Rethinking vulnerability and its implications for justice

Abstract

Vulnerability is a polysemic, dynamic, and contemporary concept, albeit one whose emergence can be traced back to the history of law, and whose theoretical underpinnings are informed by di­verse strands of legal thought. This study looks to the past in order to illuminate the present, draw­ing upon ethical and philosophical reasoning to distinguish between vulnerability as a condition inherent to the human experience, and vulnerable groups as context-specific manifestations of that condition. While this distinction is analytically significant, both elements must be considered jointly in order to articulate, from a human rights perspective, the imperative to alleviate or miti­gate situations of vulnerability. In this regard, vulnerability is proposed not merely as a descriptive term, but as an interpretive criterion —a juridical category— that enables a substantive response to states of vulnerability. This must be done with due regard for the respect of fundamental rights, while avoiding paternalistic interventions, which are themselves a form of structural violence that undermines autonomy. Equally, it calls for restraint in the exercise of justice, rejecting approaches rooted in retributive or disproportionate responses to perceived risks. The role of the State —as legislator, as Judge, and through the institutional exercise of public powers— is indispensable in addressing the complex and multifaceted nature of vulnerability. A comprehensive legal frame­work is required, one that is sensitive to the evolving dimensions of vulnerability and committed to its principled engagement through law and justice.