Vulnerability Theory and the Role of Government

Abstract

In a political climate in which the role of government is actively being questioned, Martha Fineman’s “vulnerability theory” is rapidly gaining momentum as a justification for expansive social welfare laws. Despite the growing body of literature applying vulnerability theory to a broad range of legal problems, scholars have yet to critically explore the theory’s limitations. This article fills that void by analyzing the theory’s utility and scope. It shows how examining vulnerability theory through the lens of old-age policy reveals the theory’s limited prescriptive value and its tendency — as currently articulated — to promote unduly paternalistic policies. It then describes how vulnerability theory could be refined to provide greater respect for individual liberty and to enhance its value as a tool for defining the appropriate role of government. Finally, it argues that, although Fineman’s theory of vulnerability does not indicate how to allocate resources among vulnerable individuals, vulnerability may nevertheless be a useful construct around which to design social policy.