Thursday, February 19, 2015
Should an Individual's "Vulnerability" be a Defining Criterion for Social Welfare Policy or Services?
Emory Law Professor Martha Fineman, long known for her feminist jurisprudence, has attracted increasing attention for her work on specific concepts of dependency and vulnerability. Her 2008 analysis of vulnerability, rather than, for example, gender or race, as a tool to shape a more responsive state and a more egalitarian society, has been seminal.
Syracuse Law Professor Nina Kohn, in her latest work, "Vulnerability Theory and the Role of Government," notes the "attractiveness" of vulnerability theory, but pushes back against the growing reliance on it as a policy tool, using her own understanding of old-age related government services as the basis for comparison. She raises a serious concern about the potential for the current definition and focus on vulnerability to promote "unduly paternalistic laws." For example, Professor Kohn writes:
"Vulnerability theory as currently articulated would focus attention on maximizing safety and security without adequately considering the impact of potential laws and policies on individual autonomy, or how a sense of autonomy may actually contribute to an individual’s safety and security. This effect is particularly problematic in the context of evaluating laws that seek to protect individuals from entering into or maintaining personal relationships perceived to be unsavory, as is the case with many of the policies designed to protect older adults from abuse, neglect, and exploitation. This is because the autonomy being undermined is the autonomy of the person whom the state is trying to help; since undermining an individual’s autonomy can harm that person in both tangible and intangible ways, the state’s actions are prone to being at least partially counterproductive. Thus, vulnerability theory might be of greater prescriptive value if it distinguished between infringements on autonomy where the person whose autonomy is being sacrificed is the supposed beneficiary of the infringement and infringements on autonomy designed to benefit another."
Professor Kohn's article, published in the most recent issue of Yale Journal of Law and Feminism, uses recent changes in California law to demonstrate a framework for revision of the current theory of vulnerability, with a goal of identifying a "standards based approach" for specific government response.