 Selene Dion. Beautiful, talented, successful, and yet still human and fragile. Porcelain. A global pandemic, extra-judicial murder by police officers, hurricanes, explosions, wildfires that emit enough noxious smoke to blot out the sun. The past year has provided a remarkable smorgasbord of reminders of just how badly things can go wrong and how much risk each of us faces on the daily basis. We don't really like to talk about that constant peril. Facing your own mortality is rarely a recipe for a good time, but it can sometimes be an important bit of context for how we think about certain topics. This is the starting point from which legal philosopher Martha Feynman develops a model that she calls vulnerability theory, a fresh way of thinking about risk, disaster, and the role of law in people's lives. In the context of the theory, the term vulnerability isn't a special, temporary fragility that certain people have in certain contexts. It's a universal, immutable future of what it means to be human. A constant condition that we all experience our entire lives because we're all delicate creatures of flesh and blood. You, me, everyone shares a common set of permanent vulnerabilities that can be threatened or compromised by various hazards, many of which are totally beyond our ability to predict or control. A drunk driver, a freak storm, a careless neighbor. As a human being, for as long as you live, you're never going to be more than a heartbeat away from a drastic upheaval in your life. According to the theory, the differences we see in outcomes aren't due to differing potential for harm. We all have exactly the same physical capacity for injury, disability, and death. Rather, we see different outcomes because we all have different resources available to recover from the impact of a hazard. Resources that might be physical, social, ecological, all sorts of things. Take COVID infection. No human is 100% safe from COVID, but a given human might have a robust immune system that can fight off the disease, education about how to recover quickly, a family member willing to look after them while they're sick, proximity to a hospital in case anything goes seriously wrong, or even something as simple as a good book to read while they're languishing in bed. All these resources can grant resilience, the ability to bounce back from something harmful, like a COVID infection. Everyone is vulnerable, but folks who can call on various forms of support can recover quicker and easier. Interestingly, there's an implied complexity to this idea of vulnerability and resources for resilience that isn't captured by things like simple risk analysis. As we saw in episode 208, one small failure often impacts multiple systems at the same time, including systems of recovery, causing cascades of disaster. The record cold snap Texas recently suffered didn't just make it impossible to survive without a ready source of heat. It also shut down the electrical grid, which caused pipes to freeze and burst in some buildings, making them uninhabitable. The Texan might have found themselves suddenly powerless, homeless, and freezing to death, all because of the same hazard. We can see that chain of cause and effect easily in retrospect, but a naive analysis of how likely a blizzard would be to hurt people might well miss those second-order effects of lost resilience. For all we know, the real death tally isn't over. Speaking of Texas, for Feynman, the ultimate goal of regal institutions is to address the vulnerability of their constituents, to use their power and resources to shore up people and organizations so they can recover quickly from peril. This puts the role and maintenance of government on the same outcomes-oriented continuum as its citizens. Just as with people, legal institutions have some inherent, indelible potential for suffering permanent injury, regardless of the specifics of their situation. Loss of faith, disruption, capture, and dissolution threaten these institutions and their ability to provide resilience to their citizens. In this sense, the primary measure of a government's health isn't necessarily its ability to prevent disaster, although that's certainly appreciated, it's the ability to enable each citizen with the tools and resources they need to recover from that disaster. If it can't, it's a cry for help. Interestingly, this framing also flips our normal conception of how law is supposed to work on its head. Our current system assumes a static legal subject who is independent and autonomous. If you're a person, you're walking around, calling shots, making deals. If someone is, for whatever reason, not able to call shots or make deals due to circumstances beyond their control, we try to identify whatever is special or deviant about them. What category or identity might explain why they can't be the shot calling deal-making walkie and they were born to be, then try to build some legal framework around them to apply an equal and opposite force to restore them to this theoretical independent autonomous standard. Feynman asserts that this approach has been historically insufficient from the perspective of vulnerability, as numerous institutions continue to produce and exacerbate the advantages of certain groups over others, generating new and creative ways to circumvent explicit legal restrictions on discrimination, while supplying even more protections to individuals who are already in an exceptionally resilient position while others suffer harm. She also notes that the vulnerable group approach is constantly embarrassed by its over-generalization of group members, as though Donald Trump and Joe Biden are in desperate need of the same special legal protections against age discrimination as any other random person over the age of 65. Under vulnerability theory, the goal of law is to maximize the resilience of a population against hazards. It can't do that unless it acknowledges their existing resources, where they're weak against trauma and where they aren't. By focusing on addressing vulnerability and resilience directly, not only do we get away from the awkward over-generalizations of protected groups, we can address people's needs as they change over the course of their lives without trying to constantly normalize them against some locky and ideal of independence. My independence has fluctuated wildly over the course of my life, and will continue to change drastically as I get older. My vulnerability on the other hand, my physical instantiation as a human being who needs certain things to keep living, that hasn't gone anywhere. Everyone needs help to bounce back from threats to their fragile existence. Some of us need more help than others. Maybe our institutions should focus more on that aspect of what it means to be human. But what do you think? Does Feynman's notion of universal human vulnerability seem like a good framework for thinking about things like law and society? Can you think of an interesting application of vulnerability theory? Please, leave a comment below and let me know what you think. Thank you very much for watching. Don't forget to blow up a subscribe last year, and don't stop thunking.