As part of the legal test for bias, the courts have created a fictional fair-minded observer (the FMO) to act as a conduit for reasonable public perception. A number of scholars have raised concerns that the FMO bears no resemblance to an average member of the public or reasonably reflects general public opinion. This chapter presents our original empirical pilot study on expert versus lay attitudes to judicial bias. The study compares responses of legal insiders (lawyers and judges) and nonlegal experts with a basic understanding of the law (law students) to leading cases on judicial recusal. We use vignettes based on real cases from England, Australia, and Canada that dealt with different claims of judicial bias (covering issues of race, prejudgment, and more). The study may allow us to draw conclusions about the similarities and differences between legal experts and laypeople in relation to the perception of judicial bias, and we suggest ways the full study can address methodological limitations in the pilot that would allow us to draw those conclusions with greater confidence.

Legal outcomes often depend on whether conduct is reasonable. But how do we judge what is reasonable? What are the relevant criteria? Legal theorists have long debated these questions. This chapter outlines some of the leading theories. It then describes recent experimental work probing whether those theories align with lay judgments of what is reasonable. The findings indicate that reasonableness is best understood as a hybrid concept – a product of multiple inputs. Working from this perspective, the chapter raises important additional questions about reasonableness – questions that experimental jurisprudence is well suited to explore.

This research paper aims to experimentally analyze how iusnaturalist and iuspositivist legal theories influence legal operators’ decisions when there are conflicts between law and morality, as well as to show that they interact and are codependently defined by other cognitive variables as a complex system.

Introduction to Lecture 1

This chapter explores the concept of the ontological body in order to highlight the universality of vulnerability and its implications for law and policy. It presents the foundational premise of Vulnerability Theory: as embodied beings, we are all inherently and inescapably embedded in social institutions and relationships throughout our lives. Embodied vulnerability, as well as the dependency on social institutions and relationships that it inevitably generates, presents an unambiguous challenge to (neo)liberal understandings of the nature and place of the individual. In doing so, it also demonstrates the necessity of social institutions, including those of governance.

Currently, our political theory seems precariously grounded on individualized and unrealistic notions of liberty and autonomy, reliant on a political subject fully capable of marshalling resources and able to act independently and rationally in most situations. As such, these neoliberal narratives render incomprehensible the argument that the democratic state has a primary role in defining and addressing the structural conditions necessary to achieve a communal sense of social justice. In contrast, Vulnerability Theory emphasizes the fundamental role of societal institutions in addressing dependency. Instead of working through law and policy to balance the collective, often competing interests of individuals in various situations or circumstances, the guiding premise of neoliberalism is that the state is to be restrained from interfering with economic and other social arrangements in order to protect the individual's right to liberty and choice as to what is in their best interest. This preference for individual liberty and autonomy positions the individual as separate from the social or collective. It also suggests that individual wellbeing is primarily an individual responsibility.

Introduction to Lecture 4

Equality as an overarching aspiration (like liberty and autonomy) is grounded on a particular uncontextualized vision of the individual and an impoverished sense of the human condition that distorts our aspiration for justice and our expectations for collective responsibility.

Beginning with the body, Vulnerability Theory brings the temporal dimension of the life course into consideration, altering and complicating any discussion of what is the appropriate nature and extent of state responsibility for the wellbeing of the individual. A life-course perspective provides important insights into the totality of the human condition, and forces us to confront the illusion of equality as an organizing aspiration for a truly just society. It also urges us to consider how changes in the body over time should affect the ways in which we define our social institutions and relationships.

This discussion of inevitable inequality is fundamentally a discussion about the function and nature of social institutions and relationships and the role they play in shaping the individual. This discussion is not focused on the demographic differences or variations among individuals that are the focus of traditional anti-discrimination models of justice, but on the developmental changes that occur within every body. These inherent differences, which are biological and developmental, emerging over time, are largely ignored in constructing traditional theories about the appropriate relationship between the state and the legal or political subject.

In 2022, I was invited by a group of scholars at Trinity College, Dublin to deliver a series of lectures on the concept of vulnerability as the basis for an enhanced vision of state or collective responsibility. I organized the lectures around several principles that highlighted how the insights of what is called ‘Vulnerability Theory’ reveal and challenge the foundational assumptions underlying mainstream legal and political approaches to justice. My fundamental belief, and the underlying premise of Vulnerability Theory, is that to be appropriately labelled just, a theory must be attentive to the material circumstances of the human condition, emphasizing the interconnectedness and dependence of individuals within society, as well as the complexities of contemporary life.

In viewing such circumstances and complexities as primary considerations, Vulnerability Theory could be deemed an application of Robert Merton's ‘theory of the middle range’, which posits that the most significant (and confounding) questions often arise in the tension generated in the spaces between the empirical realities of life and the grand theories or metanarratives of political and public aspirations. These tensions present a challenging and compelling occasion for theoretical, as well as practical, adjustments and revisions.

Vulnerability Theory begins by considering the corporeal body as its foundational empirical concept, focusing on the implications of the fragility and dependency of the body while critically assessing the abstract constructs that dominate our political world, such as equality and liberty, which constrain and limit our vision for change and transformation. By emphasizing the corporeal body, Vulnerability Theory foregrounds the physical and social realities of human existence, advocating for a shift in critical attention (at least initially) from abstract ideals to concrete human experiences.

The Law, Society, Policy series publishes high-quality, socio-legal research monographs and edited collections with the potential for policy impact. Cutting across the traditional divides of legal scholarship, Law, Society, Policy offers an interdisciplinary, policy-engaged approach to socio-legal research that explores law in its social and political contexts with a particular focus on the place of law in everyday life.

The series seeks to take an explicitly society-first view of socio-legal studies, with a focus on the ways that law shapes social life, and the constitutive nature of law and society. International in scope, engaging with domestic, international and global legal and regulatory frameworks, texts in the Law, Society, Policy series engage with the full range of socio-legal topics and themes.

Introduction to Chapter 6

As the preceding chapters have emphasized, the most significant theoretical focus of Vulnerability Theory is the concept of universal embodiment. It is an embodied (and therefore vulnerable) individual who encounters the myriad and inevitably shifting circumstances and situations of life. Rather than a distinct disadvantage or weakness attributed only to some individuals or present in distinct circumstances, vulnerability should be understood as a continuum of variations that together constitute the human condition.

In addition, the theory makes clear that the inherent dependency and limitations of the body necessitate reliance on functioning social institutions and relationships, which can foster individual resilience. Resilience is composed of social resources and relationships, which are the product of institutional policies and programmes when they are responsive and adaptive to the lived realities of the vulnerable subject.

As also emphasized in the lectures, far from being individual, variable, and particular traits or characteristics, both vulnerability (signifying our embodiment) and resilience (signifying our embeddedness) are the universal manifestations of the collective human condition. Combined, these insights form the foundation for Vulnerability Theory.

By institutionalizing the individual, we challenge the dominant legal and political narratives that prioritize individual autonomy and liberty over collective wellbeing. This approach brings the collective dimensions of justice into focus and mandates a broader and more inclusive conception of state responsibility, one that moves beyond merely safeguarding individual rights to actively shaping the social conditions necessary for resilience and wellbeing.

Introduction to Lecture 2

This lecture considers the difficulty of conceiving a truly collective approach to individual and societal wellbeing in the context of currently dominant ways of thinking about social justice. Certainly, a great deal of resistance is formed in the shadow of the individualistic non-interventionist rhetoric that dominates contemporary political discourse on the conservative level. However, the difficulty in accepting a truly all-encompassing notion of justice – one that has more universal roots – is also found in a liberal rights-based, anti-discrimination sense of social justice. This approach focuses on the compelling need to respond to the legacies of historic injustices that affirmatively targeted generally ignored, or inequitably impacted, specific groups within society, and is decidedly different than that presented by the non-interventionists.

The dominant frame for progressive critics of governmental policies, rights-based anti-discrimination approaches echo an undeniable reality. The challenge, therefore, for those seeking a broader, more generally inclusive, notion of social justice, is to imagine an overall theoretical approach that can encompass and advance remedies for past failures and faults evidenced by discriminatory policies and practices while also serving as a foundational, universally applicable, and coherent theory arguing for the just treatment of all in society going forward.

This ambition to create an expansive notion of social justice seems particularly crucial. Today we inhabit a world of dynamic complexity, insecurity, and uncertainty unimaginable to the political actors who shaped foundational governing documents, such as the US Constitution during the eighteenth century.

Introduction to Chapter 1

This chapter traces the feminist origins of Vulnerability Theory, considering how some early feminist legal critiques by focusing on the social institution of the family also laid the groundwork for a more comprehensive understanding of equality and social justice. The family is a fundamental social institution, which performs a range of socially essential tasks. Those tasks historically have been allocated based on the construction of gender differences. This chapter suggests that, in bringing the gendered family within a gender-equality (or neutrality) paradigm, reformers erred in focusing too much on gender discrimination or disadvantage and not enough on the need to reallocate the necessary dependency work that must be done to replicate society across a wider range of social institutions.

By framing the issue primarily as one of individual rights and gender equality, reformers left unexamined the structural inequities that persisted in the allocation of caregiving duties. The failure to challenge the underlying assumption that the family is the primary and ‘natural’ institution responsible for managing dependency left intact a system that continues to rely heavily on unpaid or underpaid caregiving labour.

This chapter contends that the feminist legal reformers’ pursuit of gender equality, while a necessary step in the quest for social justice, was incomplete. Vulnerability Theory advances the social justice project by offering a more comprehensive framework that recognizes the universality of human dependency and calls for a redistribution of the burdens of care across all of society.