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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