Countering Neoliberal Logic with the Vulnerable Human Subject

Martha McCluskey

Sept. 14, 2021

This post was originally published on LPE Blog as part of a symposium on vulnerability theory and law and political economy (LPE). Reprinted with permission.

Assumptions about the human condition shape the legal rules and institutions that structure the economy and state. By re-centering law on a clearer understanding of the human subject, vulnerability theory can strengthen law and political economy (LPE) efforts to address accelerating threats to democracy, equality, and the environment. In particular, vulnerability theory responds to neoliberalism’s use of the liberal ideal of individual autonomy to undermine liberal goals of democracy, human rights, and equality. Those goals can be better advanced and defended by affirming the universal human fact and societal value of embodied, embedded beings.

Law plays a leading role in disseminating and legitimating neoliberal ideas. Yet, legal theory has lagged in addressing neoliberalism as a paradigm shift. As Corinne Blalock astutely observes, neoliberal arguments deftly turn left critiques of liberalism toward right-wing ends. As one strategy for resisting that maneuver, Blalock urges legal theory to dislodge the neoliberal reconfiguration of the legal subject as the entrepreneurial, self-reliant individual. That idealized subject helps shape a neoliberal narrative where unequal, self-serving, and undemocratic power fuels freedom and prosperity.

The theory of the vulnerable subject, developed by Martha Fineman, supplants the autonomous individual subject that grounds both liberal and neoliberal legitimacy. Vulnerability theory’s attention to the human condition affirms that state and society are driven by and for beings who are pervasively, yet diversely, dependent on substantive personal and collective factors beyond their individual knowledge and control. “[W]e are born, live, and die within a fragile materiality that renders all of us susceptible to destructive external forces and internal disintegration.” Law cannot meaningfully advance freedom, prosperity, or justice guided by an ideal of a sovereign individual who naturally and independently takes charge of self, others, and the environment.

Fineman’s approach rejects the typical use of the term vulnerability to distinguish populations or persons by their deficiencies, an approach that presumes a normal (or normative) state of independent rational agency. Every seemingly successful and self-sufficient individual has developed their strengths through unequal collective support and protection, conditions they have neither individually chosen nor fully reciprocated—including the family, natural environment, legal and economic systems, historical investments and dispossessions, and physical and social infrastructures. This view identifies barriers to individual and societal well-being as, first and foremost, failures of human institutions that insufficiently and inequitably respond to the diversely and uniquely experienced, yet universal, human condition of vulnerability.

Neoliberalism also highlights human dependence, agreeing with center-left liberals that individual human rationality and agency is typically bounded and subject to bias and other failures. But neoliberalism denies those limitations are reasons to supplement negative liberties and formal rights with substantial social provisioning and regulatory controls. Instead, neoliberalism uses human frailty to justify strong state support for a “free market” designed to undermine the welfare state and legal protections for equality and social responsibility. Neoliberal logic presents most human individuals as naturally flawed rational actors who require market discipline to be legitimate decision-makers. Neoliberalism imagines a free market where impersonal, formally equal processes of individualized mutual exchange operate as an “invisible hand” to correct human failures.

Neoliberalism claims that, in contrast to this market ideal, politics inherently amplifies human failures of rationality and autonomy because the political process uses unequal collective power and imperfect information to advance subjective, self-serving, and contested human judgments. Whatever the failures of markets, neoliberalism warns that government failures will be worse, because any supposed public interest or ethical principle always depends on the unchecked self-interest and inherently limited capacities of human individuals. Neoliberalism concludes that rational and fair government depends on strengthening the power of seemingly inhuman (or inhumane) markets to select, reward, and empower a few individuals with super-human capacities for winning while disciplining and disempowering the rest.

Rather than idealizing either collective or individual human judgment, vulnerability theory turns the neoliberal premise of human limits against the neoliberal narrative. Given the essential human condition of dependence, both liberal and neoliberal ideals of individual autonomy impede rational analysis of legitimate governance. Vulnerability theory re-orients the liberal ideal of liberty to focus on human resilience: the power to preserve and advance one’s integrity and well-being in the face of change, harm, and misfortune. Vulnerability theory rejects the premise that resilience is attributable to individual character and behavior. Instead, resilience results from public and private institutions that provide the resources and protections that enable individuals and communities to achieve long-term goals and to recover from setbacks.

That institutional focus flips vulnerability from human weakness to potential human strength. Human vulnerability generates potentially expansive human capacities for producing and improving institutions designed to equitably advance and sustain resilience for finite human beings on a finite planet. Given the human condition of inevitable uncertainty, interdependence, and fragility, societal prosperity depends on supporting diversely situated knowledge and inclusive power, as well as reducing catastrophic human failures—not on maximizing rewards for a few seemingly superior winners.

Further, vulnerability theory counters the ideal of individual autonomy as a matter of ontology, not simply as a normative position. By centering human agency and well-being on institutional design, not individual autonomy, the vulnerable subject strengthens the ground for LPE work. LPE scholars have extensively described how “free markets” pervasively operate through hierarchical, centralized institutions that privilege and protect some interests and individuals over others. Neoliberal and liberal markets cannot logically reflect or perfect individualized choice and competition, as Jamee Moudud explains, and instead are constituted through substantive coordination rights that produce and distribute decision-making power, as Sanjukta Paul analyzes.

Contrary to the theory that law structures markets with formal rights to individual mutual exchange, Fineman explains that seemingly private individuals act through hierarchical and value-laden legal roles and relationships that confer unequal substantive privileges and restrictions. Examples include the legal distinctions governing owners and renters, platform providers and users, employers and workers, parents and children, producers and consumers, creditors and debtors, citizens and aliens, and criminal suspects and those who can presume or prescribe others’ criminality—or those whose criminality is routinely tolerated and exonerated. These substantive legal regimes provide affirmative support for some people’s resilience while potentially increasing others’ exposure to risk and loss.

Social justice, in this view, is a matter of redesigning these substantive legal relationships, rather than carving out special, narrowly targeted, substantive exceptions to presumptively neutral principles and processes. Public support for “social” goals such as human and environmental health, housing, racial justice, education, and family care should be evaluated as investments in equitable resilience vital to human agency and prosperity, not “redistribution” that diverts resources from economic production. Similarly, legal rules and regulations protecting against risks to workers, consumers, or the environment do not override meaningful freedom of choice. Instead, these aim to enhance resilience by providing individuals with better choices and more collective power to re-direct the economy toward long-term human well-being rather than the extraction of human value.

This focus on affirmative institutional power for resilience counters both libertarian and communitarian challenges to the liberal state, shifting the primary normative goal from individual responsibility to institutional responsibility. At the same time, vulnerability theory redirects the subject of state responsibility and accountability from the formally equal liberal individual to the particularly situated, substantively embodied human subject. This shift directly challenges neoliberalism’s ideal subject: the super-rational, self-maximizing entrepreneur unencumbered by social commitments or physical limits. That neoliberal subject justifies subordinating the democratic citizen and human society to the impersonal neoliberal corporation or algorithmic intelligence, or to an efficiency-oriented state that claims to transcend human partiality and subjectivity by objectively maximizing a formal, immaterial monetary quantity.

Vulnerability theory does not neatly prescribe specific solutions to the many urgent challenges of actively pursuing collective power for justice as dependent, unequally situated human beings with diverse and often conflicting perspectives. It does, however, offer a conceptual frame for moving debates and struggles over those solutions beyond neoliberalism’s deceptive, destructive, and fundamentally anti-human logic.

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