ABSTRACT
Martha Fineman proposes the concept of shared “vulnerability” as an alternative framework to traditional American equal protection analyses for describing, assessing, and addressing economic and social inequalities. According to Fineman (2008: 1, 19), a vulnerability analysis re-focuses social justice inquiries away from legal frameworks grounded in notions of formal equality, onto the “institutions and structures our society has and will establish to manage our common vulnerabilities,” in order that we might better imagine and develop state mechanisms that ensure a more equitable distribution of assets and privileges. Within this frame, formal equality-bounded by identities and categories of discrimination-gives way to a post-identity concept of substantive equality, understood “as a universal resource, a radical guarantee that is a benefit for all” (23). Critical to Fineman’s analysis (2008: 19), and the starting point for my
contribution to this book, is her assertion that a vulnerability approach to the allocation and (re)distribution of societal resources requires a more responsive state. I do not engage with the substance of her vulnerability theory here; rather, I focus on the question provoked by her call for a more responsive state: to what does she refer when she invokes the state? She does not resolve this question in her essay, except to say that the state is “the manifestation of public authority and the ultimate legitimate repository of coercive power” (6) but not necessarily the nation-state. Instead, she raises the question for others to engage. “One pressing issue for those interested in furthering a new vision of equality must be how to modernize or refine [a] conception of the state and then explicitly define its appropriate relationship to institutions and individuals within contemporary society” (6). But if not necessarily, or not only, the nation-state, where might we locate it for the purposes identified by Fineman? At both a conceptual and organizational level, one answer might be transna-
tional or supranational institutions. Literature theorizing the state typically focuses on the nation-state as the locus of state power and authority, bounded by territorial and/or geopolitical borders. Within legal scholarship, an even
narrower focus is common: the state as adjudicatory apparatus. Yet it may be more productive to shift the conceptual lens to embrace a wider and less vertical conception of state power. Thus, this chapter takes Fineman’s invitation to begin the task of theorizing a “more responsive state” in the US, by looking beyond the US, and putting two groups of scholars in conversation with one another: feminist legal theorists on the one hand, and integration theorists, including governance theorists, on the other. Ultimately, I suggest that feminist legal scholars might usefully begin (re)theorizing the state by engaging with the process of North American integration (and with integration theorists) to explore integration’s emancipatory or progressive potential for responding to the sorts of inequalities Fineman identifies. At the same time, and just as importantly, integration theories will be made more relevant and more robust if they engage with feminism and feminist insights. Typically, activists and social justice scholars-including feminists and critical
race theorists-have been hostile to the idea of deepening continental integration in North America. Continental integration promises the annihilation of important (and knowable) cultural differences between those who live in Canada, the US, and Mexico, differences best preserved by national and local governments. These activists and scholars assert that integration is invariably a cover for American hegemony or imperialism. Finally, continental integration will exacerbate existing economic and social asymmetries between and within Canada, the US, and Mexico. I am sympathetic to these concerns, but my approach is different (Spitz 2004, 2005). Deepening continental integration potentially undermines the power, effectiveness, and legitimacy of Canada, the US, and Mexico qua nation-states but-and this is the crux of my thesis-this is both a threat and a promise. Transnational regional integration is potentially and simultaneously a location of domination and resistance to domination, displaying both regressive and emancipatory features (Kellner 2003; Kahn and Kellner 2007). It can be usefully explored for its potential to provide a framework for developing “state” institutions at transnational and supranational levels. My theoretical engagement rests on four premises. First, we are in the process
of something we might call “integration” in North America, and while I elaborate further below, I mean “integration” in its ordinary sense: the process of combining or integrating previously separate or differently divided groups into a new or larger whole-a sort of rebordering project (Spitz 2009: 741). In the context of North America, it is marked by simultaneous rule harmonization through deregulation and cross-pollination at the nation-state level and increasing formalization, coordination, and institutionalization at the transnational level (Spitz 2009: 755). Second, continental integration is sufficiently disruptive of our legal, political, economic, and cultural systems to present an unusual opportunity for meaningful engagement with the meaning, form, function, and constitution of the state at all levels: sub-national, national, transnational, and supranational. Third, location matters-historical, cultural, geographic, social. Therefore, general theories about the state are useful only to the extent that they accurately
reflect, explain, or have predictive resonance in the context of a particularized location. Similarly, ideas developed in specific contexts may be of more or less use elsewhere. Finally, any theory of integration should potentially be, or be informed by, a theory of disintegration. “It should not only explain why countries decide to coordinate their efforts across a wider range of tasks and delegate more authority to common institutions, but also why they do not do so or why, having done so, they decide to defect from such arrangements” (Schmitter and Trechsel 2004: 47, emphasis added). In the sections that follow, I sketch a preliminary definition for “integration”
in the context of North America. This task is admittedly difficult because integration is a deeply contested and polysemic concept, and I do not propose to offer a comprehensive definition. Instead, I elaborate on the concept by making a series of observations aimed at moving the definitional discussion forward. I argue that there is nothing about integration qua integration that portends the institutionalization of a particular set of values or closes the transformative process to particular institutional actors. In this sense, integration presents an opportunity for feminist participation. From there, I then build on administrative law principles to argue that we reasonably can predict the increasingly autonomous development of integration institutions. Meaningful contribution to the development of North American institutions, therefore, requires engagement at the earliest stages. In this sense, it presents not only an opportunity, but an imperative, for feminist engagement. Finally, I offer suggestions for what feminism might contribute to integration theories and integration practices, and I conclude that theorizing the “more responsive state” requires “feminist integration theory” or “integration feminism” in North America. But before moving to the substance of my arguments, I begin with a framing exercise. I ask the reader to engage in a sort of “thought experiment” designed to disrupt reflexive resistance to my integration claim(s).
