessary to meet the demands of a public-health crisis that otherwise spins out of control.

Americans are not alone in underestimating both the necessity of law and its ubiquity, failing to recognize laws’ actual influence in their everyday lives (even when there is no pandemic). Most individuals take for granted the social institutions and relationships upon which they rely, institutions and relationships that form the background stability necessary for a functioning society. The United States is actually less institutionally stable in this regard than many of its peers. It has never had as robust a welfare state or as comprehensive and as supportive institutional structures as have its democratic political kin. The consequential shallowness of the ways in which we have designed and operationalized our social relationships and structures has rendered the United States more susceptible to the paralyzing effects of institutional failure or collapse. Over the past decades, the institutions that should have formed a foundation for security in health have been robbed of resources and denied political support under a political rhetoric privileging “efficiency,” in which privatization and personal responsibility are exulted and reified. State or collective action correspondingly has been vilified, undermined, and maligned in a rhetoric glorifying individual liberty, independence, self-sufficiency, and autonomy.

Vulnerability theory presents a different paradigm for thinking about the nature of the state and its social institutions and relationships, as well as a basis for defining state or collective responsibility, one that also moves us beyond the focus of either a human-rights analysis or a paradigm centred on equality and discrimination. Vulnerability theory is institutionally, rather than individually, focused. It begins by exploring the justification or legitimation for the existence of the state (or system of governance), rather than asserting the inherent value or worth of the individual.

Importantly, vulnerability theory is a legal/political theory in that it centres on the role and function of law and the institutions it constructs and maintains as the mechanism of state authority. Viewing law as central to the reproduction of society, vulnerability theory concedes the inevitability of law, as well as some form of governing authority, while also appreciating the potential of the state as a unique mechanism for the construction of a just society. While it is a critical theory, the recognition of the necessity for and inevitability of governance and law and the positive potential this represents distinguishes vulnerability theory from other “progressive” approaches that seem unable to move far beyond a focus on an oversimplistic notion of an abusive or punitive state.

2. LAW AND THE “IMAGINED ORDINARY” SUBJECT OF LAW

Law is a system of rules applicable to all and is fundamental to organizing human society. Laws both form the compulsory systems that govern the relationships we have with each other and define the relationship between the governing system and those who are governed. Law establishes and reflects generally shared principles, norms, and values.

Significantly, laws apply to everyone, whether we express that principle by maxims such as “rule of law,” sayings such as “no one is above the law,” or doctrines like “equal protection.” This principle of universality is central to law’s legitimacy and acceptance, as well as to claims of justice and fairness.

The comprehensive, all-encompassing nature of law mandates the construction of a universal legal subject, an imagined ordinary being around whom law and policy are crafted. This being is the human subject of law. Since the effectiveness, appropriateness, and justness of specific laws ultimately will be judged by how well they reflect and address the lived reality of real human beings, the authenticity and integrity of this invented being is crucial. As a result, defining this imagined ordinary human being—the subject of law—represents a fundamental challenge for legal and political theory.[2]

Vulnerability theory approaches this definitional task by positing two fundamental and related questions:

  • [1] “What does it mean to be human?”

  • [2] “Given our understanding of what it means to be human, what institutions, relationships, and rules are required for the construction of a just society?”

The first question is a descriptive or empirical question and in asking it we begin to define the legal subject. The second question is a normative or political question, asking for reflection on what is necessary to build a just and responsive state. This second question also falls within the domain of law. Law is the mechanism by which we construct and through which we maintain our social institutions and relationships.

In response to the first question—what does it mean to be human?—a vulnerability theorist would respond as follows, “To be human is to be vulnerable.” Vulnerability constitutes the human condition; human beings are universally, consistently, and constantly vulnerable. This understanding of vulnerability as universal is not where most discussions begin, however. In fact, vulnerability is often inserted as a substitute for weak, disadvantaged, discriminated against, helpless, marginalized, or oppressed.

3. VULNERABILITY

Most contemporary uses of the term vulnerability refer to a possibility of injury or harm arising due to the limitations or inherent deficits of our physical bodies. Human beings are deemed naturally defenceless in many circumstances, capable of being wounded or harmed. This is perhaps the most common understanding of vulnerability today. A variation of the body-as-deficient perspective views the body as vulnerable to corruption. Individual bodies may be degraded and weakened as the result of fate or chance. Others may be corrupted through individual choices or the assumption of risks. Vulnerability viewed as the possibility of bodily corruption introduces a mind/body split, along with the idea of individual choice.

In both of these instances, vulnerability theoretically applies to every human body. Significantly, however, the bodily manifestations of vulnerability are conceptualized as only specific possibilities—individual, intermittent, perhaps avoidable, a fall from grace. This suggests that human beings may have greater or lesser degrees of vulnerability, be more or less or only intermittently vulnerable, or perhaps even avoid the harmful consequences of vulnerability. The idea of vulnerability as the episodic potential impairment of individual bodies is rejected by vulnerability theory, which defines it as universal and constant. I come back to this distinction below.

However, there is a more problematic use of vulnerability, one not so easily rehabilitated for theoretical purposes. This second use of the term highlights certain demographic differences in bodies, associating them with distinct social, economic, or political disadvantages. Vulnerability in this category is plural and “contingent.” It is theorized not as universal, but as designated, individual, subjective, and mutable. It is frequently the product of social forces and biases and is often unjustly imposed.

This idea of distinct or special vulnerabilities is common in professional discourses, such as law and public health, where there are frequent references to specific “vulnerable populations.” Sometimes these populations are perceived as lacking in ability, capacity, or character. Quite often they are stigmatized as a result.

One conventional designation of vulnerable populations references select physical or mental health conditions. In this group are age-related groupings (the elderly or children) and also those deemed “disabled.” Other proclaimed distinct vulnerabilities are deemed situational or status related; some people or groups have been negatively affected by circumstances, including refugees, the poor, and the incarcerated. In addition, victims of prohibited discrimination or intentional mistreatment resulting in diminished economic, political, or social opportunities are often labelled as belonging to a vulnerable population. The designation is also applied to victims of destructive environmental forces, be these natural or contrived. The position of these “populations” as “vulnerable” is the basis for arguing that they deserve special legal and political consideration, some reparations for the diminished social, political, economic, or legal position they innocently occupy.

3.1. Vulnerability Theory

The fundamental realization of vulnerability theory is that the individuals and groups described as “vulnerable populations” should not be labelled vulnerable, nor should they be sequestered in discreet categories for the purposes of law and policy. This plea for their inclusion in a larger whole is not to deny that discrimination, harm, and relative disadvantage arising from all sorts of circumstances and situations exist. Nor is it to suggest that particular instances of harm should not be addressed by appropriate state action. Rather, it is an argument that “vulnerability” is the wrong concept to use to define and isolate these groups, or any other specific group, from the whole of humanity. Human vulnerability is universal and constant, inherent in the human condition.

The injuries should not be the occasion for separating the injured from others, but for recognizing the general, shared fragility of human wellbeing. The specific harms from targeted exclusion and marginalization justify distinct responses, which are appropriately guided by generally applicable remedial principles, including equal protection. Individual or group damages may be appropriate; so may affirmative action, emergency relief, or injunctions. However, the desire to remedy these specific harms should not obscure the recognition of the possibility of a different, more communal type of harm, one not necessarily linked to intentional or direct actions by others, nor aimed at a particular group in society.[3] Nor should the desire to remedy specific group harm eclipse the search for a coherent theoretical vision of state or collective responsibility for injuries that reach beyond discrimination and disaster. In other words, vulnerability theory argues that it is important to develop a universal social-justice project that reaches beyond specific oppressions and marginalization, one that considers state responsibility for injury or harm conceived as general and structural, not only individual or group based.[4]

To explain this further, I’ll return to the question of what it means to be human. Recall that there are two related concepts that are fundamental to understanding vulnerability as inherent in the human condition:

  • [1] We are embodied beings.

  • [2] The realities of the body necessitate that human beings will be embedded in social relationships and institutions throughout the life course.

The body as a theoretical concept must be understood as existing prior to the political, the ethical, or the moral. While the body is the basis for social arrangements, it does not dictate their specific forms.[5] The shape and form of social arrangements are not consistent across history, culture, geography, and so forth. Particular social institutions and relationships within societies have been constructed in a multiplicity of ways in response to a variety of historic and contemporary forces.

By contrast, the body in vulnerability theory is an ontological or anthropological concept, a fundamental reality, consistent over time, place, and space. Vulnerability is intrinsic to the body, actually indistinguishable from the body, and, therefore, an element of the ontological. Note that I am using “ontological” not to assert the existence of God or some supernatural creator or to refer to some inherent, abstract, endowed quality bestowed on the individual, such as “dignity.” Rather, I am arguing instrumentally for acceptance of a manifest logic of collective responsibility. This is an argument for a radical “ethics of care” as the foundation for governance, an argument that recognizes that human vulnerability provides the primary legitimating justification for the coercive ordering of human relationships and endeavors through law.[6] Under this logic, the failure to respond to social discord, injustice, or inequality would constitute a harm demanding governmental action and redress.

3.2. The Ontological Body

The body requires that we be communal and political beings. The body necessitates the creation of social units, be they called families, communities, civil society, nations, or international organizations. This unavoidable and indispensable social embeddedness is the foundation for an alternative to Western, liberal social-contract theory exemplified in the work of John Rawls, which is based on ideals of rationality and consent.[7] In other words, vulnerability theory is a theory of essential (not voluntary or consensual) social cohesion and reciprocity. It is based on the recognition and acceptance of human beings’ inevitable dependence on social relationships and institutions and the collective responsibility for those relationships and institutions that dependence entails.

When the current configuration of liberal legal theory does make a concession to the idea of social dependency, it does so in the context of the contingent categories discussed above, considering certain differences across society as requiring special or exceptional legal treatment due to the inappropriate actions of others or to understandable calamities. It is not the general human condition that gives rise to state responsibility to act, but the presence of a victim or sympathetic supplicant. This notion of remedial responsibility is where most legal, political, and theoretical attention has been centred: state responsiveness to the individual is defined and therefore confined by reference to equality, impermissible discrimination, and unique disadvantage. This differentiation among individuals is not the foundation for a comprehensive or coherent theory of state responsibility, but one limited by a fragmented legal subject in which vulnerability is viewed as exceptional. In addition, this approach implicitly sets up a binary, with “invulnerability” as the preferred and attainable status, also serving as the measure for those aspiring to full legal subjectivity.

Currently, the universal or ontological body is a largely neglected site of serious inquiry. As a result, the realities of the ontological body have largely been disregarded, which has had profound implications for our perception of justice, as well as deterred the development of a theory of collective or social responsibility. A limited view of the human condition has had consequences for defining the theoretical connection between the individual and the state. In vulnerability-theory terms, the impoverished notion of what it means to be human that underlies contemporary political and legal theory tolerates only a limited, constrained vision of appropriate state responsibility, encompassing only part of the lifespan and only some individuals when they are able to claim specific injury or harm. The rest are left to a largely privatized society, within a restrained state.

3.2.1. Embodiment, difference, and change

While the ontological body is universal, vulnerability theory must also account for undeniable differences among bodies. However, in ontological terms the relevant differences for vulnerability theory are those that are found within, not among, bodies—differences associated with developmental changes in the ontological body. The concept of the ontological body is and must be comprehensive, encompassing all possible variations in the body. It is theoretically important that it also be understood as cohesive and integrated, not fragmented into distinct entities. This means it is as important to incorporate different developmental stages into our construction of the ontological body as it is to include variations in capacity, physicality, ability, and so forth. The ontological body changes over time, inevitably evolving and declining.

The ontological body’s inescapable susceptibility to change is the core of our vulnerability:

Our bodies are inevitably and constantly susceptible to changes—both positive and negative, developmental, and episodic over the life course, and this has implications for our social well-being as well.[8]

This susceptibility to change applies to every human body and encompasses, but is not confined to, the possibility of harm or injury, of being wounded.

It is important to emphasize the bodily processes involving positive changes. Unlike the typical uses of vulnerability noted in section 2, which focused only on one moment in time in making comparisons across individuals, vulnerability theory adopts a life-course perspective, which inevitably also highlights positive developmental changes inherent in the ontological body’s intellectual, emotional, and physical evolution over time. So, while it is true that negative changes can arise from the passage of time or from events such as illness or accident or from environmental harms, it is important to realize that changes to the ontological body are both negative and positive.[9]

Significantly, from a public policy perspective, positive changes can be encouraged and negative changes deterred. Some specific changes may be predictable, such as those often associated with aging, which also provides the occasion (responsibility) for policy and program development. While some changes may be difficult to foresee and external to individual control, they can still be anticipated and addressed with forecasting and informed strategy.[10]

3.2.2. The Embedded Body

The most important insight of vulnerability theory is that we need to recognize a new legal subject, one that is more reflective of the realities inherent in the human condition. Prevailing legal, as well as political, theory ignores or contradicts the implications of vulnerability and, in doing so, only very narrowly defines the interests and legitimate province of the state. Law is not alone. The liberty-seeking reasonable man in law is also the rational actor in economics, the autonomous consenting being in ethics, and the competent rights holder, capable of pursuing and protecting his interests. These subjects as currently hypothesized are typically not concerned with dependency and vulnerability, but defined by abstract references to independence, self-sufficiency, liberty, and autonomy.

These subjects of theory are taken out of social relationships, which are the structures both in which we experience vulnerability and upon which we depend for the resources to ameliorate it. They are radically individualized entities, abandoned to legal tools and devices such as consent, contract, independence, self-sufficiency, self-reliance, and rights, which are woefully inadequate to address the inescapable and lifelong dependence on society and its institutions that our vulnerability produces. In particular, the realities of the ontological body are neglected in theories in which the state is considered appropriately restrained and limited and social institutions and relationships are deemed a “private,” rather than a collective responsibility. The abdication of state responsibility attending this designation of “private” also can create a decisive social harm. Such harm could be labelled “profound neglect” or “callous indifference,” but abandonment of the implications of the ontological body goes beyond mere inattention. It is a violation of the very rationale for the existence of governance and law, a rejection of the principles that legitimate constituting the state in the first instance.

Recall here the second question that vulnerability theory asks us to consider—what are the legal, institutional implications of our understanding of what it means to be human? What is the purpose of, the rationale for the state? This brings us to the concept of dependency and its relationship to state responsibility and constitutional legitimacy.

3.3 Dependency

In vulnerability theory, dependency is not a variation or example of vulnerability but the unavoidable manifestation of it. The fundamental reality is that the physical and developmental realities of our bodies render us inescapably dependent on social relationships and institutions. These relationships and structures provide the resources that cumulatively give us the ability to adapt, adjust, survive, even thrive, given our vulnerability. In vulnerability theory we call this ability “resilience.”

Importantly, no one is born resilient. Rather, resilience is acquired over time, within social institutions and relationships. Therefore, dependency on institutions and relationships is not deviant or exceptional. Like vulnerability, dependency is inherent to the human condition. However, it is important to distinguish between dependency and vulnerability. They are often confused but are different in important ways that underscore why it is imperative not to theoretically confuse the body (embodiment) and the social or institutional (embeddedness) it necessitates. Understanding the relationship between the two requires us to leave behind the universality of vulnerability and consider the particularity of dependence.

Vulnerability is universal and constant, located in the body. Dependency, while constant, also varies and fluctuates over time and in terms of the need for connection to specific social institutions and relationships. For example, because we are embodied beings, we are inevitably dependent on care from within social institutions and on relationships to provide that care—we are inevitably dependent. This is most evident in infancy, where the family is the social institution primarily responsible for our care. Families and caretakers are dependent on arrangements in the workplace and on the welfare state, but also on the healthcare system, financial industry, the market, the employment system, and so on. In other words, there are two related sites from which to assess dependence: the individual and the institutional (which includes the derivative dependency that may be associated with social identities[11]).

From the perspective of the inevitably dependent individual—the one initially needing care—the birth family recedes, and other institutions typically become more prominent later in life when the need for care arises only occasionally, such as when we are injured, ill, or disabled. In other words, individual dependence on specific institutional arrangements, like the family, can be thought of as episodic, alterable, and circumstantial. However, it is important to recognize and theoretically address the reality that dependency on some set of social institutions and relationships is inevitable and ongoing for everyone throughout life.

Vulnerability theory urges that the individual always be placed within institutional contexts as we advocate law and policy. In addition, we must recognize that these institutions are complex, and their relationship with each other symbiotic. In order to effectively provide resilience, they must be designed to work together. The family and the educational system will determine the success in later encounters with the employment and political systems, all of which will have implications for the ability to form one’s own family, as well as for wellbeing in retirement and old age. Social institutions ideally operate both simultaneously and sequentially to produce resilience over the life course.

4. CONCLUSION

Vulnerability theory begins by presenting the vulnerable subject as the only appropriate object of law and policy. A vulnerable legal subject incorporates the realities of the ontological body and its life-long dependence on social institutions and relationships into a theory of essential (not voluntarily or consensual) social cohesion and reciprocity in which the state (or governing system) has the responsibility to see that these vital social institutions and relationships operate justly.

Vulnerability theory rejects the fragmenting of the ontological body into various populations, an all-too-common practice that has significant public health and political implications. While the official responses to the pandemic did not only focus on specific populations and targeted the population as a whole, it became clear that specific populations raised specific concerns. Official bodies often emphasized those particularized concerns specifically, after giving the universal guidelines. This reference to distinct vulnerable populations, differentiating some individuals from others, was evident in the very first official responses to the coronavirus pandemic. An emphasis on specific populations (for example, the elderly) can distort analysis of the real extent and nature of the threat that the virus presented, which can also narrowly direct policy. Ironically, even as the cumulative totals of assorted “vulnerable populations” expanded from the elderly to those with underlying conditions to members of racial and ethnic minorities and approached the totality of the national population, those individuals left out of a vulnerable-population designation may feel free to ignore recommendations for distancing, masking, and so on.[12] Rather than seeing themselves as part of a vulnerable humanity, the danger is that some individuals considered themselves distinctly differently vulnerable, or perhaps even invulnerable.[13]

Accepting vulnerability and asking the question of what the realities of the body mean for how we must structure social institutions and relationships so that they operate justly recognizes not only the indispensability of institutions, but also the necessity or inevitability of the need for authority over them to achieve that end. That authority (and the responsibility it entails) is held by the governing entity given the power of legitimate coercion (the “state” in vulnerability theory). It is important to highlight the fact that this governing entity is always active, always acting through law, even though some would vigorously deny this in an effort to curtail and diminish the scope of ultimate state responsibility for the status quo.

Law inevitably shapes and directs the form and consequences of social institutions, such as those that constitute the family, the market, and financial, healthcare, and other systems, besides defining the nature and shape of the relationships within them.[14] Even if law is not actively engaged at any particular point in time, its past engagement affects the present and its present “inaction” reflects a preference or, perhaps, an active negation of the responsibility to act.

We should be asking, in whose interests do these intuitions and relationships as currently constituted act? And, if we want a more just society, we must also ask, in whose interests should they act? We need rules and structures that are responsive to the social implications of ontological vulnerability—to a vulnerable legal subject. What values and objectives should inform those rules and structures? These questions are brought to the fore when we apply a vulnerability analysis.