Theoretical Approaches to the Human Rights of Marginalized and Excluded Individuals or Groups – Part IV: A Short Critique of Vulnerability
Author: Veronika Flegar
This is the final blog post in a series of four. In this series I seek to highlight some of the underlying assumptions of four concepts or approaches that are commonly employed to further the human rights of excluded or marginalized individuals or groups. The last three blog posts dealt with human dignity, the capabilities approach and intersectionality. This blog post will cover the notion of vulnerability. Since this is the last blog post in this series I aim to relate the notion of vulnerability to the three earlier discussed ideas and point to what the notion can or cannot add in light of the pitfalls of the other ideas.
I focus on individual vulnerability rather than on community- or household-based vulnerability. Since I am unable to cover the underlying reasoning regarding this notion in-depth, anyone who would like to know more should refer to the works by Robert Goodin, Brian Turner, Martha Fineman and Catriona Mackenzie et al. For an application of the notion of vulnerability to specific legal contexts, interested readers can also refer to my research on vulnerability and non-refoulement, vulnerability and procedural guarantees, vulnerability and the health rights of non-citizen children and vulnerability and border management. This blog post merely recaps a few central features of the vulnerability notion before highlighting its added value in relation to the three previously discussed concepts. The post will end with a critique of the vulnerability notion and directions for future research in order to increase its potential with regard to the human rights of marginalized or excluded individuals or groups.
What is the notion of vulnerability? The individual vulnerability notion seems to most prominently have emerged in the fields of political theory (Goodin) and sociology (Turner) but has recently triggered increasing interest in the fields of law (Fineman) and ethics (Mackenzie). Since I am focusing on international human rights law in this blog post series, I will rely primarily on Fineman’s approach. Yet, her approach seems closely related to Turner’s universal vulnerability notion. Fineman argues that vulnerability arises from our dependency and is both universal and particular. It is universal in being inherent to our human embodiment which means that we are always at risk of harm due to, for instance, injury or illness. At the same time, vulnerability is particular since some individuals face a higher risk of harm than others.
The origin of this higher level of vulnerability is difficult to define and many authors have tried to do so in a variety of different ways. Yet, what seems most closely related to Fineman’s understanding of vulnerability is the distinction of vulnerability into three related dimensions: embodied (e.g. sex or age), situational (e.g. lack of resources or lack of language skills) and structural (e.g. discrimination or group-based disadvantages). Only an integrated assessment of all three dimensions seems likely to provide a comprehensive picture of what makes someone (temporarily) more vulnerable than others.
Fineman explicitly refers to vulnerability as a ‘post-identity’ notion which seems to render the notion a useful alternative to the identity-focused intersectionality approach. In addition, she explicitly positions her notion of vulnerability against the “liberal subject”. In so doing, she seems to counterpoise vulnerability against the more liberal ideas of human dignity and the capabilities approach which take the desire to reach independence as a starting point. Fineman considers this, what she calls, “autonomy myth” problematic because due to our embodiment we are all dependent. Hence, rather than denying this lived experience of dependency, this dependency should be acknowledged in order to ensure effective, transparent and egalitarian laws and policies.
Despite these alleged benefits of the notion of vulnerability above the previously discussed ideas, there are a number of critical reflections these ideas can provide. First, those favoring intersectionality might reject the idea of a post-identity approach as either unfeasible or undesirable. Second, in relation to the capabilities approach one might detect considerable overlap for instance in terms of how both point to the limitations of understanding individuals as rational independent actors. Third, relating to human dignity, some might argue that it is possible to align human dignity with the notion of universal vulnerability.
Beyond the critique towards vulnerability on the basis of the three other approaches covered in these blog posts, some more general points of criticism are equally important to consider. Again, these aspects should merely be read as a few pointers since the scope of this blog post does not allow for any comprehensive list or in-depth discussion. Several authors have argued that the notion of vulnerability can be appropriated for different (and potentially contradicting) purposes. This seems to lead to an implementation problem: how exactly should vulnerability be identified and who should determine these factors of identification? Depending on the answers to these questions, the notion of vulnerability entails the danger of being appropriated for social control instead of for the originally envisaged social protection or assistance. In addition, if any identification of vulnerability does not identify vulnerability on the basis of several dimensions, the notion risks to become essentializing, paternalizing and/or victimizing. What is more, even if these dangers are accounted for, the general meaning of the term itself as implying a defenselessness or weakness that should be mitigated is difficult to change and it is questionable whether these implications really encourage the most desired outcomes in terms of the human rights of excluded or marginalized individuals or groups. Yet, some of these criticisms seem mitigatable through further research on the notion of vulnerability.
Hence, the notion might benefit from some fine-tuning through additional theoretical discussions as well as empirical evidence collection. In light of the notion’s ambition to emphasize lived experiences, any such discussions or further elaborations should pay particular attention to these lived experiences. This could have the additional benefit of making the notion more than a “heuristic tool” and render it practically useful for law and policy. Such fine-tuning should include (but is not limited to):
- Clarifying the relationship with concepts such as risk, need and resilience as well as the relationship with the three other approaches discussed in this blog post series.
- Collecting more empirical evidence on the potential of the notion of vulnerability as prioritizing tool in comparison to other targeting and prioritizing measures.
- Concretizing the factors that contribute to vulnerability with regard to a specific issue rather than at a general level.
- Discussing whether and how one could prioritize among different vulnerabilities and whether and to what extent one can (or should) distinguish different levels of severity in that respect.
Overall, the notion of vulnerability seems to constitute a potentially useful tool for assessing the origin of disadvantage, exclusion or marginalization at three levels: the individual (embodied factors), the immediate surroundings (situational factors) and the society as a whole (structural factors). Yet, anyone engaging with the notion should be careful to not merely refer to the term because it is currently en vogue since the notion of vulnerability would then risk becoming a mere framing tool without actual content.
 Compare Martha Fineman, ‘Introduction‘ in Martha Fineman and Anna Grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013), 1.
 Martha Fineman, ‘Equality, Autonomy and the Vulnerable Subject in Law and Politics‘ in Fineman and Grear (2013), 20-21.
 See, e.g. Barbara Misztal, The Challenges of Vulnerability (Palgrave 2011); Romina Sijniensky, ‘From the Non-Discrimination Clause to the Concept of Vulnerability in International Human Rights Law’ in Haeck et al (eds.), The Realisation of Human Rights: When Theory Meets Practice (Intersentia 2013), 259-272.
 Veronika Flegar and Marie Veys, ‘De Europese verplichting voor procedurele waarborgen in de asielprocedure en de Nederlandse implementatie vanuit kwetsbaarheidsperspectief’, Journaal Vreemdelingenrecht, 11:2 (2017), 28-49.
 Fineman, ‘Introduction’ in Fineman and Grear (2013), 2.
 Martha Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’, Yale Journal of Law and Feminism, 20:1 (2008), 10ff.
 Fineman, ‘Equality, Autonomy and the Vulnerable Subject in Law and Politics’ in Fineman and Grear (2013), 18.
 Ibid., 26-27.
 This issue was raised by several academics in discussions with the author at a variety of different conferences.
 The close relationship between vulnerability and the capabilities approach was also confirmed by Alexandra Timmer in a discussion with the author.
 Compare, e.g., Alexandra Timmer, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in Fineman and Grear (2013), 150.
 Compare e.g. Sean Coyle, ‘Vulnerability and the Liberal Order’ in Fineman and Grear (2013), 61-76.
 Compare e.g. Catherine Brown, The Concept of Vulnerability and its Use in the Care and Control of Young People (PhD Dissertation University of Leeds 2013).
 Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’, International Journal of Constitutional Law, 11:4 (2013), 1070.
 Fineman introduced vulnerability as heuristic tool. Fineman, ‘Introduction’ in Fineman and Grear (2013), 1. Kohn calls for a more directly implementable approach to vulnerability for policies. Nina Kohn, ‘Vulnerability Theory and the Role of Government’, Yale Journal of Law and Feminism, 26:1 (2014), 27.