Draft:Vulnerability Theory

Vulnerability theory is a moral, legal and political theory developed by Martha Albertson Fineman. It was introduced in her article titled "The Vulnerable Subject: Anchoring Equality in the Human Condition" published in the Yale Journal of Law & Feminism in 2008, which presented a critique of the current legal and political frameworks around equality in the United States and proposed a new model based on universal human vulnerability. Fineman argues that the concept of vulnerability — a universal and constant aspect of the human condition — should replace the legal focus on the autonomous liberal subject. She proposes a “vulnerable subject” as a new foundation for social policy and state responsibility, leading to a more substantive and inclusive model of equality. Fineman calls for moving beyond identity-based equality frameworks toward one rooted in universal human vulnerability. The state must take an affirmative role in building and regulating institutions to equitably distribute assets and reduce systemic inequality. Since its introduction, the theory has been highly influential among law and social justice scholars. The article has been cited more than 2700 times to date, and numerous symposia, conferences and books have been dedicated to studying the different aspects of vulnerability theory and its implications for law, governance and social justice.

Over time, Fineman elaborated the framework in a sequence of major publications, including The Vulnerable Subject and the Responsive State (2010) and Vulnerability and Inevitable Inequality (2017). These later works consolidate a jurisprudence of vulnerability, extending the theory from its initial philosophical foundations to questions of institutional design and state responsibility. Within this formulation, equality is understood not as uniform treatment among individuals but as the capacity of institutions to respond effectively to the realities of human dependency and differential positioning.

Origins and Development

Fineman first articulated vulnerability theory in her 2008 article The Vulnerable Subject: Anchoring Equality in the Human Condition. Grounded in feminist legal scholarship, particularly her earlier critiques of family law and the privatization of dependency, the theory responded to the limitations of rights-based and anti-discrimination frameworks. It proposed the “vulnerable subject” as a replacement for the autonomous liberal subject, emphasizing universal human dependency and the need for collective institutional responsibility.

Over time, Fineman expanded these ideas into a comprehensive jurisprudence of state responsibility and institutional design. Vulnerability Theory and the Trinity Lectures: Institutionalizing the Individual (2025), based on Fineman’s 2022 Trinity College Dublin lectures, traces the evolution of vulnerability theory from its feminist origins in studies of care and dependency to a broader jurisprudence of political, legal, and social institutions. The lectures underline that the state is never neutral or inactive but continually constructs and legitimizes the institutions that distribute privilege and vulnerability.

Vulnerability theory thus reframes equality as an ongoing institutional and social project rather than a fixed condition of formal sameness. By identifying universal dependency as the empirical baseline for justice, it situates law and policy within a dynamic process of institutional responsiveness to the realities of human life. Scholars have emphasized that this shift extends equality analysis beyond individual rights to institutional design, positioning the state as a continuous participant in the pursuit of social justice.

Feminist Foundations

Vulnerability theory grew out of feminist approaches to law and policy, particularly those addressing family law and the organization of care. Because the family has traditionally borne the primary responsibility for dependency — raising children, supporting the elderly, and caring for those in need — early feminist analyses exposed how legal and political systems were built on gendered assumptions about caregiving. These critiques revealed that the public and private divide insulated care from state concern, effectively naturalizing inequality by locating responsibility within the private household.

Fineman’s early feminist scholarship showed that reform movements, while significant, often confined equality to questions of discrimination rather than confronting how dependency itself was structured and distributed. She argued that care should not be treated as a women’s issue but as a universal and structural condition of human life. From this recognition emerged the insight that all individuals share dependency needs that must be socially and institutionally managed. Vulnerability theory therefore reframes care and social reproduction as collective responsibilities that must be equitably supported across the family, market, and state.

This universal orientation transformed the feminist project from a demand for inclusion within existing systems into an inquiry about the justice of institutional design itself. It shifts the focus from identity and formal equality toward an ontological understanding of human embodiment as the foundation for social justice. Formally neutral values such as autonomy, merit, and efficiency, long critiqued by feminist scholars, reflect the standpoint of those already advantaged within existing institutions. Fineman’s framework builds on this critique by grounding equality in collective obligation, asserting that law and policy must be evaluated by how they distribute the resources necessary for individuals and communities to meet shared human needs.

Reasoning from the Body

At the core of vulnerability theory lies the principle of “reasoning from the body,” developed in the 2020 book chapter Reasoning from the Body: Universal Vulnerability and Social Justice. It begins from the premise that all human beings are embodied and therefore inherently vulnerable. This starting point shifts attention from abstract ideals of liberty and autonomy to the empirical realities of human existence. The body’s shared fragility and dependence on social institutions form the basis for claims of justice and collective responsibility.

From this perspective, law and policy are evaluated by their responsiveness to embodiment rather than by adherence to formal equality or non-interference. A responsive society distributes resilience through access to education, healthcare, employment, and social security, enabling individuals and communities to withstand and recover from life’s inevitable contingencies. Vulnerability theory thereby redefines the role of the state as responsible for designing and sustaining the institutional structures required for collective and individual well-being.

The theory is not naïve about the risks inherent in state-centered responsibility. It recognizes the possibility of institutional capture, in which public power and private influence may converge to reinforce existing hierarchies rather than mitigate them. This acknowledgment situates vulnerability theory as both normative and diagnostic; it advances a vision of responsive governance while also serving as a critical framework for examining how law and institutions can reproduce inequality.

The move from embodiment to social justice represents not a change in focus but an expansion in scope. Reasoning from the body reveals that vulnerability is not only a biological or individual reality but also a social condition that necessitates collective organization. From this recognition arises the need to evaluate the justice of the institutions that mediate human interdependence. The body, understood as universal and developmental, situates vulnerability as the foundational premise of political and legal thought. Social justice, then, concerns not only the fair distribution of material goods but also the equitable structuring of the institutions through which resilience is produced and sustained.

In this sense, collective responsibility follows logically from embodied vulnerability. The inevitability of dependency and change demands institutional arrangements that distribute both resources and risks in ways that acknowledge our shared condition. A responsive state, understood through this framework, is not a discretionary actor but a necessary participant in maintaining societal well-being. This does not imply blind faith in state benevolence; rather, it reflects an understanding that power is always exercised, whether through markets, religion, or corporations, and poses the question of which forms of authority are most legitimate, accountable, and capable of fostering inclusive justice.

Social Justice and Collective Responsibility

Vulnerability theory connects the idea of social justice to institutional design and governance. It shifts attention from individual rights and equality of treatment to the structural conditions that determine how resources and opportunities are distributed. Justice in this framework depends on how effectively institutions promote resilience and mitigate structural disadvantage.

Fineman reinterprets social justice as the fair organization of social and economic life and the equitable distribution of collective resources. This perspective aligns with the approach outlined in the United Nations report Social Justice in an Open World (2006), which defines justice as a property of institutions rather than individuals.

In contrast to rights-based models that address discrimination through legal protection, vulnerability theory emphasizes the responsibility of the state to evaluate and reform the institutions that produce inequality. Social justice is therefore understood as a continuing public responsibility in which institutions must adapt to changing circumstances and ensure that all individuals have access to the assets necessary for participation and well-being.

Core Concepts

The Vulnerability Thesis

While vulnerability is usually associated with pathology, deprivation, victimhood, and thus limited to certain “vulnerable populations,” Fineman argues that vulnerability is universal and inevitable; it arises from our embodied nature and our constant susceptibility to harm, injury, and misfortune. All individuals experience vulnerability; however, society treats this as an exceptional rather than foundational condition. Fineman calls for the vulnerable subject to replace the liberal legal subject as it better reflects reality and demands state responsibility to build responsive institutions.

Vulnerability theory develops this idea into a conceptual framework for understanding how societies organize protection and opportunity. It treats vulnerability not as an episodic state but as a permanent and generative feature of human life that gives rise to social institutions. The focus of legal and political analysis therefore shifts from identifying victims to assessing how institutions distribute resilience and exposure across populations.

In this sense, vulnerability provides a new foundation for equality and justice. It directs attention to the systemic organization of social and economic life and the continuous adjustments required to ensure collective well-being. The concept reframes dependency as a universal condition that links all individuals to the institutions that sustain them, establishing the basis for a more inclusive and enduring model of social responsibility.

Inevitable Inequality

Fineman’s later work, especially Vulnerability and Inevitable Inequality (2017), develops the claim that inequality is not an anomaly but an inevitable feature of social organization. Human diversity in bodies, capacities, and circumstances means that perfect equality is neither natural nor attainable. The central question therefore concerns how institutions and the state recognize and manage the effects of inequality rather than whether inequality itself can be eliminated.

Within this framework, Fineman distinguishes between natural or relational inequalities, such as those between parent and child or teacher and student, and unjust institutional inequalities that arise from failures of governance. The persistence of inequality exposes the limitations of formal equality doctrines that assume a level playing field. Vulnerability theory proposes that justice requires continuous institutional attention to how power, privilege, and opportunity are distributed across society.

Inevitable inequality thus redefines the equality inquiry. Instead of focusing on whether individuals receive identical treatment, it asks whether institutional arrangements respond to universal vulnerability in ways that reduce unjust disparities. This perspective extends the theory’s ethical and structural dimensions, emphasizing that the state has an affirmative obligation to monitor and adjust institutional systems so that all individuals have meaningful opportunities to achieve resilience and participation.

Limits of Formal Equality and Identity Politics

According to Fineman, legal equality focuses narrowly on formal equality (sameness of treatment) and anti-discrimination. This model relies on protected identity categories (e.g., race, sex) and fails to address broader structural inequalities such as economic disparity, access to healthcare, or education. It cannot remedy persistent disadvantage because it doesn’t interrogate systemic privilege or institutional power.

Fineman criticizes identity-based legal remedies for being under- and over-inclusive. Some individuals succeed despite their group membership; others (e.g., white men in poverty) are left out of remedies. A post-identity model centred on vulnerability can more accurately address systemic privilege and disadvantage.

Fineman’s critique holds that identical treatment within unequal structures reinforces hierarchy rather than dismantling it. By presuming that all individuals are similarly situated, formal equality overlooks how institutions allocate resources and opportunities in ways that perpetuate advantage for some and disadvantage for others. This approach produces a “jurisprudence of appearances,” in which justice is measured by procedural uniformity rather than by substantive outcomes.

Vulnerability theory therefore redefines equality as responsiveness, an inquiry into how law and policy should respond to the reality of inevitable inequality and universal vulnerability. This move replaces the static ideal of sameness with an ongoing responsibility to evaluate and reform institutional design. In Fineman’s later work, particularly in Institutionalizing the Individual (2025), she argues that genuine equality requires the continual redistribution of resilience-building assets, including education, healthcare, and security, to ensure that all individuals have the means to withstand life’s inevitable contingencies.

The theory also departs from identity-based and intersectional frameworks that organize legal and political claims around fixed categories such as race, gender, or sexuality. While acknowledging the historical significance of these categories and the material legacies of exclusion they mark, Fineman argues that such frameworks tend to individualize or compartmentalize social injustice. They risk reinforcing the very divisions they seek to redress by treating inequality as episodic and group-specific rather than as the outcome of systemic institutional design.

Universal vulnerability, by contrast, provides a broader and more inclusive foundation for equality. It retains the insights of feminist and critical race theory regarding differential exposure to harm, yet situates them within a comprehensive account of the human condition as embodied and socially embedded. Universality here does not mean abstraction or sameness, but recognition that all individuals are susceptible to harm through the institutions on which they depend. This framing allows for both the acknowledgment of difference and the articulation of shared responsibility.

Through this lens, equality becomes an ongoing political and institutional endeavor. It requires that the state continually reassess how policies and structures affect differently situated individuals and ensure that systems of education, healthcare, and economic participation remain responsive to changing social and economic conditions. Equality, in this sense, is not a fixed status or outcome but a continuous project of collective responsibility and institutional accountability.

Resilience and the Responsive State

In Fineman’s view, institutions (like family, education, market, healthcare) are shaped and legitimized by the state and these institutions distribute assets (physical, human, social) that help individuals build resilience to vulnerability. The state must thus ensure equitable access to assets across these institutions. The American ideal of a non-interventionist state restricts state responsibility and action in correcting inequality. Concepts like “privacy” shield both families and markets from oversight. Contrary to claims of a weakened state (e.g., due to globalization), Fineman argues the state is still powerful but chooses not to intervene in correcting inequity. The state must be reimagined as active and accountable for ensuring substantive equality. Legal and political systems should shift focus from individual intent and protected group status to institutional design and resource distribution.

A vulnerability framework rejects the myth of a neutral or restrained state and instead recognizes that the state is always active in structuring social and economic relations. The question, therefore, is not whether the state should act, but in whose interests it acts and how it allocates responsibility for resilience. A responsive state continuously evaluates how its policies, programs, and institutions affect differently situated individuals and communities. It accepts that neutrality is an illusion, since all governance decisions inevitably shape the distribution of privilege and disadvantage.

Fineman introduces the concept of resilience to describe the social, material, and institutional resources that enable individuals and communities to withstand and recover from life’s contingencies. These resources, such as education, healthcare, employment, housing, and social support, are not naturally distributed but are mediated through institutional arrangements created and maintained by the state. Because the state is the central architect of these systems, its responsibility extends beyond remedying discrimination after the fact. It must proactively design and monitor institutions to ensure that they build resilience across the population and do not perpetuate inherited hierarchies of privilege or deprivation.

A responsive state therefore functions as both guarantor and regulator of societal resilience. It acknowledges that markets, families, and social systems are not autonomous spheres but state-constituted sites of governance that require continual oversight. For instance, family law determines how dependency and care are allocated; labor law structures the balance of power between employers and employees; and welfare policies define the conditions under which assistance is provided. In each of these areas, the state’s choices determine who has access to resilience-conferring assets and who remains exposed to unmitigated vulnerability.

This model of governance departs from the liberal ideal of negative freedom, which defines justice in terms of state restraint. Instead, it grounds legitimacy in the state’s affirmative duty to respond to human vulnerability. A responsive state must be dynamic and self-correcting, capable of reassessing how social arrangements distribute advantage and disadvantage over time. It must also ensure transparency and accountability in its institutional design, allowing for public contestation and revision of policy when existing structures reproduce inequality.

Fineman’s account thus envisions a form of democratic responsibility rooted in relational dependence. Rather than viewing resilience as an individual trait or private achievement, vulnerability theory situates it as a collective good dependent on the state’s willingness to sustain inclusive and equitable institutions. In this sense, the responsive state is both ethical and structural. It is ethical in its recognition of shared human fragility, and structural in its commitment to building systems that enable all individuals to live with stability and resilience.

Influence and Reception

Since its introduction, Vulnerability Theory has had significant influence across legal, social, and political scholarship. It has informed debates in constitutional law, human rights, social welfare, health policy, and feminist theory, while also generating engagement in adjacent fields such as education, bioethics, and environmental governance. The framework’s focus on universal vulnerability and institutional responsibility has encouraged interdisciplinary research that connects questions of justice, resilience, and collective responsibility.

Fineman’s broader body of work, including The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (1992), The Autonomy Myth: A Theory of Dependency (2004), and Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (2013), has contributed to reshaping understandings of equality and justice in global legal and policy discourse. Her writings have influenced welfare-state reform discussions in Europe, constitutional theory in the Global South, and policy frameworks addressing care, dependency, and social reproduction.

The theory continues to evolve through collaborative research networks, edited volumes, and international dialogues, including those convened under the Vulnerability and the Human Condition Initiative at Emory University. These projects apply the framework to contemporary challenges such as climate change, migration, digital governance, and pandemic preparedness, exploring how law can respond to collective and structural harms.

Scholarly responses to Vulnerability Theory have been wide-ranging. Supporters highlight its capacity to provide a unifying normative framework that remains attentive to structural inequality and social differentiation. Some critics have expressed concern that the theory’s call for greater state responsibility could encourage paternalism or administrative overreach. Proponents, however, note that Fineman’s concept of a responsive state is grounded in transparency, accountability, and democratic participation, distinguishing it from coercive or centralized governance. In this view, state legitimacy depends on its ability to justify and adapt institutional arrangements in response to collective vulnerability. Responsibility is understood as a continuous and participatory feature of governance rather than as discretionary intervention, and inaction is framed as a failure of public obligation. The theory thus positions responsiveness not as state intrusion but as a necessary condition for democratic legitimacy and substantive equality.