I first met Martha Albertson Fineman back rather a long time ago when I was a student at Columbia Law School and she was teaching Family Law there. I thought it was an amazing educational experience (and I don’t just say that because she gave me an A). I have never practiced family law and I have no plans to, but it is not an exaggeration to say that what I learned from Professor Fineman has, to this day, informed my legal work, my thinking, and my writing. I thought of her during last year’s US presidential race with the alarmism over Hillary Clinton’s pneumonia diagnosis. I thought of her recently when I introduced a friend to Marilyn Waring’s work on economic systems and how they devalue the work of women. I thought of her just a few weeks ago when a friend on Facebook was posting about state laws and underage marriage (believe it or not, it is permissible most places with parental consent) and how I had learned about that in Family Law as an example of how the marital rape exemption is still not entirely purged from our laws and our culture.
She’s now teaching at Emory and is internationally recognized for her jurisprudence, and in fact, was recently selected to receive the 2017 Ruth Bader Ginsburg Lifetime Achievement award. Despite her busy schedule, she found some time to talk with me on the phone and answer some questions. Here’s what she had to say:
Name: Martha Albertson Fineman (above)
Date: March 27, 2017
Occupation: Robert W. Woodruff Professor of Law, Emory University
Hometown: Philadelphia, PA
Current town: Atlanta, GA
Good to talk to you today! Thank you for taking the time to discuss your work, which I really do appreciate. For someone who is unfamiliar with your jurisprudence, can you give a brief into or summary as to what it is that you are focusing on, the academic version of the “elevator pitch”?
I am working in the area of social justice; how we, as individuals, make a claim on the state for resources, and how a state must be responsive to human needs. Arguing about discrimination has been the major way we have addressed inequality throughout the twentieth century, beginning with the civil rights movements of the 1960s. The human rights movement has recently taken the fight for equality beyond the idea of discrimination, with economic and social rights in addition to political rights, being the focus. My work on human vulnerability moves beyond identity politics and notions of individual responsibility to consider the whole nature and extent of state responsibility more broadly.
I’ve read some of your recent articles…one of them, “The Vulnerable Subject and the Responsive State,” I thought made some very interesting and overlooked points…about how the law protects property much better than it protects vulnerable human beings and human bodies. It’s something that came up when I spoke recently with Carrie Goldman who specializes in internet privacy and non-consensual pornography cases. The criminal law treats financial crimes much more harshly than it treats violence…can you speak a bit to that?
It’s true that some financial crimes are treated more harshly than some violent crimes, but not all crimes are the same — white color criminals aren’t treated as harshly as the run-of-the-mill thief. In other words, it’s who is committing the crime that is more telling of harshness. What the vulnerability approach demands is not just a comparison within categories, but a total rethinking of law, the whole approach to criminal law, tort law, contract law. These areas of law all rely on the concept of an independent, autonomous, rational male subject – laws are built along that notion of the rational human being who is at liberty to make choices and have freedoms—this vision of what it means to be human is at the center of how we organize society. But that’s nonsense. None of us are that autonomous, independent being. Also, law currently looks at some imagined being at a specific point in time, like the point of injury, not at how a presumed to be “functioning” adult person is actually formed or presently situated, how the capabilities of human beings are developed across their life course and in specific contexts. Vulnerability theory recognizes our universal, shared dependence on other human beings and also on social institutions and relationships. We are always dependent on social arrangements and institutions from infancy to old age. The question for politicians making the laws that govern the operation of institutions and the nature of legal relationships should be: “are the institutions and social relationships they design responsive to human vulnerability, are they fair, or do they unduly privilege some?” The question is not “does this arrangement discriminate?”, but, rather, “how is the relationship structured?” Instead of focusing on women versus men, we look at the nature of the legal relationship and the conferral of power established in the categories of husband and wife, or parent and child. What is the social function of the relationship? Parents are given an inordinate amount of control over children (there is no other relationship besides slavery which gives more) and we should consider when and under what circumstances is that fair? How can that kind of power be justified and what is the state’s responsibility to monitor that relationship? Those would be the questions asked in a vulnerability analysis.
How I got to the concept of vulnerability was by considering the inevitability of human dependency and its impact on gender equality. It took me years to get to the point where I asked questions beyond discrimination. The realization came while addressing how the state should take into account and structure caretaking. I realized that this is not a gender problem, even though women do a disproportional amount of caretaking work. The fundamental problem is that our society doesn’t value caretaking. Social institutions — the workplace, and the state in the way it regards the delivery of social goods — make it difficult to be a caretaker and participate in the political and economic arenas of life. So it’s not about gender and discrimination, but the fundamental lack of social value that we assign to the caretaking role and the way it is not considered when we structure our social institutions and relationships (other than the family).
That makes sense, but I think it is likely hard to untangle gender from that.
It shouldn’t be. If it is, it has significant implications for reform. If the problem is discrimination, the solution is not to discriminate – make men be caretakers, for example. That doesn’t remedy the structure, it only redistributes the disadvantage.
One would hope.
So we have to ask, what is the remedy we want? How we define the problem also suggests the remedy.
I support the Black Lives Matter movement, but I also realize that the problem is not limited to racial discrimination. Discrimination highlights the ways in which the police force has been militarized – the structural problems transcend the problem of race discrimination.
I think it’s hard for us to transcend the problem of racial discrimination when we’re drenched in racism and it’s such a part of our history and institutions.
Until we can do that, we’re going to continue to focus on the only part of the existing structural problems. The fundamental problem is the organization of the social institutions.
If you look at social arrangements in other societies– I do work internationally–you can see that other societies are organized in different ways. One large area that affects almost everything else is that of corporate responsibility. In Germany, the corporation is structured differently and control is shared among all stakeholders. As a result, employees and the restrictions placed on employers are different. I’d like progressive scholars in the US to look at those types of structural problems, not just as problems of discrimination. Why should the employer have the kind of power over the employee that we confer in law, without the employee having much protection beyond a finding of discrimination?
You also write about human dependency…it made me think about disability and disability activism. Is this something you’ve focused on in your work?
I consider disability the same way I consider race and gender – as warranting anti-discrimination remedies when discrimination occurs, but also requiring an inquiry beyond that to the underlying structural arrangements that might and often do affect everyone. I was recently invited to a summit on children in Florida and had an interesting discussion with a pediatrician about his work with autistic children that illustrates this. He referred to autistic children as “disadvantaged” and “deviant.” The problem he saw was discrimination. He had a norm in mind, and the children labeled autistic didn’t conform, and needed special treatment. I asked him how he felt about the way we treat gifted children. Are they also “deviant?” “disadvantaged?” and in need of “special treatment?” Actually, the system does consider them potentially disadvantaged, but by the structure of the educational institution, not their own characteristics. In response, we have created special treatment to meet their needs — gifted or accelerated programs. We do not consider this variation “deviant” and therefore stigmatized because it is different from the normal. It would be much better for arranging educational responsibility and policy if we think of those with what we think of as superior intellect and those labelled autistic as merely variations of what it means to be human. Both would be seen as on a spectrum of human variation that must be considered when we build our institutions so as to include everyone.
When you write about “derivative dependency” as the financial dependency of someone doing private work, taking care of kids, elderly relatives, disabled family members, and how that is experienced through the family, I couldn’t help but think of it as a very big class issue as well. We tell wealthy women that they shouldn’t work, and that they’re being selfish for not being home with their kids, and we tell poor women who are taking care of their kids that they should get a job. (Well, I don’t tell anyone what they should do, but that’s kind of the societal attitude that I see…)
Let me first say that it is not only financial dependency. It is also the failure of the institutions to accommodate the needs of the caretaker. The way you characterized the problem as one of class… it distorts our perception of what the extent and nature of the problem really is. You’re thinking of it in terms of discrimination. But the problems are more fundamental. Society is structured in such a way that we assume that dependence is exceptional. The big realization for me in working through the nature of dependency and social arrangements over the past thirty years was that it’s not just associated with the caretaking of children; but in fact, our dependency on others and on institutions and social arrangements exists throughout our lifetime. We rely on things that are provided by our larger society through law and legal arrangements in order to survive and thrive. On the most mundane level, we’re all dependent on the court system and the police, for order, but we also rely on society, its institutions, and relationships for survival. They provide access to the skills and resources that we need to live and grow. Law determines the nature of those essential social relationships: employees and employers are governed by laws that structure how they relate to each other, as well as to consumers, and to other outsiders. The notion of autonomy and independence from society and social/legal relationships and structures is the problem. We need instead to think about social dependence as the norm, and then consider our responsibility for structuring and monitoring these ongoing social arrangements.
I also read your article “Elderly as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility” and I noticed your line about how politicians “blithely draw lines between generations in discussing national debt and Social Security and Medicare.” I generally find discussions of generation models to be very annoying and over simplistic. My thought is that for some things, focusing on age makes sense: cultural references, national experiences, technology. But for most other things, class, geography, religion, race, ethnicity matter so much more than what cohort you’re born into. So it seems very divisive and strange to me how there’s so much focus on the baby boomers vs. Gen X (that would be me) vs. millennials. I don’t find that people fit that well in these boxes we draw for them.
Many things seem to be framed in terms of generational conflict but in real life, I just don’t see that.
I think the concept of generational conflict is a political creation… the categories are manipulated for political ends. One of the dangers is that these categories are both under- and over-inclusive. The same sort of exclusivity problems exist with race and gender and most other categories. You’re stereotyping problems as the characteristic of people that fall within them — people who are seen as having a certain set of problems. But the category may also exclude people with the same disadvantages and include people who are privileged within the categories – the problem may transcend the category and reach the whole of society, even if within that whole, some are privileged and others disadvantages by the structure.
Political use of generational conflict — you see it all the time. The National Debt is presented as a generational argument. “Why are we saddling our children with the debts to pay for Social Security?” That type of logic is used to get to a certain political end. You have to be able to disassemble those categories and think about them critically. The problem is not only that we’re passing debt on to our grandchildren, but it is also about what that debt signifies — that we don’t have a system that allows many individuals to take care of themselves throughout their lives, be they young or old. We are dismantling the idea of the public provision of social goods. The Republican Party is currently moving against the provision of public education to that of private choice (and provision). When you begin to look at this kind of movement — you consider what society deems worthy of public investment; what do we as a society value, what is given resources and public subsidy? Right now, we’re investing in building the market and corporations, the construction of sports stadiums, and other diversions. And then we are arguing about taxes for public schools.
The divisive generational rhetoric reminds me of the “mommy wars” supposedly between stay at home mothers and working out of the house mothers…which seems to me to be almost entirely a media creation. Maybe I only know reasonable people, but I don’t see most people I know criticizing other people’s decision-making in this regard.
Take a step back, however…why do we attempt to privatize dependency? It really isn’t privatized of course. The public response is merely reconfigured (often in ways that are more expensive). If you remove healthcare, are we going to allow people to be dying unattended in the streets? No, we provide for access to emergency rooms, which are far more expensive. America will have long-term increased costs without preventative medicine – a comparison with the elderly and ill in Canada proves that point. It is exhausting.
Another class issue came up for me when I was reading this. If we tinker with Social Security and Medicare and give benefits later due to longer life spans…that is much less of a problem for someone like me, an attorney and writer, than for someone who does a physically demanding job. And it’s not an issue I’ve seen given much attention.
Lawyers aren’t immune from dependency and need—our vulnerability as embodied human beings is as true for lawyers as it is for others. We don’t want to divide society into “us” and “them.”
When you write about the vulnerable subject and multiple identities, it occurs to me that if we could make up a new anti-discrimination law from scratch I might do away entirely with protected classes (gender, race, color, creed, religion, national origin, sexual orientation…it goes on in NYC to many more, including victims of domestic violence and transgendered people, and so forth) and instead create some kind of universal right to be treated with dignity. I was trying to explain at will employment to a friend of mine recently, and how he could be fired because his boss was in a bad mood, or he didn’t like his face, for any reason or no reason at all, except an affirmatively illegal reason…his boss could fire the whole department, but couldn’t decide to keep only the men and not the women. Trying to explain this to an intelligent person who wasn’t familiar with the law was really interesting—because it makes you realize how very strange and really quite absurd the system really is.
That is not a problem of discrimination as we have traditionally thought of it in law. For that kind of disparity in power, which is enshrined in law, we really need some countervailing structures – like unions… a form of collective power for employees that matches the power of employers. That is also governed by law. And we discourage and disadvantage unions through our laws! This is in contrast to the construction of the corporation to facilitate its operation and success. The corporate form created under American law, particularly the law of Delaware which sets a race to the bottom for the least regulation, empowers capital over labor.
This is a problem beyond discrimination. If we mandated inclusion of all those falling within existing anti-discrimination categories… it would not change the power imbalance between employer and employee – it would only make it applicable to more or different individuals. Instead of doing institutional reform only through these categories, why not go beyond identity and look to the fundamental relationship: how can society tolerate a situation where one person in an employment relationship (the employer) can unilaterally exercise control over the terms and conditions of employment to the point where they can take the means of livelihood from the other arbitrarily and without having to justify doing so… why does one person have all the power in this legally structured relationship and the other has none?
It is unfortunate that a legal education often results in people accepting things that are to lay persons (like your friend) absurd. That’s funny in some ways. And true. And depressing.
So a long time ago now, I read one of your books, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies, and was really impressed by the main idea– that the sexual bond is too fragile in our society to nurture dependence, and that’s it’s the mother and child (or caretaker and dependent bond) that needs and deserves all the protections of law. It’s just such a very original thought…have you taken this further, has anyone picked up on it? How do we get from the theoretical to the real?
That book is from 1995, and still the students are shocked by the thought of this kind of shift in social policy! Twenty some years later, it still seems original or shocking. I guess I just think about things differently.
You do have a very creative approach to things. So, do you see some change?
Things have changed. This is why I am optimistic. Ann Snitow, a sociologist, told me many years ago, when I was at Columbia and feeling depressed about the progress of social reform, that we are in the middle of a revolution that began with the Enlightenment. This perspective is important — we likely won’t see the end of the change we want in our lifetime. This long-range view takes the pressure off. We don’t have to change everything right away.
When I started the Feminism and Legal Theory Project in 1984, the assumptions underlying family law were very different than they are now. Marriage as a legal institution has changed over the last couple of decades. It used to be arranged hierarchically. It’s now (at least legally) an egalitarian institution. The notion of “marital property” is new: property is no longer thought of as belonging to he who earned the money to buy it, but as belonging to, or a product of, the marriage itself, as not only an individual effort. New ideas take a long time to get incorporated into law. I can see other changes: sexual harassment was “invented,” it didn’t exist until the theoretical basis was acknowledged in the 1970s. Change isn’t immediate. It takes a lot of work by a lot of people, and a lot of thinking through what arrangements need to be addressed and changed.
If you look at neo-liberalism, an ideology that posits for the good of individuals, society should be organized around the needs of the market (which is now the primary concern of our law and property rules): that was an idea that began with the work of Milton Friedman and Hayek during the 1950s. It gained adherents, and eventually Ronald Reagan began to implement it through policy, and some politicians today are committed to perfecting it, and removing what they see as impediments to the operation of the so-called, “free market.” But that market takes a lot of propping up, depends on a lot of social arrangements and institutions to function–it’s hardly free or independent. It’s a social and legal construction, not a natural entity.
I know I’ve had arguments with people trying to convince them that the law protects the wealthy more than the poor, in that it protects their property.
That type of invisible protection is relevant in the debate about healthcare. The way we organize healthcare provides a huge subsidy to middle and upper wage earners — when they get health insurance through their employers, the employers can write the cost off as a business expense and the employees don’t have to count it as salary. Those subsidized in this way receive far more in terms of value than the poor person getting care under the Affordable Care Act or Medicaid. The advantage that politicians opposing assistance for the poor have is that the way that the facts they use to frame their arguments are accepted as normal and natural observations based on obvious and inevitable realities. The burden is on someone who wants to change the rules to show the structural realities of the current arrangement and suggest alternative arrangements that can be viewed as both practical and more equitable. The privileged treatment of those who are not disadvantaged has to be revealed, not only the disadvantage of the poor. The Submerged State: How Invisible Government Policies Undermine American Democracy is a book which shows how government benefits the upper middle class and the upper class. People typically take existing social and legal arrangements for granted and don’t necessarily see the distortions they produce. That’s one reason change takes a long time. Education is difficult — most people don’t investigate–who is going to take the time to read these articles we write? Who even reads a newspaper now-a-days? People don’t take the time to do that anymore.
Me too — I read several a day.
I know quite a few people who, in light of the recent election and the concern about fake news have subscribed to the New York Times and the Washington Post recently to support journalism.
I bought some subscriptions for Christmas gifts.
So something that’s occurred to me when I have read your work and now speaking with you, how is it that you have such a creative take on so many legal issues? You really do think differently than many people.
I have no idea! I have a very different background than most law professors, which really contributes to how I see things. And I have never been very good at accepting things the way they are. When things seem unfair to me, I want to do something about it, and that’s a huge motivation – so is anger at the status quo. When I see something I think is unfair, I try to analyze and explain what’s going on to myself and why it’s wrong — this helps me develop a critical perspective.
How is your background unusual?
I come from a working-class background. I was married right out of high school, had my first child at 18. I didn’t go to college until I was in my twenties, after having two children and going through a divorce. I was the first person in my family to graduate from high school. So I bring a different perspective to how society works–college education, and graduate education, was not the natural path for me.
Do you have any thoughts you’d like to share on the recent election? Are you optimistic or pessimistic about the future of our country?
I was so depressed after the election. I could barely function. This man could undo in the space of four years what I and others have been working so hard for over the past 40. It was a shock to see how many people could actually have voted for him. I was truly surprised. I am encouraged by the amount of resistance that has been generated. All the marches. It gives me some hope. My generation organized against the Vietnam War, we protested, we marched for civil rights and the women’s movement. Maybe it’s happening again, and people are motivated by this electoral disaster. Organizing for change takes some personal sacrifice and some perspective on how change occurs and how long it takes — how difficult, but worthwhile, the struggle is. And also – we must be aware of how fragile change is once it’s accomplished. That’s another lesson of the Trump era. You think you’ve made progress in areas like reproductive justice or environmental policy, and the Electoral College goes and makes it likely that it will all be overturned.
What changes would you like to see in family law? What would you like to see happen?
I have long argued against the way we construct marriage as a legal category – all the advantages that are attached to that relationship, rather than to supporting children and their caretakers. I’d like to see the subsidies now given to marriage redirected toward caretaking – recognizing the essentially important social obligation to care for and invest in children and those who care for them for the good of all of society – currently and for the future.
Yes, the argument you made, quite persuasively, in The Neutered Mother. Do you see that happening?
A lot of my work has been used to argue for changes in law. Often by other countries. I was just invited to Israel to talk about reforming marriage laws. Other countries have been interested in my work. And marriage has changed – I like to think I contributed some to that evolution in thought. A marriage used to have to be of two people, of different sexes, and now families are recognized with three parents, with technology involved in reproduction. A judge recently ruled that someone’s passport could be genderless – not designate male or female. Some countries acknowledge three sexes or genders. So a lot of old categories and identities are disintegrating.
What social function does marriage now serve and does it do so well? It’s the way we privatize dependency. It’s offered as a solution to poverty. How are we told to take care of children in this society? Parents should get married, and stay married. Or, if they divorce, we get one to pay child support. Focusing too much on marriage as the foundational social arrangement obscures the real problems we face in today’s complex society: that the private family cannot adequately provide for all its members and perform well all the societal tasks it has been delegated. We need rigorous, complementary systems of social support — public schools, subsidized healthcare, and other social supports to help families raise children. An unrealistic reliance on marriage as the panacea for all social problems obscures that need.
I don’t think marriage is going away, though.
Fine, let people celebrate their union – “marriage.” It’s the legal consequences and political implications that matter. How do we define and understand marriage and its role in society through the laws we create to regulate its consequences? What does this mean for those who are not married? For children and other social arrangements?
What should people know about your areas of work that they don’t, or what do people think they know and get wrong?
With vulnerability… I have a list of things it is not – that it does not signify: it’s not dependency; it’s not disadvantage; it’s not discrimination. Vulnerability is an inherent part of the human condition. It’s a universal characteristic – illustrating what it means to be human: as embodied beings, we’re all susceptible to change in both our bodily and our social well-being – both positive and negative change. As a result of our vulnerability, we are all dependent on social relationships and social institutions over the course of our lives. In fact, society is organized around our vulnerability and our need for care. It compels the formation of social arrangements, such as families and communities, as well as necessitating governing structures, such as the nation state. It cannot be eradicated – it is the essence of what it means to be human.
If you could wave your magic wand and improve things, what would you do?
If I had a wand, I’d get people to pay more attention, to educate themselves about what’s going on, both in their communities and around the world.
How did you find your way to the areas of law that you have?
When I first started out I taught Civil Procedure. Family Law wasn’t my subject in the first decade of my teaching career, and I don’t teach it now. I was never really a family law scholar, although I have always been interested in the legal regulation of intimacy; I’m more concerned with the law’s effects on institutions, such as the family. I take more of a legal/sociological perspective, looking at changes in both behavior and the law over time – how altered patterns of behavior are eventually worked into law.
Is there a book you think everyone should read?
If you mean one of mine, the vulnerability book is still underway – there are over a dozen articles, however. The book I would recommend, is The Autonomy Myth: A Theory of Dependency.
How about a work of fiction?
Right now I’m reading The Handmaid’s Tale. Everyone’s talking about its relevance today.
And Lord of the Flies. That’s another newly relevant book — about the perversions arising from individualism, “me first” attitudes, and tribalism.
Another would be It Can’t Happen Here. Because it can…
I kind of feel like I should reread those. But they are awfully grim.
There’s a new Handmaid’s Tale coming out. She’s updating it and coming out with a new introduction I understand…
I don’t know if I have the stomach for it! What’s a movie everyone should watch?
I’m not much of a movie person. I seldom get a chance to go, so it’s hard for me to designate one. Most movies don’t really deal with the kind of issues I do. Things resolve themselves too neatly, happily, predictably in movies—perhaps that’s why we have unrealistic expectations in life.
I guess movies do romanticize things. So do many books. I think that’s why people like mysteries…the problem is solved, the wrongdoer is punished, and the social order is restored. Romance novels work like that, too…the good characters are rewarded with their marriage or their relationships. A lot of it is escapism.
Now is not the time for either escapist or cheerful books.
What is the best advice you’ve been given?
Murray Edelman, who was a political scientist and a bit of a mentor, told me two things when I started my career at the University of Wisconsin. First, if you write a good article, people will find it, it doesn’t matter where it’s published. And, second, don’t become obsessed with one methodology – be it economics or feminism or postmodernism… take different ways of thinking – different perspectives and questions considered and determine what is useful for you in creating your own scholarly perspective.
Also, when I published my first book, The Illusion of Equality, with the University of Chicago Press, John Tryneski, who was my editor there, told me there are only two kinds of books: works in progress and published books. In other words, there is no finished book. You can always do more.
What is the biggest risk you have taken in life?
Moving from being a working class housewife in Philadelphia and doing all the things I had to do to become a law professor. Quite a journey.
What’s something most people don’t know about you?
I suppose it would be that background.
Last but not least, is there anything you would like to pitch, promote, or discuss?
I would like to remind young scholars that original work doesn’t spring out immediately… it develops in increments, over time. I’ve been working on this vulnerability theory for a long time – from focusing on gender equality, to a preoccupation with dependency, to finally articulating what universal human vulnerability means for our understanding of social or state responsibility.
I am delighted to see how the theory has been accepted, even though it challenges some traditional ways of thinking about law, the individual, and state responsibility. There’s now a satellite vulnerability project at Lund University in Sweden, and Leeds University in the UK is starting one also. More and more people are engaging with the theory and writing in the area. This is exciting progress – my first foray into vulnerability theory was written in 2008, and my thought has evolved since then. I’m still figuring things out – and I hope that process of exciting intellectual evolution continues.
Is there a book timeline?
Just last year I had the Neilson Professorship at Smith College, where I did three lectures that will be reworked as the basis for my vulnerability book – or manifesto. I need some time to transform them from lecture into book format.
I will look forward to it. I think a lot of people will. Thank you, Professor Fineman. After all these years, you are still giving me a lot to think about.
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ABOUT LAURA LaVELLE
Laura LaVelle is an attorney and writer who lives in Connecticut, in a not quite 100-year-old house, along with her husband, two daughters, and a cockatiel.
Laura can be contacted at email@example.com
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