Vulnerability Theory with Martha Fineman

Money on the Left discusses “vulnerability theory” with Martha Fineman, Robert W. Woodruff Professor of Law at Emory University. Going beyond the politics of non-discrimination and formal equality that animate liberal politics and policies, Fineman underscores the human being’s embodied vulnerability throughout the life cycle in order to politicize, rather than pathologize prevailing structures of social dependence. Working primarily in the context of constitutional jurisprudence in The United States, Fineman argues for forms of government, economic institutions, and social organizations that variously take responsibility for the vulnerable subject’s ongoing resilience in a contingent world. In doing so, she controversially re-conceives universality through, rather than against difference, expanding the language of feminist and intersectional politics in capacious ways. In our conversation with Fineman, we plumb the depths of vulnerability theory and ponder its significance for left politics oriented toward public money and provisioning.

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Transcript

The following was transcribed by Aditya Sudhakaran and has been lightly edited for clarity.

Scott Ferguson: Martha Fineman, welcome to Money on the Left, it’s such a pleasure to have you speaking with us today.

Martha Fineman: Well, it’s a pleasure to be here.

Scott Ferguson: So maybe to kick things off, you can tell our audience a little bit about yourself, maybe if you feel comfortable, some of your personal background, but certainly your professional and academic background.

Martha Fineman:  Well, I think my personal background really profoundly affects my professional status, in my professional position. For example, I am the first person in my family to graduate from high school, not college, but high school. I had my first child when I was 18. My second one, when I was 20, my first divorce at 21. I didn’t go to school until after that with two children, two small children. As a single mom, I continued my education largely through the help of government programs. 

I started an underground newspaper when I was a college student, which helped to support me through college, daycare center to help with taking care of my children and other people’s children. When I went to law school, I had not only my two original children, but my twins were five months old. So I had four children. This is not the typical background that you would have for a professor(!) A law professor, professor of anything, actually. And I really think it profoundly shaped the way that I view the world, and the way that I understand our dependence as individuals, on social institutions and supports. 

I didn’t take anything for granted and I think that that’s really reflected in the work that I do, which is very focused on institutional structures, and institutional relationships. I did my legal education at the University of Chicago on a full scholarship. They were wonderful, and began my teaching career at the University of Wisconsin. I was there for about 12 years, and then got a chaired position at Columbia University, went from there to Cornell, where I held the first chair in the country in feminist jurisprudence. And then from Cornell to Emory, where I’m Woodard professor, which is a kind of university professorship, focusing on legal theory.

William Saas: I wonder if you might say a little bit more about that, that biographical journey. At what point it became clear that you wanted to get into this sort of institutional jurisprudence. I mean, was law school the goal and then along the way, it formulated more clearly that institutional jurisprudence was with the direction you wanted it to go?

Martha Fineman: Well, I always had ambitions to change the world, right!? Which wasn’t very hospitable to the way that I was, into which I was born. I tried various things. As I mentioned, I started an underground newspaper called The Populace, interestingly enough. I started Baker Center, and was involved in all sorts of political things (this was) in Philadelphia. I went to Temple University as an undergraduate and I took a little stint working with skid row alcoholics as kind of a counselor. Did a variety of different things and I really, naively thought that lawyers had a whole lot of power. So I thought the way that lawyers operated like the social workers would come in, but it was the lawyers who actually could control the system, control the courts, and so forth. So that was one of the reasons I went to law school. 

When I went to law school, I always had in mind that I was more interested in the academic side of law than I was in the actual practice. Or at least, that became apparent the further I got into law and the more I saw that it really explained the structures of society and power in society in a way that I hadn’t envisioned outside of the legal context. So I always wanted to teach and I was really very fortunate that I had that opportunity. I clerked for a federal judge, but I really didn’t ever practice law. Instead, I went right into teaching. 

Scott Ferguson: We invited you to speak with us today about your legal theory, which addresses vulnerability as a key foundation of the human condition and the social manifestation of such vulnerability as dependents, which you primarily think through in the context of the United States. But before we move into some of your positive claims, I think It could be helpful to work through some of your critiques, your pretty profound critiques of mainstream, dominant, liberal, legal jurisprudence and discourse, to get a sense of the world into which you’re intervening.

Martha Fineman: Right, one of the things about the legal subject, what I call, “the legal subject,” but I want to point out that it is not only the legal subject, it is the theoretical subject. It’s the way that we imagine the everyday, ordinary being or person who’s at the center of our theory, be it legal theory, political theory, economic theory, anthropological theory, historiography. Whatever it is, we imagine a certain kind of human being at the center of our endeavors, our theoretical endeavors. So in thinking about this, for me, the typical way that we think about it is in terms of ‘autonomous,’ and here we’re talking about people having agency, autonomous, independent, self-sufficient individuals. Liberty seeking individuals, they want their freedom and their liberty. We see this very much today in the context of what’s going on with COVID, and people, you know, “this is my right!” 

So all these people or this subject is taken out of context. It stands outside of society, it stands outside of the institutions that inform our day to day lives. It is a radically individualized subject. And in addition to being radically individualized, what this means, ultimately, is that the state in which that individual is placed in the theory, is of necessity restrained. Is prohibited from interfering with the independence, interfering with the liberty of this idealized, (and I might add) totally incomprehensible and inappropriate legal subject to this autonomous, independent legal subject. So it’s that tradition, the theoretical tradition, not only in law, but particularly in disciplines – it’s the “rational man” of economics. 

Even in the context of critical theory, it’s the oppressed or victimized subject of, you know, it individualizes. It focuses on the individual and not on the social structures surrounding the individual. So that’s what vulnerability theory challenges, again, it’s this radical, individualized notion of the theoretical subject, and was to place that subject in the context that actually defines who that subject is and what that subject becomes. 

William Saas:  So before we leap into your claims about vulnerability and dependence, would you mind briefly sketching out how you came to these claims over the course of your career?

Martha Fineman: Well, I started out, and I still consider myself to be a feminist theorist. I was very concerned with gender, and with the exclusion of women from a lot of significant public and political areas of life. And I do want to say, it’s extremely important that we developed a discrimination model that argued against discrimination and exclusion and for inclusion. That was an essential, and necessary step in the evolution of a just society. So you can’t have people assigned to different kinds of areas and excluded from the main important political areas. 

What happened during the 20th century was, of course, that those formal exclusions, not only gender, but race, religion, all sorts of them were battered down, and the notion became anti discrimination and inclusion. So that if you look at law today, what we have actually is a formally equal system. I mean, everyone is supposed to be included, improper discrimination along these identity categories is impermissible. So that’s where I was, initially. And that was an important part of the early work that we all did. 

But it occurred to me in realizing this, and this happened in the context of the family, that the problems that we saw in the family were quite often not problems associated with gender or sex or women, but rather problems of the way that we looked at the family in the context of the larger social system. So the problem was not that caretakers or women as caretakers, were discriminated against (although that was one way to look at it.) But the larger problem was that caretaking itself was devalued by the governing system. It didn’t matter who did the caretaking. It was the practice, the notion of caretaking that was devalued. It wasn’t accommodated, there wasn’t a room made for it. We defined caretaking as a task of the family alone, the workplace was not asked to adjust to accommodate caretaking.

Rather than having institutional arrangements across the board to accommodate this vital and important social task, raising the next generation, what we did was confine it within the private institution of the family. And it seemed to me that it was saying, “Okay, well, hey, boys, you got to share the load equally and do the caretaking too.” Was not and did not solve the problem. The problem was not the individual relationship between husband and wife, mother and father. The problem was the relationship between the family as a social institution and other social institutions, particularly the state and the workplace.

Scott Ferguson: Yeah and it seems like that extends outward, right? From the family. So such that, for example, we can talk about a privatized health care industry. That model of privatized care is equally culpable of not addressing vulnerability in a systemic way.

Martha Fineman: It’s not only healthcare and it’s not only care, and this was another evolution in my thinking, moving from what I initially did was to articulate a theory of dependence or dependency that really focused on family and caretaking. And of course, there were a number of feminist theorists who looked at care work and care as the way to organize that. But the family is embliotic of larger social arrangements. 

In other words, the dependence that we see, not naturally recognized in the family, but for caretaking. We are all dependent on social institutions and relationships, and we move from this family into other areas of dependence, like the educational system, the employment system, the finance system, the healthcare system; We’re all dependent on the social arrangements and social organizations that define these systems for us. So this dependence is something that travels, what varies is the particular set of institutional arrangements. We are less dependent on the family as an institution as we age, but we are nonetheless dependent, equally dependent on other social institutions as they come into play. 

I just wanted to mention that one of the big realizations for me, also in terms of why I find discrimination analysis, not only inadequate, but in fact, problematic is the question of what do we gain if with a discrimination model? Where essentially the complaint is you’re excluding me, the remedy is to include me. So what do we gain from inclusion in an existing system that is unjust or corrupt? I mean, what has actually been gained from that? What we really need is not a personnel change or a personnel expansion, but rather a fundamental restructuring of the values and the purposes of the social institutions. That’s really what’s necessary. 

Also, one of the more recent realizations with vulnerability theory is that focusing on equality as the paramount consideration can also be very problematic. And again, back to the institution of the family. There are social relationships that are inherently and desirably, unequal relationships, the parent child relationship is one. So a discrimination model and equality based model doesn’t help us think about how we can justly organize these relationships of fundamental inequality. I also now think about other relationships that way, employers and employees in the context of work, we don’t ask and we don’t want employers and employees to perform the same functions. They are not equals, although we pretend they are, because we construct this fiction of the employment contract. Also, you have bargaining between equals which is all nonsense, most of the time. But rather, this isn’t again, it’s a reciprocal relationship of inequality and there should be unequal notions of responsibility. Doctor/patient is another one. Teacher/student, there’s all sorts of inherent inequality and unequal relationships that are just totally passed over in the dominant ways that we think about social justice currently. 

William Saas: The latter is especially relevant now as it’s the end of the semester and grades are coming to their relative equality or inequality of student and teacher comes into stark relief. I wanted to say that one of the things that I think we appreciate about your work, particularly is that emphasis on sort of, not stopping really at a step in critique. Continuing to move forward past the discriminatory discrimination model. To a more robust and encompassing critique of the system, and thinking through, developing, cultivating values that are more ethical and better, right, but that project is sort of ongoing. What we know I think, from our perspective, as humanities scholars who are interested in political economic theories and heterodox economics, and specifically modern monetary theory is that that’s a tremendous amount of work. That it doesn’t stop. 

On your reading, is it a matter of well– is it defensible to say that pragmatically, we have the discrimination model in place right now and we’re working with it, right? And we’re improving it incrementally. We don’t have time or resources to sort of pause and have this sort of conversation and the mass pedagogical moment that you’re calling for. Another way to rephrase it would be: How do we get to those questions? And then I think that one of the things I appreciate about watching your lectures and reading your work is that you are not afraid to teach and to pause and say, “This is how we’re thinking now, this is how we need to think.” So a lot of thoughts there. But how do we do it?, I guess, is the takeaway.

Martha Fineman: There’s a lot of things I want to put your question in the context of a lot of other things. So for example, I recently read and it struck me as absolutely true. If you change the way people think about things then you will also change their actions, although it’s hard to change actions if you don’t change how people think. And I think that this is a lesson that feminists should have learned and necessarily did not learn. When they took an idea, again, an abstract concept like equality, and sought to impose it on empirical circumstances where equality was not the model, in fact, the imposition of equality resulted in greater inequalities

And I think that with a discrimination approach where we are now, again, since we have won many of the battles, at least in a formal sense, discrimination is illegal. Discrimination is condemned, those are significant battles. We should recognize that that’s the case and welcome that. But where do we go from there? Again, what good is inclusion, if the institutions that we’re including ourselves in are in fact unjust, operate on jostling? So we have to think about how it is, I think the continuation of the discrimination model actually fractures the theoretical subject, the subject of concern in radical politics, progressive politics, whatever you want to call it. 

It fractures that subject in ways that allow those who are interested in maintaining the status quo, to turn us against each other, or to view the fragmented theoretical subject. Address their concerns, but not the concerns of all of the people, “the others.” “The others” who share that set of concerns but are excluded by the particular identity category. Whether it’s race, gender, religion, whatever, sexuality. Again, we fracture the possibilities, the solidarity that is possible; The bringing together as a collective, talking about social justice, justice for everyone, even though there’s a disparate impact. People are differently affected. We are all affected, in one way or another. I think that it’s maintaining that, what the discrimination model, in fact minimizes the past ability of real state action. The state becomes a standby to ensure, kind of an umpire making sure that all these disparate groups get to play fairly rather than taking an active role in ensuring a more just society for everyone

William Saas: Sort of like the neoliberal nightwatchman of equality!

Scott Ferguson: Yeah, yeah. Listening to you speak, I just keep coming back to Hillary Clinton’s last campaign for the presidency. One of her tropes that I hated so much, and I shouldn’t even pick on her because it’s just a standard trope. It’s not Hillary’s trope, but she was the candidate. She kept saying, “Everyone should have a chance to succeed. Right? I kept thinking, “No!! Everyone should be taken care of!” That’s different. That is such a different premise. We don’t want to give everyone a chance to succeed, but maybe they won’t. And, you know, we did what we could.We need institutions that do active ongoing caretaking and mediating along the way. 

I think we’ve teed up the background and the stakes pretty well. What I’d like to give you a chance to do is to get us into some of the weeds of how you’re thinking about vulnerability as constitutive of the subject. How this is related to what you call “dependency?” You also differentiate dependency in important and complex ways in your work and I just want to give you a chance to do some theorizing with us along these lines with these terms.

Martha Fineman: Well, first, vulnerability is a term that’s in common use. Usually, when people think about vulnerability, or the vulnerable, they’re thinking about people or individuals or groups who have been subjected to discrimination and exclusion or disadvantage, in some ways. So it has this negative kind of connotation. When I use the term vulnerability, I’m using it as a term of art. And I chose vulnerability carefully, because to me, there is no position.

I think we know this both empirically and intuitively, there is no position of invulnerability. None of us are totally invulnerable from outside forces or internal forces, that will change our position. 

So vulnerability, to me, is the susceptibility to change. 

Now, a vulnerability analysis is based on or it begins, and I talked about it this way, reasoning from the body. So that where we begin in our theoretical inquiry is not with some abstract concept, like autonomy, or equality, or dignity, on these abstract concepts, but rather with the reality, the empirical reality of our physical material body. And what does that mean? That is, in fact, the human condition, that body is vulnerable to change. By change, I mean, both positive and negative change, our bodies develop As infants we are totally helpless. But we develop, these are positive developments. There are also negative developments, developments that are caused by accidents and injury and environment, and so forth and so on. Negative changes within our bodies, illness etc. But both positive and negative changes. 

One of the things that we have to realize, and again, that factors into the concept of vulnerability, is that many of those changes, many of those forces that change are totally beyond both individual and collective control. That we, in fact, cannot control everything and that’s a really hard lesson for someone in the 21st century in an advanced democratic society to actually accept. But it’s true. Many of these are beyond – many of them can be anticipated and planned for, we can have, again, social policies. People age and guess what, we should have social policies that plan for that! People get sick, things like that we can actually do but we don’t. Because we tend to think of ourselves as invulnerable and the vulnerable individual is that “other,” who’s not us. Who we shouldn’t worry about because somehow they’re inferior or whatever. 

Vulnerability analysis begins by reasoning from the body, the realities of the body, it is an empirically based theory initially. Now there is a normative side to a vulnerability theory and this is extremely important. We have the physical, empirical realities of the body. The normative part is what does our realization about the body mean for the way that we should think about constituting a just society? How should we design our institutions? How should we proceed, given that we are vulnerable individuals? And again, here’s where the concept of dependence comes in. Because of the limitations of our body and the susceptibility to change. We are throughout our lives, always, constantly dependent on social institutions and relationships, the family, the workplace, the financial system, the healthcare system, the social welfare, you just go on and on. We are dependent on those institutions throughout our lives. How should those institutions, in fact, ‘designed’ given our vulnerability; How should they be structured so that they are in fact, just?

William Saas: What role do ecologies play before or alongside these institutions?

Martha Fineman: Yeah, I’ve had a couple of graduate students doing their Ph.D. dissertations on vulnerability theory and the environment or, vulnerability theory and animals. Again, one of the significant things about vulnerability theory, in contrast to both liberal theory and much of critical theory, is that the individual is really put in a social context, which includes the environment. It’s not only man made, excuse the term! A man made environment, but it’s also the natural environment. We are part, we are dependent upon all of these things. So we need the animals, the air, the ocean, everything. Angela Harris actually wrote an interesting piece using vulnerability theory, talking about the environment within and how these bacteria in our guts that totally our health is reliant on. So that, it displaces the individual, as the primary focus of our concern in our policy to look at the individual, again, within these contexts, and the context certainly would include the environment.

Scott Ferguson: Yeah, and I keep hearing you grammatically, it’s interesting, you shift when you’re talking about liberal theory, you’re talking about the self of the subject, but then you often shift to our. That’s something that I think is worth noting and tracking as we’re trying to rethink our own use of language and grammar. 

So one of the aspects of your work, which you’ve already hinted at, but I want to highlight in a more focused way, is that you’re making a pretty radical claim to universality. Which I don’t know if we’re in the age of, postmodernism or anything like that anymore. But I would say that, throughout my lifetime, and my intellectual academic development, that was naughty, you know? One doesn’t appeal to universality, because that’s discriminatory, right? That’sa highly problematic move. Butyou take this on in a very different way. And you’ve had some critics of this move and I want to just give you an opportunity to spell it out and, how you’re responding to critics and, why this rethinking of universality so important?

Martha Fineman: Well, again, the universality is the body. And we all have physical bodies. Now there are differences, and in fact, those differences– Well, there’s two kinds of differences that we can think about. So the body is the fundamental reality, the body is the human condition, we are all born into bodies. And when we escape them, we die. Right?! There’s two kinds of differences that people are thinking about here and I think that a lot of the postmodern critique is concerned with the demographic differences, the differences that are at the center of a discrimination analysis Differences like age and sex and race and so forth, ability. 

Those are the demographic if you take a slice of society at any one time, you can look and categorize people according to all these demographic differences. Again, a vulnerability analysis says, “Fine, there is nothing wrong with attacking discrimination when it exists.” That’s a positive thing to do. It is not sufficient however, if we’re concerned about defining the appropriate relationship between the governing system and the individual. Then we have to look at the differences that arise in the body over time. So one of the strengths of a vulnerability analysis is that it takes a life course perspective, looking at the developmental, not the demographic, but the developmental differences that occur within every human body. (Actually, they occur in animals, but skip that one for now!) 

But the developmental differences, and again, the way that we move through social institutions and relationships, because of our developmental phases, and increased abilities, capabilities, or decreased abilities and capabilities over time. So that places it outside of the characteristics of the individual, to the functioning and structures of society. it’s a different kind of “different,” it’s a different kind of difference. I think that when the postmodernists would talk about ‘deconstruction’ and ‘non essentialism,’ what they were talking about was those demographic differences, but I don’t believe even they could deny the realities of the physical material developmental body.

Scott Ferguson: Do you appeal to specific theories of ontgenices, or developmental models? Are you working with more of an intuitive level with that analysis?

Martha Fineman: One of the things I love is when sociobiologists and people like that get a hold of me! Evolutionary anthropologie. I’m working through all these concepts trying to build this theory, and it’s always of interest to me when people of other disciplines and other areas come to me and say that it relates to the work that they are doing. I mean, I actually just did this piece criticizing human rights because vulnerability analysis is an alternative to both human rights and a social contract paradigm, both thinking about state responsibility. In thinking of human rights, there is a way in which rights, which are a highly individual concept, are argued as necessary for reproduction of society, which is a socio-biological…You have to have an altruistic approach or else society will die out if you don’t care about the collective. I listen to that and I find that of interest but what I want to do is to have a comprehensive integral theory that actually takes into account the factors that I think are important. I’m not interested in justfying murder, or rape. 

Wiliam Saas: I wonder if, does it seem like there might be something at play broadly in terms of this block to a discussion of universality or an acceptance of universality and indeed, an acceptance of vulnerability theory and all of its implications? Well we don’t like our bodies and we don’t like to think about them and we don’t want to contemplate the fact that we’re going to die. And I wonder what level you might have thought about that kind of discomfort with embodiment informing and shaping the difficulties you have encountered? 

Martha Fineman: That’s really true and you know, I’m not a psychologist but I do think there’s a lot to that. The notion of control also, that we like to feel that we’re in control. “I did everything I could.” “I did everything right.” “I don’t deserve this.” What happens to us in fact, is random, largely.  You can call it luck, whatever.  I do think that that’s very difficult for many people to think about. Which worries me actually, when I first started vulnerability theory I thought about 9/11 and Katrina. The things that expose to the average everyday person are inherent vulnerability. Things are external, that they can’t control. Not only they can’t control but their government can’t control, or doesn’t control, doesn’t respond appropriately. You can see how easily the failure to understand vulnerability and its universality, to be manipulated for nefarious political reasons. This same thing is true with dependence. I mean dependence, what is the right wing’s cry for any welfare proposals? “This dependency. This generation of dependency.” As though that is some sort of evil admiration when if in fact it’s totally normal and we all experience it. Again, I don’t think theory and academics do anyone any service by pretending that those things don’t exist and by not confronting them and trying to educate people! You know Education starts with one person at a time, one group at a time. And again, unless you change how people think about things, you’re not really going to change their actions or responses. 

Scott Ferguson: One podcast at a time!

Martha Fineman: I agree!

Scott Ferguson: So I want to shift our conversation a little bit. We’ve been talking about the state and the responsibility of the state, but I’d like to shine a sharper light on that. You make some quite radical claims about not just the state, what it is? What it isn’t? What it’s responsibilities are. But also about the constitution and the question of constitutional jurisprudence. Could you take us to a little tour of what is the State according to Martha Fineman? And how should we rethink, or maybe be rewriting, the Constitution.     

Martha Fineman: Well, the state is one mechanism of governance. What we call the State is a mechanism of governance. I think one of the other things that distinguishes vulnerability theory is that it recognizes not only the inevitability of governance systems, but the desirability of governance systems and to go further and say, the desirability of the State. We all live in, again back to society, and are living in a society, and are living in institutions and relationships. We all live with sets of rules that define our day to day existence. They define who’s in a family, who’s not. What the consequences of a family are. They define our employment relationship, what the relationship is between employer and employee. They define our banking system, our healthcare system, our insurance, whatever it is, there are sets of rules.  That defines our interaction, our day to day interaction with each other. So that’s one set of rules. 

There’s another set of rules that define the governing systems relationship to those who are governed. So that’s another kind of hierarchical relationship. So sets of relationships. Vulnerability theory deals with both of those sets of governing relationships, although it’s more concerned with the day to day relationships than the governing system, although it does address that. But it’s more concerned with the day to day relationships. So I think, for me I that there is more positive, radical, transformative potential in a governing system that we call the state, which is the democratic state, susceptible to challenge, susceptible to democratic process, which puts Incidentally, the responsibility on us as citizens, than there is for other governing systems. Because if it’s not the state, the Democratic state that’s acting, to define those rules, to define those relationships, to tell us what our day to day existence is going to constitute, it’s going to be something else. Multinational corporations, insurance companies, religion, there’s one. Or the proud boys, and they’re ak 57, or whatever the guns are. 

Someone is going to tell us the rules or someone who’s going to impose that. Society cannot function without those rules. Whether that’s a radical or a realistic way of actually thinking about governing systems, I’m not sure. I mean, it seems to me that, you know, again, it’s hard to think of the human being, an individual living outside of society, and society is constituted by sets of rules.

Scott Ferguson: That answers some of it. But I’m wondering if you can speak a little bit more about your understandings of let’s say, the responsibilities of the state, and maybe something about your thinking around this concept of resilience?

Martha Fineman: I say the resilience comes from the institutions in relationships. Resilience is nothing more than the resources that we get and by this I do not mean only economic or material resources. I also mean things like security, comfort, love, or the resilience of the resources that we have as human beings, to confront and ameliorate our vulnerability. To survive and thrive in the face of these unending changes. Some expected, others not, some within control, others not. It’s the resilience that gives us the ability to withstand and thrive in those contexts.

 Now, no one is born resilient. Resilience rather, is gained through our experiences within social institutions and relationships, so that our family instills in us a certain set or not, security ability, love, material resources, health care. These institutions provided, relying on other institutions like the family needs the healthcare system. The family needs the state. The family needs that employment system, so forth, and so on. So we have the symbiotically arranged set of social institutions, where resilience is built through these individual interactions in social institutions and relationships. 

So vulnerability theory and thinking about inequality really looks at the inequality in resilience, rather than the inequality in other forms of inequality. It’s really how can we transform our institutions, so as to provide greater resilience. I mean, resilience should be the end and the responsibility of and since those institutions again, institutions and relationships are controlled by the governing system by the state. It’s their responsibility, then to see that they in fact, operate in a just manner. Vulnerability theory would say that, in fact, our vulnerability is the reason that we constitute the state. It is the reason we constitute social relationships and institutions. This family arises because of our vulnerability. The community, the state, the international community arise because of our vulnerability and that is the justification for those institutions. We should always judge those institutions by how well they then respond to the vulnerability. That’s the basic fundamental reason for their existence. So how are they in fact responding to it?  

And the state, of course, as we know, refers responsibility to other institutions. This is what privatization is all about. But again, we should judge those institutions, by what function, what public function they’re supposed to be serving. So how well does the corporation in fact, generate a vital economy, prepare workers for the you know, for the future?  How well do these institutions function? Not for the purpose of their shareholders, for example, but for their social purpose in allowing them the privilege of all of these legal advantages that the corporate form has given their social role in reproducing society, in generating and distributing wealth in society, and resources in society. And we don’t judge them that way, we judge them by a totally different set of – and this would be a big vulnerability project. It’s again, dismantling these institutions in terms of the function they’re supposed to serve in reproducing society, and the functions that they’re actually serving? And how should law be reformed to reflect the former rather than the latter?

William Saas: This is a point of overlap that I think excites me, Scott and others in our community. Which is our sort of shared interest in perhaps not dismantling, but reconstructing, deconstructing, recovering institutions, and remaking them and channelizing their energies and sort of possibilities in specific ways that serve the public good, and the public purpose. So for us, and this is a long, might be a little bit of a long winded way to set up the question, we want to get your take on modern monetary theory. So for you, it seems like in a sense, the state can go 100 different ways. The best one is probably to be organized and through democracy and democratically and in a way that democracy is kind of an institutionalization of a vulnerability to change. Right? An immutability and a shiftability. Money, I think, for us, and what MMT is sort of made clear for us and coming at this from the humanities, critical theories perspective, seems to be remarkably similar. And is, I think, an institution that is frequently associated with the state, but also for us associated with political agency. 

Could you talk a little bit about how you do or do not see the kind of central observations of MMT, which are that money is not a scarce private resource, and that we can afford most of the nice social programs that we can imagine, right? It’s a matter of resources, not of scarce money, with the kind of claims and things that you’d be interested in accomplishing through your ideal state or a governance system that operates in accordance with vulnerability theory?

Martha Fineman:  Well, just a couple of things. One is that I don’t need to  state it out here as something that’s different and distinct.

Scott Ferguson:  Neither do we.

Martha Fineman: The state may have made the decision to privatize, or refer certain kinds of state functions to other organizations, like the financial system or whatever. But there’s no standing outside the state. The state is, in fact, inevitable. 

As far as money, I think it’s important to think of vulnerability theory, again, focusing on reasoning from the body. The body is pre-political, it’s pre-economic. The body is the body. The body is the body with its limitations, is a dependent, vulnerable independent entity. And it is the reason and the justification and the rationale and the occasion for the construction of all of these other social institutions including monetary policy. But nothing is inevitable in that regard. Money or financial arrangements are in a vulnerability analysis, only a small part of what constitutes resilience. Again, money is part of an institutional cluster of things. It’s one measure or mechanism for fulfilling state responsibility, but it can’t be considered alone. 

I think this is the problem that I have with things like political economy is that they focus on politics, and they focus on the economy, and they forget the rest of the world. And in fact, they forget the world that for most people on a day to day basis, are really relevant to their lives. Security, right? Valuation, accommodation, you know, the structural arrangements that they want, I suppose you could put a monetary value on them. But I think that it would lessen their significance actually, just like you can’t reduce everything, you can’t quantify everything.

And well, I know there are people that would disagree with that, but there are things that you can’t quantify that are qualitatively measurable things that we have to deal with. So money is a mechanism. And I think you’re absolutely right, that, you know, it’s a construct. All right, and it’s all you can play around with in all sorts of ways. But I would urge you not to focus only on the monetary aspects. But on rather, I mean, if you have universal daycare, and universal health care your monetary needs are lessened. I mean, there are things that are provided structurally, that actually have an impact on the way that you might think about the allocation of financial resources. I don’t know if that makes sense. But it’s something I’ve been thinking about because I’m doing a piece for law and political economy. And I’ve been thinking again, about the way that political economy narrows the focus on state responsibility. I mean now, to an important aspect of state responsibility, but it is only an aspect, it’s not the totality.

Scott Ferguson: This makes a lot of sense to us and actually as critical humanities scholars and podcasters and many other things, we are emphatic about theorizing, making sense of money from a nonreductivist point of view. So for us, money is always imbricated as an institution, in multiple institutions. And just as you’ve said, and I guess, for us, we have a similar critique, we share a critique, I think of a political economy and political economies predication of analysis on the individual. And for us, one of the ways that we articulate this through MMT, through modern monetary theory, is a critique of the so-called, “barter story,” that is supposed to originate money. 

The barter story as most of us know, starts with individuals, really an individual, which in a Lockean model has mix their labor with nature, so much that they have a surplus and in order for it to not to spoil, they decide to have some social relations from an autonomous point of view. And then though, it creates barter relationships, and from those barter relationships, there are various kinds of opportunity costs and problems that come along. Then we get a more formalized money system. Then, you know, years later a state comes along, puts its stamp on the coin and vows to protect private property, etc, etc. We all know that story. 

But what that story does is it makes money a question of individuality, right? And in such a reductive way, that pushes institutions, society and government to the outside. Even if they recognize that those institutions and government have a role to play, it’s always a kind of intervention. Right? And so for us, what we would say is, we want to theorize, thematize and critically explore and fight for a much more capacious understanding of money. One that is necessary for universal, free daycare. So if money is not being quantified and tallied up at the individual, private level for daycare, that’s great. But that also for us means that money is being spent, it’s being spent at the federal level. Right? So money’s gonna be somewhere. But the question is where in the vast, heterogeneous array of interdependent institutions, is it playing its role? So I don’t know if that makes some sense as a response to your comments. 

Martha Fineman: Yeah, it does. And I mean, I think it’s reflected in the current discussion now about the budget for the Defense Department, the defense budget versus “Build Back Better.” I mean it’s an allocation question, isn’t it? I mean, but investment in institutions, which is made with money, is more important, I think, in many ways than just tallying up the bank accounts of individuals at the end, which is how we tend to value individuals. I mean, it really is, it’s very perverse.

You might be interested in one of the projects we have, which is actually rethinking professional ethical relationships in the context of vulnerability theory. And I have this project, which is looking at law, business and medicine. And of course, law and medicine have become nothing more than businesses. Just thinking about how you could take away from a transactional analysis, the way that we think about ethics now is on a transactional basis, you know, what happens when “x does y?” And you know, all that, to actually thinking about an ethical responsibility in terms of the professions responsibility to the just reproduction of society to making sure that social justice is done with these transactions, realizing these transactions are not individual transactions, but transactions that actually express fundamental values that society has. So anyway, it sounds like we have a lot of things to work together on. And I’d love to see, I’d love it. If you send me some things you’ve written, that would be great.

Scott Ferguson: Yeah, that’d be wonderful. Billy, do you have any closing thoughts?

William Saas:  I just wanted to say that it’s, of course, really great to talk with you and think through these things, and would love to move forward talking more, as Scott was recounting the, the Lockean story of the origins of money into an Aristotelian story to it goes on, always back, right? That it’s not the traders, or the producers that are vulnerable in that situation. It’s the commodities and things that they’re making that are vulnerable to decay and rot. It’s out of a reaction to the vulnerability of the commodities rather than themselves that they find it necessary to make coins, which are more permanent, right, and can withstand circulation and things like that. And so just vulnerabilities just completely.

Scott Ferguson: “Other.”

William Saas:  “Other,” yes. And where does it go?

Martha Fineman: There’s a great article that actually uses vulnerability theory to look at the vulnerability of corporate attorneys. Not a group that we normally think of, but they are! They’re totally vulnerable to, and again, this is related to the professionalism project. The demands of their clients, you know, the demand. I mean,they’re in a position where their options and their ethics are structured by these external forces. Anyway, yeah. So, it sounds like a lot of really exciting possibilities.

Scott Ferguson: Absolutely. Well, I think that’s a pretty great place to stop. Martha Fineman, thank you so much for coming on Money on the Left.

Martha Fineman:  Well, thank you for having me. I enjoyed this interview immensely. Thank you.

* Thanks to the Money on the Left production teamWilliam Saas (audio editor), Aditya Sudhakaran (transcription), & Meghan Saas (graphic art)

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