Vulnerability and Inevitable Inequality

1.1 Gender Equality in Context: Family

The series of legal events that initially shaped my critique of equality included the no-fault divorce ‘revolution’ and subsequent reforms of family law and the civil rights movement. These social movements created political pressure that led to the creation of non-discrimination legislation that (at least formally) mandated gender neutrality in the interest of gender equality in the workplace and other areas of public life. In both of these contexts, gender equality was presumed and legally imposed.⁶

My early scholarship focused on the family in late twentieth century America, which was at that time the site of substantial reform efforts.⁷ Arguments for marital property and joint custody reflected the idea that marriage should be seen as a partnership between equals, not as a hierarchical, gender-dependent union.⁸ The problem with the imposition of an equality paradigm in family law was that, as our most gendered institution, the functional family was riddled with inequalities. Women were certainly not equal when it came to work and their roles as wives and mothers further disadvantaged them in the market.⁹ This not only created an economic disadvantage, but also had negative implications within the family when decisions about residence or assumption of domestic responsibilities were at issue. Lower wages and fewer opportunities lessened the bargaining power of mothers when it came to family decisions, such as who should assume the burdens associated with caring for children. Economic realities directed the primary wage earner be freed to further develop his career or market skills in the interest of the family as a unit. It was not surprising that women were overwhelmingly primary caretakers, and this was true whether they were employed or not.¹⁰

An additional family-centred inequality was associated with divorce. Just as during marriage, women typically assumed primary responsibility for children post-divorce.¹¹ Existing inequality in the market and within the family was compounded at divorce. Caretaking during marriage had led to reduced income potential and fewer job prospects for women, and divorce drastically cut the income available to the single-parent family. Children’s need for care (both nurturing and material) does not diminish with divorce. On the contrary, it may increase or become more complicated to provide. At divorce, the primary wage earner takes (most of) his salary with him, and (likely) abandons any assistance with care he may have provided within the continuing, but now altered, family unit.¹² Divorce also does not cure a workplace culture hostile to those with caretaking responsibilities.

It seemed ironic that the remedy to existing gender inequality within both the family and workplace was deemed the imposition of a legal regime of equality that ignored the differences in social and economic positions between women and men.¹³ Reformers sought to ‘free’ ex-wives from the ‘stigma’ of alimony, which was seen as a patriarchal indicator of women’s dependence on men. Conservatives concerned with welfare dependency and single motherhood compelled work or marriage as solutions to the poverty of single mothers. Under a gender-equality regime, women were to be responsible for their own economic futures, as well as equally responsible for their children’s support. Men were expected to fulfill their economic responsibility to children through child support, but they also gained strategic legal advantages in the form of presumptions of joint custody and shared parenting models.

In contrast to prevailing reform efforts premised on formal equality in spite of less than equal outcomes, my early work suggested a ‘substantive equality’, or result-oriented system. Considering what the now single-mother, post-divorce family would need, I argued that that unit should be awarded more marital property (particularly the house) and some form of family support that recognised the limits caretaking placed on work and wages.¹⁴ I wanted unequal treatment in view of unequal needs created by an inequality in circumstances pre- and post-divorce, and suggested that this form of inequality would recognise the sacrifices and major contributions women made as mothers, as well as showing that society valued such work.¹⁵ It was not long before equal rights feminists and fathers’ rights groups joined to condemn my suggestion, rejecting result-oriented divorce policy as violating the fundamental principles of gender equality.¹⁶

1.2 Equality in Context: Market and State

One problem with family law reform was that it was seemingly impossible for many people to separate the issue of gender equality from the question of the needs of the post-divorce family raising children. Divorce reform was argued as if it were part of a gender war, waged to define the status of men versus women; rules had to be equal or men and women would not be and the symbolic implications of law overtook practical considerations. Responding to this gender equality dilemma, I argued that we should look beyond the individuals within the family—and their genders—to the role that the family, as an institution, was serving in society.

Part of the criticism being made by legal feminists at that time was directed at the supposed line drawn between ‘public’ and ‘private’.¹⁷ The family was the quintessential private institution, and the state represented the public, while the market, chameleon-like, drifted between private and public depending on which designation gave it the most freedom and flexibility. Erasing this line in the context of family law reform, I argued there was a social or collective responsibility for caretakers and their children.¹⁸ In the wake of divorce reform and the increased number of unmarried mothers, it was clear that the traditional marital (private) family was failing and could not reliably meet the economic and nurturing needs of its members. The solution was clearly to share the burden across society’s institutions, an approach that seemed both just and justified. While the family was acknowledged as playing an important role in the reproduction of society, other social institutions—even when they directly benefitted from the work carried out by the family—were not seen as directly responsible for ensuring its success. I believed there needed to be a more equitable distribution of institutional responsibility for ensuring the provision of essential care principally delegated to the family in contemporary policy and law.

In making this argument for shared institutional responsibility, I introduced the related concepts of ‘inevitable’ and ‘derivative’ dependency.¹⁹ Beginning with the observation that human dependency was inevitable, I suggested that the dominant political language extolling self-sufficiency and independence was both unrealistic and inappropriate.²⁰ Dependency was a complex phenomenon. ‘Inevitable dependency’ described the needs for care associated with certain biological and developmental stages of life. Infants were inevitably dependent, as were many people as they aged or became ill or disabled. Yet, this form of dependency had been privatised by assigning it to the family. It had also been gendered within the family, falling on the shoulders of those who were assigned the social roles of wife and mother.²¹

The advent of the gender-equality movement had revealed contradictions and incompatibilities between the structure of the family and the workplace. The demands of the employment market conflicted with the needs of the family, preventing gender-equality from being implemented. It seemed clear that in order to achieve such change, other institutions would have to undergo complementary evolutions, incorporating new family expectations into their operations.²²

To effect such change, I suggested that inevitable dependency should be the concern of society generally, with responsibility shared across social institutions.²³ This responsibility could be fulfilled through accommodation and support for those who assumed the role of caretaker—the derivatively dependent. We all owe a debt to those who care for inevitable dependents and this debt must be paid through collective means; such a duty could not be discharged simply by being nice to your own mother. Making an analogy to military service, I argued that individual soldiers were assigned the responsibility of defending society, but they were also given the resources necessary to do that job, as well as being compensated economically.²⁴ Caretakers are also dependent on resources to accomplish their socially important and essential work. Those resources could not (and were not in all too many cases) supplied by the family. I argued that social responsibility must be more equitably spread across the societal institutions that benefited from care work, with the workplace in particular expanding to accommodate caretakers.

State responsibility should result in regulations designed to ensure such accommodation, as well as the provision of services like childcare centres or subsidies in order to ease the structural and economic burdens that inevitable dependency places on the caretaker and family. These arguments were motivated by an understanding of the family as a social institution that is not isolated, but rather, connected to and co-dependent upon other institutions that needed the future workers, citizens, entrepreneurs, and so on, that the family nurtured in its role in reproducing society.²⁵

The mainstream academic responses to my arguments about inevitable dependency were predictable. The situation of children was easily overlooked when it came to an assessment of equality and state responsibility. They were not equals. Their inevitable dependency differentiated them from the adults in the family, but it was a disadvantage everyone suffered and would outgrow. Children were the responsibility of the family and their interests could justly be subsumed within it. As for the ill and elderly, they had the personal responsibility to provide for themselves in old age through insurance and pension plans. If they had not, means-tested social welfare programs existed for those who had failed to live up to their personal responsibility to protect themselves.²⁶

I thought that the arguments about derivative dependency would be somewhat harder to deflect, but the prevalence of economic modeling for assessing just about any social institution and relationship facilitated its dismissal. Caretakers were free and equal individuals who had made a ‘personal choice’. It was hardly society’s responsibility to subsidise that choice. In the words of one commentator, if one person had a preference for a child, while another preferred a Porsche, why should society treat these choices differently?²⁷ These were merely individual decisions and neither preference deserved social subsidy. Thus, an emphasis on personal liberty and autonomy was combined with an assertion of equality or impartiality and used to argue against directing law and policy to address existing inequality.²⁸ Once again, arguments for a collective (or social) ideal of justice were beaten back by reference to the ideal of individual, not institutional, responsibility.

While it was not persuasive to the liberal, individual choice-oriented commentators, the development of the concept of derivative dependency in the family context was a theoretically important step in the evolution of vulnerability theory. It had moved my thinking beyond the individual and individual characteristics, such as gender, to focus on societal structures and the characteristics of social institutions and relationships. The advent of formal equality in family law did not mean that society’s institutions of family and work were transformed. Those structures continued to subordinate, but no longer formally on the basis of gender. Structural disadvantage remained intact, a product of a reality in which society either does not place much value on caretaking as a social function and therefore need not accommodate it, or that society (or some segments of it) places so much value on caretaking that it should not be diminished by being quantified or monetised in social policy.

In other words, it is the nature of and significance given to the social task of caretaker that operates to disadvantage the individuals who occupy that role, not the gender of the caretaker. If men become caretakers, they also suffer economically and professionally. The market is structured so as to assume no responsibility for the reproduction of society. When the state concedes it has some responsibility, it is only to serve as a highly stigmatised backup when the family ‘fails’. All caretakers, regardless of sex, will be subordinated by this structure and the ideology of family autonomy, independence and self-sufficiency that supports it. At that time, I realised that what I had been analysing as a gender problem was actually a societal problem that extends well beyond a gender equality frame. I ultimately understood that what was needed was an approach to social justice that challenged the liberal reliance on individual choice and the construct of the private family.

My current focus extends well beyond the family to include all social and institutional relationships and the justice problems they may reveal in contemporary society. In developing a vulnerability approach to the justice issue, I have been guided by the realisation that social problems need social or collective, not just individual, solutions. Developing a collective or social justice approach requires that we understand the nature of those who compose the collective. I thus begin with a descriptive or empirical understanding of what it means to be human. From that foundational premise, I develop a normative, or theoretical, perspective on the just allocation of responsibility for individual and societal well being. Such responsibility must be shared between the individual and the state and its institutions. At the same time, social problems also require a confrontation with, and response to, situations of inherent or inevitable inequality.

2.1 Reconstructing the Political Subject as the Vulnerable Subject in Law

Although it is often narrowly understood as merely ‘openness to physical or emotional harm’, vulnerability should be recognised as the primal human condition. As embodied beings, we are universally and individually constantly susceptible to change in our well being. Change can be positive or negative—we become ill and are injured or decline, but we also grow in abilities and develop new skills and relationships.²⁹ The term ‘vulnerable’, used to connote the continuous susceptibility to change in both our bodily and social well-being that all human beings experience, makes it clear that there is no position of invulnerability—no conclusive way to prevent or avoid change.

For the most part, human vulnerability has been ignored or marginalised in mainstream legal theory or political philosophy. Particularly in contemporary politics increasingly shaped by themes of austerity and purported threats from immigration, we see a growing fixation on personal responsibility, individual autonomy, self-sufficiency and independence, buoyed by an insistence that only a severely restrained state can be an economically responsible one. When the term vulnerability is used, it is typically (and inaccurately) attributed to only some individuals or groups, who are referred to as ‘vulnerable populations’, It is also used as a basis for comparison: some people are viewed as more or less vulnerable, or as differently or uniquely vulnerable. This perspective ignores the universality and constancy of vulnerability as I use the term and is merely another way of identifying bias, discrimination and social disadvantage rather than focusing on structural arrangements that affect everyone. In other words, it is another way to present an equal protection argument.

Human vulnerability has social, as well as physical and material consequences. On the most obvious level, our embodiment means that we are innately dependent on the provision of care by others when we are infants and often when we are ill, aged or disabled. It is human vulnerability that compels the creation of social relationships found in designated social institutions, such as the family, the market, the educational system and so on. The very formation of communities, associations, and even political entities and nation-states are responses to human vulnerability.³⁰ Social problems emerge when these social institutions and relationships are not functioning well.

Importantly, a vulnerability approach does not begin with discrimination or difference in legal treatment as the primary evil to be addressed. Rather, it begins with the assertion that we need to rethink this conception of the legal subject to make it more reflective of the actual human experience. It requires that we recognise the ways in which power and privilege are conferred through the operation of societal institutions, relationships and the creation of social identities, sometimes inequitably. Because law should recognise, respond to, and, perhaps, redirect unjustified inequality, the critical issue must be whether the balance of power struck by law was warranted.

Social identities are manifested within institutions and do not manifestly reflect individual characteristics, such as race or sex. However, they do represent the allocation of power and privilege between occupants based on the social function of the institution and their social roles within it. Individuals occupy different social identities as they age and expand their interaction with different social institutions and relationships (from child to teenager to adult—from family to school to workplace). General idealised social identities, such as parent/child, employer/employee and shareholder/consumer are formed and operate as functional and ideological constructs, which tend to shape individual options. These linked, complementary social identities also may reflect an intrinsic inequality between their occupants, an inequality that is often not only justifiable, but also necessary.

Idealised identities are human constructions and, as such, they are not static. However, as archetypes they do reflect the historic values and priorities of society and tend to be relatively stable for extended periods of time. Proposed changes in, or widespread deviations from, these idealised identities can provoke social turmoil and backlash. So too, changes in individual status can give rise to insecurity and anger or frustration, as well as a sense of accomplishment or opportunity.

What vulnerability theory offers is a way of thinking about political subjectivity that recognises and incorporates differences and can attend to situations of inevitable inequality among legal subjects. In this regard, one advantage of vulnerability theory is that it can be applied in situations of inevitable or unresolvable inequality: it does not seek equality, but equity. A vulnerability analysis incorporates a life-course perspective while also reflecting the role of the social institutions and relationships in which our social identities are formed and enforced. It also defines a robust sense of state responsibility for social institutions and relationships.

2.2 Taking Account of Differences

The process of analysing the differences that arise from individual experience within social structures does not begin with the particular characteristics of the individual, but with the nature of social arrangements. The abstract and inevitably contested legal principles often referred to in human rights literature, such as equality, liberty and dignity, are not the measure for this inquiry, however. Nor does it rely on placing individuals into distinct but comparable categories for purposes of equal protection analysis (male/female, white/black etc.).

There are two relevant forms of individual difference in a vulnerability approach—those that arise because we are embodied beings and those that arise because we are social beings embedded in social institutions and relationships. Consideration of these two forms of difference will inevitably draw attention to distinct facets of social organisation and activities. These differences also require distinct legal and policy approaches, and suggest specific roles for the state to play regarding its responsibility for citizens.³¹