Prepandemic, when we were still mainly concerned with the Democratic presidential primaries, I was sitting on the porch at Epoch Coffee on North Loop in Austin as I normally do when I overheard Wilson, a rotund, gray-haired lawyer who walks with a cane and frequented the shop to play chess and express his Trump support to whomever he was opposing (often silent college-age guys who nodded and focused on the game while Wilson ranted), tell the woman sitting across from him (sans chessboard this time) that he didn’t want to hear moral reasons for universal health care.
I was incredulous, to say the least. I thought, What else would he like to base it on? Efficiency? I mean, okay, we could do that — it is demonstrably more efficient and effective to have single-payer universal health care: it’s cheaper per capita and provides absolutely everyone with the care they need. But, somehow, I’m rather certain Wilson wouldn’t be interested in those arguments either.
So, I started to think about what might convince him. Say I were to one day actually engage in conversation with him — an event that would undoubtedly devolve into an argument1 — how could I persuade him (assuming he’s reasonable and, thus, persuadable) that, if we agree we’re all equal (which is sorta a foundation upon which liberal legal doctrine is based), we should all have equal access to the necessary medical treatments. To be clear, I don’t intend to ever actually have this conversation with him. The only time I’ve spoken to him in the past is when
Then, of course, the novel coronavirus, COVID-19, washed onto U.S. shores and unprepared hospitals began to be flooded with the fatally ill.
But I want to go farther than just posit human equality. I want to be open to the possibility of an equality recognizing and respecting all beings. Because beyond my lockdown-aided imagined conversation, I was also in search of an alternative to the existing, widespread neoliberal perspective based on Cold War-era methamphetamine- and testosterone-induced belief in the fictitious rational autonomous chooser, homo economicus. That’s for later, though.
I started pondering what quality it is we all — abso-fucking-lutely every single being — have in common that I might base that assumption of fundamental equality on for Wilson. The best thing I could come up with is vulnerability.
I understand the danger and limits of seeking a universal to base my argument on. It can easily become the ground on which lines are drawn excluding those not found inside it. But maybe we’ve reached a time when precarity is once again widespread enough for the “robust” (neo)liberal conception of the modern subject can be reconsidered by more than just leftist academics.
[T]he law is not an inanimate rule book for some inherently fair or meritocratic game of individual chance, skill, or even ‘justice’. It can be a powerful engine for the progressive advancement of some or all people or the means of their repression. It is made by humans and so is never completely neutral. It has moral content and values, not only in its substance but in its linguistic framing, form, process, and priorities.Shami Chakrabarti, “Foreword,” Leading Works in Law and Social Justice
Now, a little over a year later, I find that Martha Fineman has done much of my work for me.
- “In the Critique of Judgement, Kant writes: ‘The moral argument is not meant to provide any objective argument for the existence of God nor meant to prove to the doubter that there is a God; rather it is meant to prove that if his moral thinking is to be consistent, he must include the assumption of this proposition among the maxims of his practical reason.” As quoted in “Kierkegaard and Vulnerability” by
- Martha A. Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism (2008). Available at: https://digitalcommons.law.yale.edu/yjlf/vol20/iss1/2
- Waiton, Stuart. “The Vulnerable Subject.” Societies 9.3 (2019): 66. Crossref. Web. <http://dx.doi.org/10.3390/soc9030066>.
- Vulnerability and the Human Condition (Emory University)
- Leading Works in Law and Social Justice. United Kingdom, Taylor & Francis, 2021.
- Fineman, Martha Albertson
- Gordon-Bouvier, Ellen. Relational Vulnerability: Theory, Law and the Private Family
- Gordon-Bouvier, Ellen (2019). Relational Vulnerability: The Legal Status of Cohabiting Carers. Feminist Legal Studies 27 (2):163-187.
- Livingstone, Sonia. (2012). Critical Reflections on the Benefits of ICT in Education. Oxford Review of Education. 38. 9-24. 10.1080/03054985.2011.577938.
- William P. Quigley, Letter to a Law Student Interested in Social Justice, 1 DePaul J. for Soc. Just. 7 (2007). Available at: https://via.library.depaul.edu/jsj/vol1/iss1/4