By Matthew B. Lawrence
If we want to understand how changes to the law might affect health outcomes, we must remain mindful that the law not only regulates how we behave in the world as it is, but also shapes the institutions and structures that make the world the way it is.
The dominant theoretical frameworks of classical liberalism and behavioral economics obscure this critical relationship.
In this blog post, I suggest that health justice and vulnerability theory fill this theoretical gap, and serve as invaluable, and largely complementary, frameworks for understanding health law and policy.
Health justice and vulnerability theory are particularly valuable for understanding two interactions between law and health. First, both center the many causal points at which law may impact health.
Vulnerability theory sees a “web of economic, social, cultural, and institutional relationships” that “profoundly affect our individual destinies and fortunes,” as Professor Martha Fineman puts it.
Similarly, a core starting point of health justice is the recognition that individuals’ and communities’ health are a function not just of the professional care they receive, but of myriad upstream, social determinants of health — determinants which are, in turn, shaped by law.
Thus, both vulnerability theory and health justice conceive of the relationship between law and behavior as holistic and constructive, by which I mean they reject the linear, transactional notion of a natural, law-free societal order in which law intervenes by commanding or prohibiting discrete behaviors.
Second, and relatedly, both vulnerability theory and health justice focus on the prevention of harms (including illness) by changing their upstream determinants. This is a core commitment of health justice, that “upstream community and primary prevention strategies” often “have greater population-level impact” by acting on and shaping the social determinants of health, as Professor Lindsay Wiley puts it.
The related notion of “resilience” is a core emphasis of vulnerability theory, which notes that our ability to cope with the financial, medical, and other challenges that are an inevitable aspect of the human condition depends in large part on the state-influenced institutions, relationships, and arrangements that shape us and our lives.
I have found these descriptive insights invaluable. For example, in “Against the Safety Net,” I used them to problematize the “safety net” metaphor for health and welfare programs. The metaphor suggests that health and welfare laws’ role is exclusively “rescuing” those who “fall,” obscuring the role of law in influencing who “falls” and whether they need rescue when they do.
There are, of course, important differences between vulnerability theory and health justice, but I have found these differences to be largely complementary.
One major substantive difference is that health justice centers inequity, whereas vulnerability theory sees inequity as important but collateral to the core project of building a responsive state that fulfills its obligation to support society, including its propagation.
A benefit of the vulnerability theory approach is that it centers the work that goes into caring for ourselves and one another (and our elders and children) and offers an affirmative normative commitment — that the state should support this work (directly and through the development of supportive institutions). Inequity in the distribution of care work burdens still matters, but the state cannot escape its obligations, for example, by “leveling down” so that all parents, regardless of race, gender, disability, or class, are equally unsupported in caring for their children (or all children equally unsupported in caring for their parents — a theme Professor Allison Hoffman developed in the article that first introduced me to Professor Fineman’s work, Reimagining the Risk of Long Term Care).
Health justice can carry such commitments (in recent work I and co-authors have referred to the state’s obligation to offer not just equal but “robust” public investment, for example), but that aspect is not as central.
A second difference between vulnerability theory and health justice makes the two very complementary: their audiences. Vulnerability theory reaches across disciplines and countries; at a vulnerability workshop one might encounter scholars from the U.S., U.K., Netherlands, and South Africa who study tax law, procurement law, environmental law, and health law. This offers tremendous opportunities for cross-pollination and horizon broadening, a way to connect and engage with scholars thinking about similar issues in very different contexts. Health justice, meanwhile, has rich engagement not only in the academic field of U.S. health law, but also in the health policy and advocacy communities — indeed, that is one of its central commitments. The close connection of health justice to the “real world” brings rich examples, understandings, insights, and opportunities for impact.
Because of their similarities and especially their differences, further cross-pollination between vulnerability theory and health justice would be valuable. For readers curious to learn more about health justice, the other entries in this blog symposium are a great place to start. As for vulnerability theory, interested readers might start with the Vulnerability and the Human Condition’s blog or the Voices in Vulnerability podcast. And especially because I am developing a longer work on vulnerability theory and health justice, I welcome thoughts or reactions!