ABSTRACT
In this chapter 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 universal and constant, inherent in the human condition. The vulnerability approach I propose is an alternative to traditional equal protection analysis; it moves us beyond identity-based inquiries because it focuses not only on discrimination against defined groups, but is concerned with the privileges conferred on limited segments of the population by the state through its institutions. Therefore, vulnerability analyses concentrate on our social structures and institutions established to manage our common vulnerabilities. This approach has the potential to move us beyond the confines of current discrimination-based models toward a more substantive vision of equality. Theorizing a concept of vulnerability necessitates developing a more complex
subject around which to build social policy and law; this new subject is useful in redefining and expanding current ideas about state responsibility toward individuals and institutions. In fact, I argue that the “vulnerable subject” must replace the autonomous and independent subject asserted in the liberal tradition. Far more representative of actual lived experience and the human condition, the vulnerable subject should be at the center of our political and theoretical endeavors. The vision of the state that would emerge in such an engagement would be more responsive to and responsible for the vulnerable subject, a reimagining that is essential to attaining a more equal society than currently exists in America. Before developing the vulnerability thesis, I will address some conceptual
impediments to the idea of a more responsive state. First, an impoverished sense of equality is embedded in our current legal doctrine. We understand equality in formal terms, focused on discrimination and inattentive to underlying societal inequities. Second, the view that the state’s proper role is one of restraint and abstention is politically powerful. Even self-identified progressive social reformers are suspicious of the state; the rhetoric of non-intervention prevails in policy discussions, deterring positive measures designed to address inequalities. We idealize contract and correspondingly reify individual choice in ways that mask society’s role in perpetuating inequality. The fact that societal institutions play a
significant role in perpetrating inequality is the very reason that we need a more active and responsive state.
