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20 Yale J.L. & Feminism 1 (2008-2009)
The Vulnerable Subject: Anchoring Equality in the Human Condition

handle is hein.journals/yjfem20 and id is 3 raw text is: The Vulnerable Subject: Anchoring Equality in the Human Condition Martha Albertson Finemant IN TRO D U C TIO N .................................................................................................... 1 I. THE LIMITS OF FORMAL EQUALITY ............................................................ 2 II. THE RESTRAINED STATE ........................................................................... 5 1II. THE VULNERABILITY THESIS .................................................................. 8 A . The Vulnerable Subject ................................................................ 10 B. The Vulnerable Society and Its Institutions .................................. 12 IV. ASSESSING AND ADDRESSING PRIVILEGE AND DISADVANTAGE ................ 15 V . THE RESPONSIVE STATE .......................................................................... 19 VI. A MORE POSITIVE EQUALITY ................................................................. 22 C ONCLUSION ................................................................................................ 23 INTRODUCTION In this essay I develop the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. I argue that vulnerability is-and should be understood to be-universal and constant, inherent in the human condition. The vulnerability approach I propose is an alternative to traditional equal protection analysis; it is a post-identity inquiry in that it is not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions. As such, vulnerability analysis concentrates on the structures our society has and will establish to manage our common vulnerabilities. This approach has the potential to move us beyond the stifling confines of current discrimination-based models toward a more substantive vision of equality. To richly theorize a concept of vulnerability is to develop a more complex subject around which to build social policy and law; this new complex subject t Robert W. Woodruff Professor of Law, Emory University; Director of the Feminism and Legal Theory Project. I would like to thank Sara Elizabeth Apel and Adam P. Romero for their valuable assistance on this essay and their words of encouragement when deadlines loomed. I am also grateful to Yale Journal of Law and Feminism editors Emily Chapuis and Amanda Shanor for their excellent editorial suggestions. Copyright 0 2008 by Martha Albertson Fineman and the Yale Journal of Law and Feminism

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