In a political climate in which the role of government is actively being questioned, Martha Fineman’s “vulnerability theory” is rapidly gaining momentum as a justification for expansive social welfare laws. Despite the growing body of literature applying vulnerability theory to a broad range of legal problems, scholars have yet to critically explore the theory’s limitations. This article fills that void by analyzing the theory’s utility and scope. It shows how examining vulnerability theory through the lens of old-age policy reveals the theory’s limited prescriptive value and its tendency — as currently articulated — to promote unduly paternalistic policies. It then describes how vulnerability theory could be refined to provide greater respect for individual liberty and to enhance its value as a tool for defining the appropriate role of government. Finally, it argues that, although Fineman’s theory of vulnerability does not indicate how to allocate resources among vulnerable individuals, vulnerability may nevertheless be a useful construct around which to design social policy.Kohn states -
The government’s role in allocating resources among the populace has long been a source of contention. Questions are raised not only about how the government redistributes resources, but also, more fundamentally, about the extent to which and even whether government should do so. The United States Supreme Court and mainstream political discourse have historically answered such questions by suggesting that the scope of the government’s responsibility is limited: although the government may choose to redistribute resources through taxation and the creation of social welfare policies, the government is generally not obligated to do so. Rather, the government’s primary social welfare obligation is to protect individuals against wrongful discrimination and ensure that all individuals are treated alike in the eyes of the law.
This “formal equality” approach to understanding the role of government has been heavily criticized for failing to achieve substantive equality. The primary thrust of this critique has been that the formal equality approach fails to achieve substantive equality: when pre-existing advantages and disadvantages of social groups differ, merely applying the same legal rules to those groups often produces unequal results.
Like treatment under the law therefore does not guarantee social equality.
Out of this debate, Martha Fineman’s “vulnerability theory” is emerging as an influential and powerful new critique of formal equality and as an alternative framework for understanding substantive equality. It proposes that vulnerability is inherent to the human condition, and that governments therefore have a responsibility to respond affirmatively to that vulnerability by ensuring that all people have equal access to the societal institutions that distribute resources. The theory thus provides an alternative basis for defining the role of government and a justification for expansive social welfare policies.
Vulnerability theory is rapidly gaining acceptance within the legal academy as progressively-oriented scholars rush to apply the theory to a broad range of legal problems. The theory is attractive not only because it helps explain the basis for broad social welfare policies, but also because it suggests that vulnerability can replace group identity (e.g., race, gender, poverty) as a basis for targeting social policy. At a time when legal scholars are increasingly questioning the law’s use of identity-based criteria such as gender and race, in part because of greater appreciation for the impact of “intersectionality” (i.e., the way an individual’s multiple identities interact to shape his or her experiences), Fineman’s claim of creating a “post-identity” approach is provocative and attractive.11 Despite an emerging body of literature applying vulnerability theory, the theory has just begun to be substantively critiqued by other scholars.12 Moreover, to date, no scholars other than Fineman have attempted (at least in published form) to refine it. As a result, current applications of the theory tend to proceed in a manner that is less critical and less nuanced than might otherwise be possible.
This article attempts to fill that void by examining the theory’s utility and limitations and then suggesting how the theory could be modified to enhance its value as an intellectual underpinning for social welfare law. Specifically, it argues that vulnerability theory provides a helpful framework for understanding social responsibility and the role of the state. However, it also shows how Fineman’s own work applying vulnerability theory to old-age policy reveals the theory’s limitations as a prescriptive tool and its tendency—at least as currently articulated—to promote excessively paternalistic laws and policies. Finally, it argues that, although Fineman’s theory of vulnerability does not indicate how to allocate resources among vulnerable individuals, vulnerability may nevertheless be a viable basis for policy intervention.
The article proceeds with five major parts. Parts II and III describe vulnerability theory and its value to those designing social policy. Part IV discusses how Fineman’s application of vulnerability theory to old-age policy reveals the underlying limitations of vulnerability theory, and raises serious concerns about its potential impact. Part V suggests how vulnerability theory could be refined in order to remedy its current tendency to promote unduly paternalistic laws, and to enhance its value as a framework for defining the role of government. Finally, Part VI explores how a vulnerability-based approach to social policy might serve as an alternative to an identity-based approach