The Politics of Vulnerable Groups: Implications for Philosophy, Law, and Political Theory (Critical Political Theory and Radical Practice) 3031075463, 9783031075469

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CRITICAL POLITICAL THEORY AND RADICAL PRACTICE

The Politics of Vulnerable Groups Implications for Philosophy, Law, and Political Theory

Fabio Macioce

Critical Political Theory and Radical Practice

Series Editor Stephen Eric Bronner, Department of Political Science, Rutgers University, New Brunswick, NJ, USA

The series introduces new authors, unorthodox themes, critical interpretations of the classics and salient works by older and more established thinkers. A new generation of academics is becoming engaged with immanent critique, interdisciplinary work, actual political problems, and more broadly the link between theory and practice. Each in this series will, after his or her fashion, explore the ways in which political theory can enrich our understanding of the arts and social sciences. Criminal justice, psychology, sociology, theater and a host of other disciplines come into play for a critical political theory. The series also opens new avenues by engaging alternative traditions, animal rights, Islamic politics, mass movements, sovereignty, and the institutional problems of power. Critical Political Theory and Radical Practice thus fills an important niche. Innovatively blending tradition and experimentation, this intellectual enterprise with a political intent hopes to help reinvigorate what is fast becoming a petrified field of study and to perhaps provide a bit of inspiration for future scholars and activists.

Fabio Macioce

The Politics of Vulnerable Groups Implications for Philosophy, Law, and Political Theory

Fabio Macioce Department of Law, Economics, Politics and Modern Languages LUMSA University Rome, Italy

ISSN 2731-6580 ISSN 2731-6599 (electronic) Critical Political Theory and Radical Practice ISBN 978-3-031-07546-9 ISBN 978-3-031-07547-6 (eBook) https://doi.org/10.1007/978-3-031-07547-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: © Ekely/E+/Getty This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

I would like to express my heartfelt thanks to all those who have contributed to the development of my research on this topic with their comments, pre-readings, and criticisms. They include, in no particular order, Laura Palazzani, Thomas Casadei, Alberto Andronico, Tommaso Greco, Stefano Biancu, and Francesco D’Agostino. It goes without saying that I alone am responsible for what is written in the text and the reflections it contains. Of course, special thanks to Madison Allums, Naveen Dass, and all the editorial staff at Palgrave, for taking me through this experience. My wife Caterina deserves a special thanks: although she is not at all interested in the content of this research, she contributes through her daily dialogue, even on issues of legal and philosophical relevance, to a better fine-tuning of it. But above all, she makes me understand with words, gestures, concrete actions, and a daily ability to listen, what the really important things in life are. I would also like to thank, last but not least, Anna, Pietro, Francesco, and Marco, for their ability to give my life meaning, to make confusion and bring joy, to amaze.

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Contents

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1

Introduction

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Vulnerability: What Are We Talking About? Introduction Vulnerability and the Liberal Paradigm Autonomy and Vulnerability: The Relational Perspective Vulnerability as a Universal and Particular Condition Vulnerability and the Political Dimension: Meaning and Role of Vulnerable Groups References

7 7 11 14 16

The Vulnerable Groups and Their Legal Value Introduction The Development of the Notion of Group Vulnerability in International Law Group Vulnerability in the Jurisprudence of the European Court of Human Rights Group Vulnerability in EU Law Group Vulnerability and Bioethics References

31 31

Towards a Theory of Group Vulnerability Introduction The Challenges of the Concept of the Vulnerable Group Developing the Notion of Group Vulnerability

61 61 63 67

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33 40 46 50 57

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CONTENTS

Identity-Based Group Vulnerability Positional Group Vulnerability The Consequences of Group Vulnerability, Between the Rights of Individuals and the Rights of Groups Conclusions References

68 72 76 85 87

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Group Vulnerability and Parallel Dimensions Introduction Vulnerable Groups and Collective Victimhood Vulnerable Groups and Minorities Vulnerable Groups and Discrimination References

93 93 94 100 107 116

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Group Vulnerability and Power Introduction Vulnerability, Power, and Oppression Group Vulnerability and Resistance Group Vulnerability and Resource Distribution References

121 121 123 132 139 145

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Vulnerability in a Positional Sense: The Case of Clinical Trials Introduction Positional Vulnerability and Consensus Group Vulnerability and Pandemic Treatments, Trials and Informed Consent: The Case of Vulnerable Groups Conclusions References

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Identity-Based Group Vulnerability: The Case of “Irregular” Migrants Introduction Irregularity Conditions and Vulnerability Factors Group Vulnerability, Agency, and Resistance Practices Conclusions References

Index

151 151 153 157 161 169 170 175 175 177 183 188 189 195

CHAPTER 1

Introduction

In recent years, I have been involved in several research projects in the field of bioethics. One, in particular, funded by the European Commission, concerned the study of informed consent in clinical trials, with a specific focus on vaccines. Among the objectives of the research, which involved scholars from several European countries and different disciplines, was to assess all stakeholders’ needs in relation to Informed Consent. More in detail, we should identify gaps and barriers in the process of informed consent, and develop tailored strategies for informed consent processes, thereby creating and validating guidelines to improve citizens’ participation in research. What struck me at the beginning of this research was the fact that one of the explicit objectives of the European Commission was to overcome the factors that hinder the participation of women, children, and other ‘vulnerable groups’ such as ethnic minorities in clinical trials. I knew, of course, that the category of vulnerable groups had long been used in numerous legal instruments in the field of bioethics, but it had never occurred to me to deal with it specifically. In what sense were women, or minors, to be considered a vulnerable group? If the research aimed to develop strategies to facilitate information processes that take into account age or gender factors, in what sense were we to do so?

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 F. Macioce, The Politics of Vulnerable Groups, Critical Political Theory and Radical Practice, https://doi.org/10.1007/978-3-031-07547-6_1

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That research, in a way, was an opportunity to focus on a problem that, as far as I knew, had not been adequately analysed. A problem that could be expressed by paraphrasing the famous Metastasio words (taken up, but modified, by Da Ponte in Così fan Tutte): “È la fede degli amanti / Come l’araba fenice: / Che vi sia, ciascun lo dice / Dove sia, nessun lo sa” (The faith of lovers / is like the Arabian phoenix / That it exists, everyone says / But where, no one knows). Similarly, everyone mentions vulnerable groups, but no one precisely knows what they are, and where to find them. On the one hand, the issue of vulnerability has increasingly become an essential part of the philosophical, legal, and political debate. There is a large number of texts devoted to this topic, and they are drawn up from very different research perspectives: there are texts in which vulnerability is discussed in reference to the climate and to earthquakes, as well as texts that analyse vulnerability in the context of clinical trials. There are researches that analyses vulnerability from a legal, economic, sociological, political, anthropological, geographical point of view (without considering, as mentioned, the perspectives internal to physical sciences). In short, when one speaks of a vulnerability turn in the social sciences, one can do so with good reason. On the other, the topic of vulnerable groups is, if I may say so, somewhat ambiguous. In some cases, and from specific perspectives, the category of vulnerable groups is uncritically accepted, as if it were an obvious and unproblematic assumption: in the literature relating to the analysis of climate phenomena, or in the medical and epidemiological literature, for example, the category of vulnerable groups is not only widely used (to indicate entire populations, human groups, or specific clusters of subjects), but not problematized. It is considered somewhat self-evident that there are groups of populations that are particularly vulnerable to certain factors, and this notion is assumed as not needing further explanation. The same thing happens in other areas, more or less, with the important difference that the unclear definition of the concept, and its unpredictable application, are perceived more clearly as a critical feature: for example, in the legal literature, and in the area of international law, the works devoted to the analysis of the notion of group vulnerability, and the discussion of its origins and areas of application, also highlight the vagueness (or excessive breadth) of this concept and the different interpretations that arise from Courts’ case law. Such analyses, however, do not offer a real alternative, nor do they provide or attempt to provide

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more stringent definitions, or to delimit the applicability of this notion: in other words, the pars destruens —in which the lack of precision of the international documents referring to group vulnerability is criticised—is not followed by an equally precise pars construens, i.e. by an attempt to clarify what vulnerable groups are, and in what sense and to what extent this notion can be used. Finally, if we look at the philosophical literature, the possibility of accurately and sensibly using the category of group vulnerability seems to be completely discredited. Vulnerability, in philosophical scholarship, is mostly understood as individual vulnerability, and the attempts to identify vulnerable groups, and to describe common or collective conditions of vulnerability, are discredited as essentialist and stereotypical: on the one hand, the very possibility of identifying groups is seen as fallacious, because it is based on unacceptable essentialist claims; on the other hand, any description of a group of people as vulnerable is criticised as having the effect of labelling the subjects who are part of it, and as making them even more vulnerable and exposed to discrimination. The research conducted in these pages, therefore, moves within this horizon, to analyse this conceptual ambiguity, and try to reduce it. The aim of the research, therefore, is to describe—with specific regard to the legal and political context—the recurrent and, above all, undertheorized use of the notion of vulnerable groups, without, however, criticising its plausibility. On the contrary, the aim is to show in what terms, and to what extent, the category of vulnerable groups is both theoretically possible, and politically and legally necessary. In this sense, the critique of the extensive and indiscriminate use of the notion of vulnerable groups will not lead to a rejection of it, or a reduction of group vulnerability into individual vulnerability: rather, it will lead to a more precise definition of the boundaries of group vulnerability, and an analysis of the consequences of the proposed definition(s). In this attempt, however, I will not propose even a provisional list of vulnerable groups. It is not my intention in these pages to make a more or less comprehensive list of vulnerable groups, nor do I think there is any point in doing so—as a consequence of the proposed definitions that will be discussed in the text. What this volume can offer the reader is, in a more modest way, a proposal for a definition of vulnerable groups, thereby clarifying in what sense, and with what limits, such a category can be used, and what consequences such a definition may have—in terms of agency, of the possibility of action, of capacity to lay claims and needs. This is the reason why I will not offer a list of vulnerable groups:

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what is more, there are far too many lists in international documents, and I did not feel the need to add another one, which would also be without any force or cogency. This is also the reason why, except for a few cases, I do not even enter into the analysis of specific situations of group vulnerability: except for the two final chapters, in which I will analyse two cases (one for each of the two types of vulnerable groups I identify, according to the definitions that will be provided in the research), I do not discuss whether this or that group is really vulnerable, in what sense it is vulnerable, and with what consequences. The book discusses the issue of group vulnerability as follows: the first chapter provides a brief overview of the studies on the concept of vulnerability, and on the theories that—in legal and political philosophy—have used this concept as a point of observation on reality. The second chapter is dedicated to the legal concept of group vulnerability, but still in a purely descriptive way: in this chapter I describe the main uses of the category of group vulnerability in international law, and in the jurisprudence of the European Court of Human Rights, and I analyse the extensive and often incongruous use of this category. The third chapter is instead dedicated to the definition of group vulnerability, which is considered not only theoretically plausible, at least when interpreted in a non-essentialist way, but also politically useful, even if susceptible to being misunderstood and applied in a victimising way: in this chapter, therefore, two definitions of group vulnerability will be offered, i.e. two different ways of understanding group vulnerability, depending on the circumstances and characteristics of the group itself. In the fourth chapter, the concept of group vulnerability is put in relation with the categories and concepts of minority and discrimination, and with the processes of victimisation that can affect groups as well as individuals; this is both to highlight the differences and highlight the distance between the category of vulnerable groups, and the three dimensions indicated, and to highlight the conceptual autonomy of each dimension and the different protection needs. The fifth chapter analyses the complex and often ambiguous relationship between group vulnerability and power: in particular, it discusses both the theme of oppression, and the forms through which power is exercised towards vulnerable groups, and the positive aspect of the relationship between group vulnerability and power, that is, the forms through which group vulnerability manifests itself as a place of resistance to oppression, and as a context in which claims and positive actions emerge. Finally, in the two concluding chapters, two cases are presented, each related to one

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of the two forms of group vulnerability identified and described in the text: the case of clinical trials, concerning group vulnerability in a positional sense, and the case of migrants in conditions of irregularity, with reference to the identity-based group vulnerability. Small parts of the third section have been previously published in Macioce, Fabio. “Group Vulnerability, Asymmetrical Balance, and Multicultural Recognition”. Ratio Juris 31.4 (2018): 469–484. Parts of the seventh section have been previously published in Macioce, Fabio. “Informed Consent and Group Vulnerability in the Context of the Pandemic”. BioLaw Journal-Rivista di BioDiritto 2S (2021): 17–33. Parts of the eighth section have been previously published in Macioce, Fabio. “Undocumented Migrants, Vulnerability and Strategies of Inclusion: A Philosophical Perspective”. Constellations 25.1 (2018): 87–100.

CHAPTER 2

Vulnerability: What Are We Talking About?

Introduction Over the last decades, the notion of vulnerability1 has become progressively more relevant in philosophical debate, in the language of the social sciences, as well as in legal texts, guidelines, and documents concerning national and international policies. Vulnerability is invoked to justify preventive measures, additional justification burdens, enhanced forms of protection for specific assets (e.g. territories, artistic heritage…), or rights. The concept of vulnerability is used to designate categories of persons or single individuals on the basis of both their assumed physical fragility and their equally lacking autonomy or presumed incapacity to express free consent. At the same time, the concept of vulnerability is used to identify situations of particular exposure to risk due to economic, environmental, social, and legal factors, in a process of accumulation of social handicaps (Ferrarese 2016, 151). The reasons for such a theoretical success 1 Throughout the text I will use the notion of vulnerability—unless a different meaning or use is expressly indicated—to indicate a state of high exposure to certain risks and uncertainties, in combination with a reduced ability to protect or defend oneself against those risks and uncertainties and cope with their negative consequences. Such a definition is consistent with that provided by the United Nations Department of Economic and Social Affairs, United Nations Report on the World Social Situation: Social Vulnerability: Sources and Challenges (UN, New York, 2003).

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are manifold: among the many, some point out both the growing insecurity and political instability of the last two decades, and the changes—the increasing precariousness—in the labour market, as well as the financial instability of the markets, and the emergence of an “affective turn” in social theories (Cole 2016). Unfortunately, the concept of vulnerability is as much discussed and used, as it is scarcely systematised. While there are many moral, political, and social theories that use this concept, and that interpret it in different ways and from different perspectives, very few works provide a definition of the concept and a framework of its uses in different fields and sectors (Mackenzie et al. 2014). However, it is possible to point out that this concept has been developed over the last few decades in three main perspectives (Mackenzie et al. 2014, 2): within analyses of dependency and theories of the ethics of care; in bioethical debates; in an ontological perspective, within reflections on the human condition and corporeality. Additionally, we may mention analyses that take vulnerability as a standpoint for problems of distributive justice, although this approach seems to be transversal to the three previous ones, at least in most cases. In the first perspective, for example, we may consider the analyses of Eva Kittay (1995, 2019), MacIntyre (1999), and Nussbaum (2001, 2009), in which the dimension of vulnerability as dependence is interpreted as a fundamental paradigm for the elaboration of an ethical–political perspective, as well as the theory of Robert Goodin (1986), in which the category of vulnerability as dependence on others (in a Lévinas-like perspective) is taken as the basis for the moral imperative, and the justification for social interventions. In this vein, some scholars underlined the importance of specific instances of vulnerability as a primary reference for public policies and interventions oriented to social justice (Tronto 2013). If the human vulnerability is understood as arising in large part from social factors and the environment, care interventions necessarily entail making claims on social institutions and “all capable others”, because the intervention of narrow caregivers is not enough (Engster 2019, 112). For instance, a public duty in terms of “caring with” is necessary to mitigate workers’ vulnerabilities (to harms, joblessness, underpay, exposure to dangerous work conditions, among other things), being narrow care networks unable to do so (Engster 2019; Engster and Hamington 2015; Tronto 2013, 23). The concept of vulnerability is also present in several international documents and legal instruments (the second chapter is devoted to this

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topic) concerning biomedical interventions, as well as in a large number of studies in the field of bioethics. Within this field, both scholars and legislators highlighted specific areas or contexts of vulnerability in bioethics, thereby developing specific burdens of protection towards certain groups in clinical trials: for instance, vulnerability has been interpreted—with regard to informed consent procedures—as a condition of increased exposure to risks deriving from clinical, cognitive, relational, social, economic, or structural reasons (Kipnis 2001). At the same time, in bioethics, a certain excessive use of the notion of vulnerability has begun to be criticised, especially when it is used to label—at least in documents and guidelines—whole populations or groups of individuals. The dangers of such a “labelling approach” have thus begun to be emphasised, since it is liable to obscure the needs of single individuals in a given context (Hurst 2008; Luna 2009), and since it is so extensive as to be meaningless, as well as stereotyping and discriminating (Rogers et al. 2012; Rogers 2014, 76). Finally, in the third perspective, many scholars focused on the bodily dimension, thus contributing to shifting the discussion into an ontological perspective. Starting from Butler’s analyses, the investigation into vulnerability became the interpretation of the human condition as such, and led to distinguishing universal human vulnerability as a form of exposure to hurt and suffering (precariousness), from conditions of pathogenic vulnerability, i.e. socially induced vulnerability (precarity) (Butler 2016, 25). Similarly, vulnerability has been discussed within the horizon of the ethics of care, underlining the importance of specific instances of vulnerability as a primary reference for public policies and interventions oriented to social justice. It is also with reference to these analyses, that Fineman (2008, 1; 2010, 251) and Turner (2006) discussed the concept of vulnerability in political and social theory, to both explore anti-discriminatory policies, in response to conditions of inequality or disadvantage, and focus on forms of structural injustice hidden behind the liberal model and its myth of a perfectly autonomous and rational individual. Since vulnerability is an anthropological feature, it cannot be ignored and marginalised in the private sphere: rather, it is the basic reason human beings create political institutions and claim state intervention (Fineman 2013). It is worth noting that despite the diversity of approaches and the plurality of meanings of the term, some topics seem recurrent within the theories of vulnerability. To be more precise, three main axes of research can be identified within vulnerability theories. These are not themes that are developed by every theory of vulnerability; rather, they are research

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issues that are particularly significant in these theories, even from different perspectives. A first topic which is extensively discussed by theories of vulnerability is the dialectic with liberal thought: not necessarily in the sense of rejecting such a tradition, but at least in the sense of highlighting that some of its salient characteristics are inadequate to fully grasp the human condition. Theories of vulnerability, also with arguments developed within feminist approaches, focus on typical liberal assumptions, such as the emphasis on the individual and on his (the masculine pronoun is not accidental) autonomy, as well as the crushing of this autonomy on the rational dimension, that is, on the ability to exercise a kind of sovereignty over one’s own life and choices. Theories of vulnerability challenge this horizon, emphasising in contrast the value of human relationality and the constitutive dependence of the human being. The second topic that is developed by many theories of vulnerability is the alternative between an interpretation of vulnerability as an ontological characteristic, and therefore as a universal trait, and the emphasis on situated vulnerability, or more generally on the specific circumstances that produce conditions of vulnerability for individuals or groups. On the one hand, therefore, the idea of a universal vulnerability contradicts the liberal myth of autonomy and independence as the marks of the human condition; on the other hand, the focus on circumstances of vulnerability makes it possible to highlight the dynamics of power, oppression, and exclusion that determine conditions of vulnerability, and ground claims in terms of recognition, redistribution, or balancing of power. As a consequence, the third thematic area is the investigation of the social, political, and institutional structures that shape, and respond to, subjective vulnerability. Central to this, is the analysis of the political dimension of vulnerability, in opposition to a rigid separation between public and private which is typical of many liberal accounts, as well as discussion on the factors that can determine the specific vulnerability of each individual. The theme of vulnerability is intertwined here with that of resilience, but both are understood in their public or social dimension, i.e. with reference to the question of the resources (be they personal, material, institutional) that society makes available to each person. These axes of the research on vulnerability will be discussed in the following paragraphs. However, it should be pointed out that, transversal to them, a fourth perspective can be identified, which is represented by

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the increasing relevance of a relational understanding of the human condition: here both the concept of autonomy and that of vulnerability are understood in a relational perspective, in order to highlight the extent to which both are “shaped” by the system of social, political, and institutional relations. Lessening the anti-liberal reading of vulnerability, this approach shows how the promotion of autonomy (even though understood in a relational sense) is necessary for the fulfilment of political and legal obligations resulting from the vulnerability of individuals or groups, and that it should not be interpreted as an alternative to the condition of vulnerability itself (Nedelsky 1989; Mackenzie and Stoljar 2000; Anderson 2003; Christman 2004; Anderson and Honneth 2005). Finally, it should be emphasised that even if this impressive flourishing of studies and analyses is probably the source (or one source) of the ambiguity of the concept of vulnerability, it retains a strong critical value from both a political and a theoretical point of view, being a crucial standpoint for challenging discriminatory policies and practices. On the one hand, depending on the perspective one follows, vulnerability may be linked (in different ways and for different purposes) to the bodily, emotional, psychological, and affective spheres, it may be understood as a condition that is either universal or particular and it may be considered as an element that is both intrinsic to the human condition as well as contingent and dependent on specific circumstances. On the other hand, as Fineman correctly argues, the ambiguity of the concept of vulnerability enables to explore the complex relationships inherent but sometimes hidden in the term, using this concept as a heuristic device (Fineman 2008, 9). Therefore, vulnerability remains a conceptual basis for political agency, that is, for opposing systems that produce marginalisation and oppression. In other words, the ambiguity and broad applicability of the concept allow it to be used to construct critical perspectives in the legal or political sphere, so as to raise new questions and elaborate new solutions to social and political challenges.

Vulnerability and the Liberal Paradigm The reflection on vulnerability has been developed along with criticisms—arising from different perspectives—of the liberal paradigm of the autonomous, independent, rational, and productive subject (Kittay 1997; Fineman 2004; Fineman and Grear 2013). Such criticisms have been developed by perspectives that can be traced back to feminist or

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communitarian thought, highlighting how the liberal conception is not able to take the condition of constitutive dependence of the human being into account, nor the relational and progressive character of the construction of the self. Even if there are significant differences between these approaches, they all underline the inadequacy of the liberal account of justice, precisely because it is unable to take the bodily dimension, the relational dimension, and the social and political aspects of human experience fully into account. Liberalism itself, of course, is far from being homogeneous. Therefore, criticisms which are relevant here should not be understood as referred to liberalism per se, as a theoretical model, rather as concerning specific traits of liberalism, linked in particular to its underlying anthropology and to liberal accounts of justice which are consequent to such anthropology (Nussbaum 1997, 5).2 At the same time, it is true that, within liberal theories, the intuition of the fundamental equality (in terms of dignity) of every human being, regardless of their status and role in society, arises directly from the capacity of human beings to elaborate life plans and choices in accordance with one’s own subjective values and goals (Nussbaum 1997, 4). If justice in political contexts can only be realised in a reciprocal limitation of individual freedom and collective interest, at the core of the liberal tradition there is the guarantee of the interests and choices of independent and autonomous citizens, whose voices give legitimacy to the structures of power that implement justice in a given context. Criticism of the liberal model, in other words, has centred on this conception of the person as fully autonomous, self-determining, and independent. From communitarian and identity politics perspectives, for instance, the excessive individualism of such a vision has been stressed, i.e. the idea that the subject and his/her identity can be defined before, and independently of, collective aims, values, memberships, and identities (Sandel 1981; Kymlicka 1989). From feminist perspectives (MacKinnon 1987; Abbey 2014), it has been pointed out that the premise of this

2 Nussbaum rightly points out that the focus on vulnerability does not imply, per se,

the rejection of the liberal approach: she argues that (p. 5) “liberalism needs to change to respond adequately to those insights: but it will be changed in ways that make it more deeply consistent with its own most foundational ideas”. In this sense, according to Nussbaum, some basic liberal assumptions are essential to guarantee substantial justice for women: among these, in particular, the centrality of the idea of equal citizenship.

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independence is the (unpaid) care labour performed by women, and that therefore such a perfectly independent (or falsely independent) subject is essentially a male one, whose independence is gained at the expense of that of women (Okin 1989, 138)3 ; that the liberal account of justice is excessively formal, and therefore inadequate to manage and modify systemic injustices that depend on mechanism of power and culture (Young 1990, 114); and that it is generally hyper-rationalistic, and therefore tends to devalue the significance of emotions and caring in public life, thus contributing to placing the question of vulnerability in the private sphere (Jaggar 1989; Lloyd 1993). The idea—especially in the so-called feminism of difference and in critical theories—is that the liberal model has taken a disembodied subject as its reference: therefore, it is unable to appreciate relationships of care, as well as the constitutive condition of dependence of the human being, and it is more generally blind to the relational character of human existence, arising from patriarchal premises that actually allow these aspects (Tronto 1993, 120) not to be seen, and not to be considered. On the contrary, liberalism confines them to the private sphere and delegates them (in a logic of exploitation) to the unpaid work of women (Gilligan 1982; Pateman 1988). Finally, disability theories have emphasised how the condition of universal dependence should be discussed in conjunction with the specific forms of dependence experienced by people with disabilities, and highlighted that the (liberal) objective of protecting and enhancing individual independence should be replaced with that of managing universal and specific dependence (Kittay 2019), and with a new understanding of legal capacity and autonomy (Bernardini 2018). In short, these critiques have underlined that a different and more complex subject should be placed at the centre of the polis, whose specific trait (inclusive of, but not reducible to,

3 “The division of labor within marriage (except in rare cases) makes wives far more likely than husbands to be exploited both within the marital relationship and in the world of work outside the home. To a great extent and in numerous ways, contemporary women in our society are made vulnerable by marriage itself. They are first set up for vulnerability during their developing years by their personal (and socially reinforced) expectations that they will be the primary caretakers of children, and that in fulfilling this role they will need to try to attract and to keep the economic support of a man, to whose work life they will be expected to give priority. They are rendered vulnerable by (…) the fact that the world of wage work, including the professions, is still largely structured around the assumption that “workers” have wives at home” (pp. 138–39).

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dependence: Fineman 2008, 11)4 is precisely that of vulnerability: such a trait, if understood as an inherent feature of human experience, cannot be hidden (even if it is confined to the private sphere), and deconstructs the distinction between autonomous and non-autonomous subjects.

Autonomy and Vulnerability: The Relational Perspective It is precisely around the concept of autonomy that the reflection developed by the theories of vulnerability has manifested the “relational” approach I mentioned earlier. Within this relational perspective, autonomy ceases to be understood as a subjective predicate (a quality of individual subjects, so that one can say that someone is either autonomous or not), and becomes an ontological trait whose exercise can be facilitated or inhibited by the networks of relationships of each person. All, or almost all, in this sense, may be autonomous, even if some need the support of others to exercise their autonomy, and even if some need it more extensively than others. In this sense, autonomy depends on the guarantee of subjective freedom, as well as on the availability of resources and supportive relational networks, given that these elements do not determine individual choices, but they support them and make them possible: construed in such a way, autonomy becomes a dimension that is compatible with vulnerability and dependence, rather than an alternative to them. Therefore, autonomy is linked to the availability of material resources, as well as to the institutional and regulatory framework that make its exercise possible. Firstly, it refers to social rights, i.e. to goods and material resources (such as education, health, adequate economic conditions, opportunities to participate in the cultural and religious life of one’s community, etc.) that are the social conditions of autonomy (Rawls 1971; Raz 1986; Young 1986; Oshana 1998; Sen 1999). Secondly, autonomy requires the subject to be placed in a relational context suitable for its exercise, and more precisely in a context characterised by positive relations of recognition: autonomy is a capacity that flourishes within social 4 “Dependency is episodic and shifts in degree on an individual level for most of us, mainstream political and social theorists can and often do conveniently ignore it. In their hands, dependency, if acknowledged at all, is merely a stage that the liberal subject has long ago transcended or left behind and is, therefore, of no pressing theoretical interest”.

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relations that support it, and foster the awareness of being autonomous (Nedelsky 1989, 25; Anderson 2003). In other words, the capacity to make autonomous choices, i.e. choices that can be recognised as corresponding to one’s objectives (Anderson 2008), depends on a series of conditions, which are at the same time normative, institutional, and societal. Each agent is placed in a historical, social, class, racial, and gender context, which has a significant impact both on one’s conception of the self and on one’s actual capacity for acting and self-determination. Each of us, when we consider ourselves to be endowed with normative authority over our actions (i.e., properly, to be autonomous), presupposes some existential conditions that support our autonomy: this capacity, in short, can be sustained by relations of intersubjective recognition (Mackenzie 2008, 514). Because of this, autonomy is understood as a concept of degree: the social conditions that support autonomy and make its exercise possible are also the factors which determine its enhancement or reduction. Oppressive contexts, or those dominated by prejudices and stereotypes, for example, can strongly reduce the capacity for reflection and selfdetermination, consequently diminishing the extent of the authority that the subject acknowledges to himself/herself over his/her own actions (Meyers 1991) This certainly does not mean that individual autonomy should be considered non-existent, and totally determined by the relationships and social structures within which each individual is inserted. Rather, it implies recognising that autonomy depends on a series of attitudes towards oneself and the world (namely: self-esteem, self-respect, self-confidence) (Honneth 1996, 105) and that these attitudes are in turn dependent on relationships of recognition, in both a positive and negative sense. Self-confidence, self-esteem, and self-respect are not mere emotional states, but capacities that emerge in a dynamic process: the relationship that each person has with himself/herself is the result of a complex set of social relations, in which normative systems that recognise and protect the dignity of the person interact with affective relations that support self-confidence, and with networks of relations in which individual choices are shared and appreciated (Anderson and Honneth 2005, 131). If such a process is positive, subjective autonomy is strengthened and sustained; if the process of recognition is negative (because the subject is placed in a context where his/her choices are despised and devalued, his/her dignity is unprotected or misrecognised, and relationships are a place of humiliation and degradation), subjective autonomy is

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severely limited, and greatly compromised (Anderson and Honneth 2005, 131). The relational dimension of autonomy, however, does not cancel the individual dimension. Consistently with the liberal model, it is essential to ensure that the individual is able to freely determine his or her own goals, values, and desires, without this determination being conditioned by the will of others, and particularly by the will of stronger subjects, those with more power, more information, or more means; in other words, this means defending the individual from oppression and—in equal measure— from paternalism (Mackenzie and Rogers 2013, 42). However, it is also necessary to ensure that the individual may enjoy a relational context that supports his or her choices, and in which these choices are recognised, appreciated, considered possible and worthwhile. Social and personal relationships that support self-confidence, self-esteem, and self-respect, in this sense, are just as important as the rights that guarantee the exercise of autonomy against external pressures (Mackenzie and Rogers 2013, 44; Korsgaard 1996, 101).

Vulnerability as a Universal and Particular Condition The dialectic with the liberal paradigm (or at least with some aspects of it) has had the objective of challenging some anthropological assumptions, related to the autonomy, independence, and rationality of the subject, highlighting the inherent vulnerability and dependence of the human being: in this way, such a dialectic contributed to the understanding of vulnerability as an ontological trait, thus inherent to all human beings (Turner 2006, 29). However, within the theories of vulnerability, such an idea of inherent vulnerability has been accompanied by the reflection on specific, contextual, and individual forms of vulnerability. While all human beings are vulnerable, they are not vulnerable in the same way, and vulnerability varies in intensity, characteristics, and extent. Therefore, the reflection on vulnerability has not been limited to the understanding of its ontological traits, but it has focused on analysing those factors, conditions, and resources that determine its magnitude. In this vein, in order to distinguish between inherent vulnerability and the vulnerability produced by (or consequent to) a differential distribution of resources, capacities, and conditions, Judith Butler introduced the terminological distinction between precariousness and precarity (Butler

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2006, 2016). Therefore, while precariousness qualifies the vulnerability that every human being lives because of his/her bodily condition, finiteness and limitation, and exposure to need and suffering (Cavarero 2009), precarity depends on the social, political, economic, and relational forms that shape our lives. However, precisely because the ontology of the human being is constitutively relational and social, and one being is never definitively separable from the other, nor from social norms or historically given political and social structures, we never know this ontological vulnerability (precariousness) except in the forms of its differential, social, and economic distribution (precarity). Vulnerability as precariousness, in other words, ceases to be exclusively an ontological trait, and also becomes dependent on economic, political, and social factors, on the presence or absence of infrastructures and services, and on the availability or lack of resources. In short, it becomes a political question. In addition to being an existential trait, vulnerability is a social fact, dependent on the functioning of economic, social, and political institutions, and by the network of relations within which individuals live. It should be emphasised that for Butler, precariousness and precarity are two sides of the same coin: they are two interrelated and mutually conditioning dimensions. Existential vulnerability is in fact experienced by each individual within economic, social, and political structures that shape its intensity and draw its boundaries. In the bio-political logic of contemporary power, the hiding of the condition of vulnerability (as precariousness) is the premise for a differential distribution of vulnerability (as precarity), such that some subjects are made vulnerable, qualified as vulnerable, and identified as “others’ precisely because of their fragility, exposure, dependence, etc.… For this reason, vulnerability must be thought of within the horizon of power, and the process of social differentiation that creates otherness by excluding some individuals from spheres of economic, social, cultural, and political power (Butler 2006, 44): for some, vulnerability is induced by the loss of protection, failed relations of recognition, practices of discrimination and marginalisation, inadequate resources, cultural processes of stigmatisation, and by other factors, which determine a higher exposure to risks and precariousness. Vulnerability as precarity has in turn been appropriately analysed from a relational perspective. This has been done by emphasising how precarity is linked to the possibility of being harmed by other persons and groups, and to a limited capacity to defend oneself in a condition of power imbalance (Goodin 1986, 112). This approach has led to significant analyses in the

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field of bioethics, where the vulnerability of people and groups (including, for example, pregnant women, or people unable to express their consent, or prisoners) has been understood as a condition of particular exposure to exploitation and manipulation, due to power asymmetries—in terms of skills, knowledge, information—between the person participating in a clinical trial and the research team, or even simply between patients and doctors (Macklin 2004). In this case, vulnerability cannot be reduced to an inherent condition of the human being: its specific conditions, relevant power relations, the material and personal resources which are available, as well as the characteristics of the clinical or research context (Macioce 2019a, 2019b), must all be taken into account. This relational approach to vulnerability has led some scholars to further specify the distinction between precariousness and precarity, distinguishing between existential vulnerability, situational (or contextspecific) vulnerability, and conditioned (or pathogenic) (Rogers et al. 2012; Mackenzie et al. 2014, 7) vulnerability. In the first group, one can find conditions of vulnerability which depend on the existential characteristics of the subject, and on his or her life conditions: these conditions, which are not necessarily expressive of vulnerability, can become so in certain circumstances. For instance, the age of minority, or pregnancy, are not per se conditions of vulnerability, but can become so in a clinical setting, or in a trial, due to the specific type of risks and burdens to which people are exposed.5 Similarly, the specific group membership can be an example of existential vulnerability: even if the belonging to one group or another is not in itself a factor of vulnerability, it can become so depending on the social context, and power relations, within which that group is located6 (a discriminated minority, or groups of individuals subjected to restrictions of freedom) (Aldridge 2014). This first type of vulnerability only partially matches Butler’s idea of precariousness, being rather

5 According to the 16th AIFA National Report on Clinical Trials of Medicinal Products in Italy, the share of trials carried out exclusively in the female gender (5.5%) is really minimal, as is that in paediatric populations (8.6%); the report can be consulted at: http:// www.aifa.gov.it/sites/default/files/Rapporto-OsSC_16-2017.pdf (accessed 29 December 2021). 6 See the Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research that states special protections for groups at art. 15, 18, 20. See also CIOMS, International Ethical Guidelines for Biomedical Research Involving Human Subjects (Geneva, Switzerland: 2002).

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a reinterpretation of ontological vulnerability from a relational perspective: vulnerability, in this vein, depends both on factors or conditions shared by every human being (age, physical fragility, dependence on other human beings), and on contingent factors (age, gender, state of health, disability), which produce vulnerability in the specific context, i.e. not in themselves (Mackenzie et al. 2014, 8). Situational vulnerability, on the other hand, includes conditions of vulnerability that are caused or aggravated by environmental, political, social, economic factors, and so on. These factors can be interrelated with the “existential” ones: for example, economic disadvantages can produce conditions of fragility or pathological conditions, when they interact with unprotective institutional contexts. Vice versa, particular health conditions can lead, in some situations, to social vulnerability, loss of employment and income, and so on. However, these conditions of vulnerability depend primarily on the specific situation in which individuals are, even if subjective resources and the degree of resilience of people can affect the magnitude of this vulnerability in each case (Mackenzie et al. 2014, 8). It is also true that resilience itself must be interpreted from a situational perspective: it is strongly conditioned and shaped by the social and institutional context in which the subject is placed, and which provides people and gives them access to resources to very different degrees. Therefore, the availability of resources determines the degree of vulnerability, whether due to inherent or situational factors. These resources can be divided into three (or at least three) categories: material resources, human or physical resources, and social resources (Kirby 2005, 55). First, social institutions can provide economic goods, or services, that directly or indirectly can be used as material resources in order to minimise vulnerability: taxes, subsidies, credit systems, property and inheritance rules, may determine the amount of material resources available to the subject. Second, social institutions can even impact on physical resources and capacities that we have as human beings, for example through a more or less inclusive and accessible healthcare system, as well as through education and school systems, social services, care facilities, employment services, and so on (Nussbaum 2009, 70, 164). Third, individual resilience may be shaped by the network of relationships within which each person lives, and which provides—or does not provide—support (be it material, symbolic, or psychological) that the subject benefits from: even in this case, although these systems are not directly provided by social

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institutions, the way in which they regulate, support, or penalise them (policies affecting the family, housing, work, old age, etc.) can greatly influence individual vulnerability. Within this group, as a subcategory, a pathogenic vulnerability may be found: vulnerability is here the result of the specific situation experienced by the subject, but such a situation is produced by a power imbalance, or by forms of oppression and discrimination, or by economic need, or even by the adverse functioning of systems and policies allegedly aimed to reduce vulnerability (Mackenzie et al. 2014, 9). For example, the condition of an asylum seeker in an immigrant reception centre is in some respects situational, i.e. context-dependent (because of past experiences of persecution, separation from family and context of origin, traumatic experiences during migration, etc.), but it becomes pathogenic when one considers the discrimination that migrants suffer, the restrictive policies adopted by destination countries, the hostile attitude of part of the population, the phenomena of racism and marginalisation, and so on (Mackenzie et al. 2014, 40). In a very different context, such as that of clinical practice or trials (which may produce conditions of situational vulnerability), the way in which the patient is treated by nurses and doctors, the time devoted to explaining treatments, the language used by health personnel (too specific, abstract, or technical, etc.), are all elements that render the subject vulnerable, as a consequence of a specific behaviour that could or should have been different. It is not simply a question of the possibility of medical error or negligent conduct, but of behaviours that are in themselves legitimate and that even unintentionally create conditions of vulnerability, since they produce information deficits, being based on cultural prejudices and stereotypes, or failing to take religious sensitivities into account, etc. (Biros 2018, 75).

Vulnerability and the Political Dimension: Meaning and Role of Vulnerable Groups The situational or pathogenic dimension of vulnerability, as well as the link between the resilience of individuals and groups, and the distribution of material, personal, and social resources, explains the attention that has been devoted to the role of institutions by theories of vulnerability. Vulnerability, in other words, has frequently been analysed from a political perspective, as a standpoint for a critical reinterpretation of the role of

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institutions, or to claim public policies, or make demands for recognition, and so on. Martha Fineman, for example, offered an analysis of vulnerability that is very attentive to political and institutional consequences. While on the one hand she strongly criticised the possibility of classifying vulnerability within some kind of taxonomy, arguing the universal nature of vulnerability itself, on the other hand she emphasised the link between vulnerability and the distribution of resources, in order to discuss the role of public institutions in balancing vulnerability and resilience. In this vein, Fineman argues that labelling some individuals or groups as vulnerable “transforms our shared vulnerability into a personal liability” and makes the individuals susceptible to alienation, stigma, or discrimination (Fineman 2012, 1750); moreover, the most dangerous effect of labelling only some individuals and groups as vulnerable is that such segmentation of the general population “suggests that the rest of us are not vulnerable” (Fineman 2012, 1751). At the same time, the universal vulnerability of the human being justifies a political shift: the passage from institutions conceived in order to maximise freedom and competition between autonomous and rational subjects—the myth of autonomy, according to Fineman (2004)—to a responsive state, in which the intervention of the state is primarily oriented towards guaranteeing substantial equality between people, understood as being intrinsically and inevitably bound by relationships of dependence (Fineman 2010, 251). This is not a mere, albeit important, claim for more egalitarian policies, or for a welfare state model alternative to hyper-liberal state models: in Fineman’s account, the claim for a responsive state is the consequence of a theoretical approach that interprets vulnerability as a heuristic device. Vulnerability brings out prejudices, inequalities, hidden or evident discriminations, as well as hidden ambiguities in political, economic, and social structures. When vulnerability is conceived as situated, social, and relative (also) to the resources distributed to individuals, it becomes a fully political question. For many authors, the theme of vulnerability has an evident and fully political value. It makes visible what is normally concealed (Zanetti 2019, 29), contributing to bringing to the fore what is marginalised. It also favours the development of political and publicly relevant arguments for those (individuals and groups) who rarely stand on the public arena, and who are always in a subordinate position, at least as long as the public realm is dominated by a classical liberal anthropology (Fraser 1990,

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56). Several feminist scholars often underlined this perceptual shift, interpreting vulnerability as a different form of strength, as an alternative to anthropologies oriented towards possession and domination, as a place of redemption, and as an opportunity to open up to the construction of different relationships and social models (Casadei 2015, 84). In short, looking at reality from the perspective of vulnerability means looking at inequalities and marginalisation from the perspective of redemption and resistance, moving from a logic of acceptance to a logic of dissent, to the prefiguration of places of resistance, to the demand for visibility, and (struggles for) recognition (Casadei 2015, 78). This political turn of the philosophies of vulnerability is not without its difficulties. Many theories take seriously into account the socio-political dimension of human vulnerability. However, their focus mainly remains on the condition of the single individual: it is the single vulnerable person (whose conditions are taken into consideration) who comes to the fore, even if his/her condition is similarly and simultaneously experienced by other people. Groups are often considered as a consequence, as clusters of individuals experiencing similar conditions of vulnerability, but not as elements that are significant in themselves for understanding such individual vulnerability. Therefore, even admitting the practical usefulness of referring to vulnerable groups in legal texts, theories on vulnerability tend to focus on the condition of the single individual. Beyond an—ultimately traditional—appeal to substantive equality, and besides the fight against all forms of discrimination, the political weakness of these perspectives seems to be precisely the lack of a political subject, or more precisely the difficulty of constructing such a political subjectivity on the basis of theories of vulnerability (Cole 2016, 272; Ferrarese 2016, 156). In other words, putting the theme of vulnerability at the centre of the discourse is not enough to transform the question of vulnerability into a political question. According to Rancière (2006, 6), in order to move to a political level, the theory of vulnerability must prove capable of sustaining claims on the public scene, of demanding power and a different distribution of power itself, of articulating dissent, and of presenting itself as an alternative to the existing power structure. As long as vulnerability remains confined to the (fundamental) task of determining and identifying injustice, exclusion, and exploitation, it lacks a strong political efficacy: in order to enter the political dimension, it must be used to modify the power imbalances and the threshold between mere misfortune and injustice, as well as to activate processes of change.

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As already mentioned, theories of vulnerability represent a necessary step to unhinge the privilege of ignorance, i.e. the condition of false autonomy and independence of the many, uncovering its link with an unequal and unbalanced power structure. It is a necessary step, because it implies the understanding of vulnerability outside of an exclusionary logic—in which vulnerable subjects are always “others”, people marked by either failure or misfortune: thinking about vulnerability means thinking about ourselves and our universal condition as human beings. However, this by itself is not a sufficient step, without due clarification of its social and political benefits, in terms of the capacity for action and claim-making, and in terms of presence in public space: which means, positioning alternative points of view within the debate. This shift, unfortunately, is by no means trivial. On the one hand, the focus on the needs of individuals, as embodied and vulnerable subjects, clashes with the language of law, which has been conceived instead in abstract and universalising terms (Ferrarese 2016, 156). On the other hand, the reference to vulnerability as a universal human condition, if it correctly overturns the anthropological paradigm underlying the liberal model, does not translate into specific public claims: at most (and this is not insignificant), it is able to support arguments in favour of a more “responsive” state. It should be noted that this difficulty does not imply, per se, a political insignificance of the notion of vulnerability, either at the actual or potential level: the very discussion of the functioning of legal institutions oriented to the protection of vulnerable subjects, and of the link (the almost foundational link) between these institutions and a model of legal subjectivity shaped by unrealistic ideals of autonomy and independence, represent undoubtedly some politically relevant facts. However, in order to undermine, or even just modify, such a cultural, social, and political order, a further step is necessary: we might say, somewhat emphatically, that a transition from argumentation to political action, from criticism to activism, is necessary. As many experiences within the horizon of feminism show, the analyses must be accompanied by an uprising, in order for there to be real redemption, a change in the existing structures of power. The chances that the reflection on vulnerability can fully enter the political sphere depend on the extent to which it can lead to forms of activism; on how far the link between vulnerability and force is re-conceived, starting from the new awareness that is

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based on such a reflection. In other words, it depends on whether vulnerable people, conceiving themselves as counterparties, begin to develop not only arguments, but also public claims and forms of political struggle. Now, and this is especially relevant to the analysis conducted in these pages, this self-understanding as a counterparty in public discourse, and such a capacity for political agency, implies a shift from the individual dimension of vulnerability to the collective dimension. As Fraser writes, members of subordinated social groups—such as women, peoples of colour, gays and lesbians, and others—have sometimes benefited from constituting alternative publics. Fraser proposes to call these “subaltern counterpublics ” in order to highlight that they are “parallel discursive arenas” where members of these subordinated groups invent, propose, and share different interpretation of their identities, thereby bringing out their interests, and needs (Fraser 1990, 67). This collective dimension does not necessarily require the constitution of groups in a formal sense, but it nevertheless requires processes where a collective consciousness is formed and defined, i.e. processes through which the awareness of common needs and shared objectives are focused. These groups, in different ways and forms, can act both as places of exchange and mutual aid, as well as being the place for the construction and consolidation of public practices and forms of activism directed outwards, oriented towards the eradication of the privileges of dominant social groups (Fraser 1990, 68). This collective agency is, it seems to me, the necessary condition for vulnerability to become, on the political level, an opportunity for resistance, redemption, and emancipation. In such a generative perspective, vulnerability reinforces bonds between human beings: the position of marginality to which the stratification of power condemns vulnerable subjects may also be a starting point for new political agendas, new views, and innovative forms of participation. The collective dimension of vulnerability, in this sense, is crucial: as far as I know, every social-political process that has led to the repositioning and redistribution of power, from the trade union movement to the feminist movement, from religious minorities to black minorities, from the claims of people with disabilities, up to the most recent claims of LGBTQI+ people, has required collective mobilisation and group agency. All these struggles have required the agency within the public sphere of movements, groups, communities (i.e. not simply individual actors). In all these cases, the issue at stake has been the shift of the discourse on vulnerability from the purely individual to the

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collective dimension: it is not the discrimination suffered by the single individual that matters politically, but the discrimination suffered by an entire group of people. The collective side of vulnerability is not unproblematic, of course. On the one hand, important difficulties come from the challenge of understanding and defining the identity of these groups, that is, of entities composed by individuals who are very different from one another, even when they share certain living conditions and claims. On the other hand, there is the risk of essentialism, of making vulnerability a qualifying condition for a group of people, thereby strengthening processes of labelling and stigmatisation, rather than reducing them: as a result of these processes, the belonging to a group may in turn be a source of discrimination and vulnerability (Luna 2009, 122). As a consequence, it has been proposed to substitute the notion of vulnerable groups with the more modular and contingent notion of “layers of vulnerability”, which in each context and for each individual can overlap and add to each other: accordingly, a person is not vulnerable because he or she belongs to a vulnerable group, but is made vulnerable by the presence, in a given context, of one or more overlapping layers of vulnerability (Luna 2009, 129). These criticisms seem to me very convincing, at least to a large extent. However, they do not solve the problem of the political agency of vulnerable subjects, limiting themselves to pointing out the (absolutely real) risks and problems of labelling and essentialism, and to providing categories for a better and more precise understanding of vulnerability itself. However, as some scholars rightly point out, there is a problem of visibility, which no theoretical reformulation of the category of individual vulnerability can solve: vulnerability can even consist in such a categorical absence or denial (Zanetti 2019, 115). The single individual cannot enter the public sphere claiming politically his/her right not to be discriminated against: he/she can make this claim on an ethical or legal level, but it is only when he/she acts within a movement or group that political claims and arguments can be put forward, enabling changes to the system of power and the hierarchies and privileges of the dominant social groups. Moreover, it is only when individuals perceive themselves as part of a group that there can be substitution of a self-understanding of their own condition to the hetero-description (stigmatising, humiliating, or in any case marginalising) which is imposed from above by the dominant group (Zanetti 2019, 159).

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Accordingly, if there are sound criticisms concerning the category of vulnerable groups (I will discuss these criticisms in the third chapter), it is essential not to undermine the public visibility of vulnerable subjects, and their ability to act to protect their own interests and claims. The political dimension of vulnerability, or more precisely the shifting of the discourse on vulnerability from the ethical-legal level to the political one, requires us to take the collective dimension of vulnerability into account. Consequently, the notion of “vulnerable groups” must be carefully analysed, in order to highlight both its role also in terms of political action, and to develop solutions to the risks associated with this notion, or at least the proposals that mitigate its possible negative effects. Without, as they say, throwing the baby out with the bathwater.

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MacKinnon, Catharine A., Feminism Unmodified: Discourses on Life and Law, Harvard University Press, Cambridge, MA, 1987. Macklin, Ruth, Double Standards in Medical Research in Developing Countries, Cambridge University Press, Cambridge, 2004. Meyers, Diana T., “Self, Society, and Personal Choice”, Hypatia (1991) 6.2: 25–41. Nedelsky, Jennifer, “Reconceiving Autonomy: Sources, Thoughts, and Possibilities”, Yale Journal of Law and Feminism (1989) 25. Nussbaum, Martha C., Frontiers of Justice: Disability, Nationality, Species Membership, Harvard University Press, 2009. Nussbaum, Martha C., The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy, Cambridge University Press, 2001. Nussbaum, Martha C., The Feminist Critique of Liberalism: The Lindley Lecture, University of Kansas, Department of Philosophy, 1997. Okin, Susan Moller, Justice, Gender, and the Family, Basic Books, New York, 1989. Oshana, Marina, “Personal Autonomy and Society, The Journal of Social Philosophy (1998) 29: 81–102. Pateman, Carole, The Sexual Contract, Polity Press, Oxford, 1988. Rancière, Jacques. “The Ethical Turn of Aesthetics and Politics”, Critical Horizons (2006) 7.1: 1–20. Rawls, John, A Theory of Justice, Harvard University Press, Cambridge, MA, 1971. Raz, Joseph, The Morality of Freedom, Clarendon, Oxford, 1986. Rogers, Wendy, “Vulnerability and Bioethics”, in Catriona Mackenzie, Wendy Rogers, and Susan Dodds (eds.), Vulnerability: New Essays in Ethics and Feminist Philosophy, Oxford University Press, 2014. Rogers, Wendy, Catriona Mackenzie, and Susan Dodds, “Why Bioethics Needs a Concept of Vulnerability”, IJFAB: International Journal of Feminist Approaches to Bioethics (2012) 5.2: 11–38. Sandel, Michael, Liberalism and the Limits of Justice, Cambridge University Press, New York, 1981. Sen, Amartya, Development as Freedom, Knopf, New York, 1999. Tronto, Joan, Caring Democracy: Markets, Equality, and Justice, New York University Press, New York, 2013. Tronto, Joan, Moral Boundaries: A Political Argument for an Ethics of Care, Routledge, New York, 1993. Turner, Brian, Vulnerability and Human Rights. Vol. 1. The Pennsylvania State University Press, University Park, Pennsylvania, 2006. Young, Iris Marion, Justice and the Politics of Difference, Princeton University Press, Princeton, 1990.

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Young, Robert, Autonomy: Beyond Negative and Positive Liberty, St. Martin’s Press, New York, 1986. Zanetti, Gianfrancesco, Filosofia della vulnerabilità. Percezione, discriminazione, diritto (A Theory of Vulnerability: Perception, Discrimination, Law), Carocci, Rome, 2019.

CHAPTER 3

The Vulnerable Groups and Their Legal Value

Introduction An increasing number of international legal instruments refer to vulnerable groups—or particularly vulnerable groups—as objects of protection under the international human rights law. The relevance of vulnerable groups in international law is certainly not surprising, if only one considers that the historical root of the international human rights law stems from the systematic violation of the rights of groups of individuals during the Holocaust (Nifosi-Sutton 2017, 267). Consistently, also in subsequent treaties (both at the UN and regional level), the attention paid to the protection of vulnerable groups has been maintained: whether it is a question of protecting the rights of women, minors, ethnic groups, linguistic minorities, prisoners, persons with disabilities, migrant workers, asylum seekers, and so on, the language of rights has been repeatedly construed in the collective dimension, referring to groups of people as well as to individuals. This prominence of the notion of vulnerable groups, both in treaties and in the work of the Monitoring Bodies, underlines the importance of the group dimension in the international human rights system, and highlights three characteristics of that system. First, the protection of vulnerable groups is articulated in a flexible, multilevel system, and it is conveyed by differentiated strategies, since the group dimension can © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 F. Macioce, The Politics of Vulnerable Groups, Critical Political Theory and Radical Practice, https://doi.org/10.1007/978-3-031-07547-6_3

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neither hide, nor absorb, the need for protection of those individuals who are more vulnerable than others, or who are marked by different or additional dimensions of vulnerability. Secondly, the notion of group vulnerability is a crucial standard in the determination of international standards of protection: for instance, some protection needs can be recognised as linked to specific vulnerabilities in specific contexts, as in the case of children or of pregnant women in clinical trials. Thirdly, the reference to vulnerable groups and persons, i.e. the mention of both these dimensions of vulnerability, has now entered the international rights system as a formula that does not need, or no longer needs, any specific justification. In other words, the notion of vulnerable group has progressively increased in relevance in international law, or at least its relevance is not reducible to the international protection of minorities. In this sense, the reference to the condition of groups is also used to indicate (and protect) parts of the population that deserve specific protection, regardless of their numerical consistency; this is the case, for example, of those who are denied access to basic necessities and who find themselves in conditions of severe poverty or marginalisation (sometimes referred to as socially vulnerable groups). As we will see, such a notion is certainly not unambiguous and not clearly defined, but it has its consistency and, above all, specific applicability to guarantee effective protection to individuals and groups (Morawa 2003, 139). The purpose of this chapter is, therefore, to provide a brief description of the concept of group vulnerability in the context of international law, with reference to the United Nations system, to certain regional areas and the area of the Council of Europe.1 Specific attention will be paid to the 1 The case law of the Inter-American Court of Human Rights, where the notion of vulnerability is progressively gaining a significant space of applicability, and where it is highlighted, differently from what happens in the jurisprudence of other courts, as an anthropologically fundamental dimension, will not be analysed in these pages; on this point, and for further references, see Catanzariti, Maria Vittoria, “I volti della vulnerabilità: l’esempio della Corte Interamericana dei Diritti Umani” (The Faces of Vulnerability: The Example of the Inter-American Court of Human Rights), Ars Interpretandi (2019) 2: 95– 113; Hennebel, Ludovic, “The Inter-American Court of Human Rights: The Ambassador of Universalism”, Revue québécoise de droit international/Quebec Journal of International Law/Revista quebequense de derecho internacional (2011): 57–97. Catanzariti argues— with sound reasons—that the approach of the Inter-American Court, although similar to Fineman’s, is not entirely consistent with it, precisely because of the importance of the collective dimension in the Court’s case law: The Inter-American Court develops a notion of group vulnerability in the mentioned rulings that substantially disregards the concept

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growing importance of the notion of group vulnerability in the European Union law, especially within the “Area of Freedom, Security and Justice”. Lastly, the field of bioethics will be analysed, within which the notion of vulnerable group has been extensively used for a long time. This analysis aims to demonstrate that: (a) the notion of group vulnerability is widely used; (b) there is no precise definition of this notion in the system of international law; (c) the lack of a definition does not prevent this notion from being widely used by Courts and, therefore, from representing an effective strategy for the protection of rights; and (d) the risk of labelling which is linked to the use of such a broad notion is real, and therefore motivates the need for a more precise definition.

The Development of the Notion of Group Vulnerability in International Law As already mentioned, since its origins, the development of the international human rights system has been aware of the need to protect groups of people, as well as individuals, considered to be particularly vulnerable or deserving of special protection due to specific circumstances. The experience of Nazism and Fascism not only made it necessary to develop such a system: it had dramatically made evident how the violations of human rights did not only affect single individuals, for reasons linked to subjective circumstances, but they could affect entire groups of people. To be more precise, these violations could affect people (millions of people) because they belong to a specific group: Jews, of course, as well as Roma and Sinti, but also political opponents and gay and lesbian people. It is therefore from the very beginning of the development of the international human rights law that the collective dimension of vulnerability is affirmed: and at the same time, it is from the very beginning of this development that the notion of group vulnerability is affirmed in a not precisely defined way. To return to the above-mentioned examples, the group membership that can be identified in the case of Jews, Roma, political opponents, and gays and lesbians is very different, because it involves different levels of the individual identity: analogously, the sense of belonging that is at stake

of individual discrimination and is instead inclined to a model inspired by cultural rights in their specificity, for which the discriminatory element as a term of comparison does not assume a primary relevance (p. 108).

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in an ethnic community may be different from that which is relevant for a group of people sharing a similar sexual orientation or gender identity. The position of group vulnerability in international law depends on this origin, which at the same time gives relevance to the concept and lacks a clear definitional reference: its relevance, as a viable strategy for the protection of rights, go along with wide margins of interpretative and applicative discretion. For this reason, besides groups whose vulnerability is, if not evident, certainly very plausible (such as prisoners, children, victims of trafficking, etc.), there are others whose qualification in terms of vulnerability may arouse some surprise (members of the military and students), and others whose vulnerability results from the intersection of several elements (children victims of trafficking, transgender people in detention, etc.) (Morawa 2003, 140). Therefore, in a manner employed in many documents, the General Comment to Article 11 of the International Covenant on Economic, Social and Cultural Rights, provides a list of groups with a final clause, demonstrating that any list can only be partial and purely indicative: “Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups”.2 The Islandic Human Rights Centre provided a list of vulnerable categories and groups, that is inclusive of those that are the subject of specific protection in international law, and identified thirteen groups: “(1) women and girls; (2) children; (3) refugees; (4) internally displaced persons; (5) stateless persons; (6) national minorities; (7) indigenous peoples; (8) migrant workers; (9) disabled persons; (10) elderly persons; (11) HIV positive persons and AIDS victims; (12) Roma /Gypsies /Sinti; and (13) lesbian, gay, and transgender people”.3 Although comprehensive, this list is undoubtedly not definitive, nor does it allow the finding of a precise criterion for inclusion. From a historical point of view, the increasing relevance of the vulnerability of groups, as well as individuals, is a constant trait. It is already present in the International Convention on the Elimination of All Forms of Racial Discrimination (1965), which referred to the condition of “racial 2 CESCR, General Comment 7: The Right to Adequate Housing (Art. 11 (1)), 20 May 1997. 3 Icelandic Human Rights Centre, The Human Rights Protection of Vulnerable Groups (2009), available at http://www.humanrights.is/the-human-rights-project/humanrightsc asesandmaterials/humanrightsconceptsideasandfora/Undirflokkur/.

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or ethnic groups”4 ; and the notion became even more important with the International Covenant on Civil and Political Rights (ICCPR),5 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),6 both in 1966. The ICCPR concerns the protection of groups whose situation, with regard to the enjoyment of political and civil rights, appeared to the drafters to be particularly problematic: among these groups women are mentioned (Arts. 3, 6, 23, concerning the enjoyment of political rights, the prohibition of the application of the death penalty to pregnant women, and the guarantee of full freedom of marriage), aliens lawfully present in the territory of a State (Art. 13), persons charged with a criminal offence or imprisoned (Art. 14), children (Art. 24), and members of ethnic, linguistic, and religious minorities (Art. 27 guarantees a double level of protection, both to individual members of the group and to the group as such “to adopt measures ensuring that ethnic, linguistic and religious groups can exercise their cultural rights so as to enable their members to enjoy cultural rights on an individual basis”). In addition to these groups or categories of people explicitly mentioned in the Convention, it is however widely accepted that the Convention offers protection to the rights of any other group of people, and to members of such groups, against forms of discrimination or violation that prevent or restrict the enjoyment of the rights affirmed in the Convention itself for the reasons listed in Article 2 (Nifosi-Sutton 2017, 32). Within the Covenant on Economic, Social and Cultural Rights, the relevance of groups does not only stem from the text of the Covenant itself, especially about the status of women, minors, and (in Art. 2) with regard to any discrimination due to factors such as “race, colour, sex, language, religion, political or other opinions, national or social origin, economic status, birth or other status”. It also emerges explicitly in the work of the Committee on Economic, Social and Cultural Rights, one of the Monitoring Bodies dedicated to the implementation of the treaties. The Committee issued guidelines (in 1991 and 2008) on 4 International Convention on the Elimination of All Forms of Racial Discrimination,

Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965. 5 International Covenant on Civil and Political Rights, Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966. 6 International Covenant on Economic, Social and Cultural Rights, Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966.

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the preparation of periodic reports that States are required to submit on the measures taken and the progress made, and these texts make explicit what the Committee considers to be a priority with regard to the implementation of the treaties. In the 1991 Guidelines,7 the reference to vulnerable groups or to the condition of some categories/groups of people is explicit, especially concerning the guarantee of certain rights (food, housing, health, education): more precisely, in the case of the right to adequate food, ten specific groups are mentioned (including landless farmers, rural workers, unemployed, migrant workers, indigenous peoples, children and the elderly, etc.), and States are asked to identify vulnerable groups in relation to the enforcement of the rights covered by the Covenant. The attention paid to the vulnerability of specific groups of people is maintained also in the 2008 guidelines, even if the terminology slightly changes, with the category of vulnerability being replaced by the reference to the condition of disadvantage and marginality (“in order to ensure that economic, social and cultural rights, particularly of the most disadvantaged and marginalized groups, are not undermined”).8 Even then, however, no precise definition of such a vulnerability or group disadvantage is given, and no comprehensive list of vulnerable groups is provided (Chapman and Carbonetti 2011, 691). This ambiguity allowed the Commission to use the category of group vulnerability (or marginality) regarding groups that are very different from each other in terms of size, type, and exposure to risk. The General Comment n. 20 on non-discrimination in the enjoyment of economic, social, and cultural rights, lists, as factors of possible vulnerability, membership of a group, as well as race, colour, sex, language, religion, political opinion, ethnic or national or social origin, disability, age, family or marital status, economic and social situation.9 As one can see, these are undoubtedly factors that can determine common conditions of vulnerability, and place individuals in similar conditions of fragility: however, if in some cases it is possible to identify groups to which a given situation of vulnerability can be referred (e.g. a linguistic minority), in other cases the identification of a group 7 CESCR, E/C.12/1991/1, Guidelines at 12, ¶ 2 (b) (i). 8 CESCR, E/C.12/2008/224 March 2009, A, 3. 9 UN Committee on Economic, Social and Cultural Rights (CESCR), General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20.

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dimension appears to be much more complex, and arguable on completely different bases (e.g. people living in poverty, or elderly people). Again, the group dimension of vulnerability emerged in two more recent treaties: the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)10 and the 1989 International Convention on the Rights of the Child.11 Not only by definition is the focus of both placed on groups of people, however large they may be, but in each of these texts, the group dimension is further specified in sublevels and specific dimensions of vulnerability. Thus, for example, the Convention on the Rights of the Child not only considers children as a category (or macro-group) of vulnerable subjects, since they are exposed to exploitation, have specific health needs, and are likely to suffer violations of their rights to a greater extent than adults: it also takes the specific vulnerability of children with disabilities into account, as well as of children residing in remote areas, or living in conditions of poverty, or belonging to particular ethnic groups, basing further protection on these conditions and needs (Morawa 2003, 142). Similarly, the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families12 represented a further step in the protection of the rights and recognition of specific vulnerabilities of categories and groups of people. It recognises, at the same time, “the situation of vulnerability in which migrant workers and members of their families frequently find themselves as a result of, inter alia, their removal from their State of origin and possible difficulties related to their presence in the State of employment” (the Preamble); but it also considers relevant the specific vulnerability of migrants in conditions of irregularity, as a subgroup within the category of migrant workers (Okeowo 2007, 10; Cholewinski 1997, 148). In the same vein, the 2006 Convention on the Rights of Persons with Disabilities (UNCRPD)13

10 Convention on the Elimination of All Forms of Discrimination against Women, Adopted by General Assembly resolution 34/180 of 18 December 1979. 11 Convention on the Rights of the Child, Adopted by General Assembly resolution

44/25 of 20 November 1989. 12 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Adopted by General Assembly resolution 45/158 of 18 December 1990. 13 Convention on the Rights of Persons with Disabilities, Adopted by General Assembly resolution 61/106 of 13 December 2006.

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expresses the will to offer specific protection to persons with disabilities (who are conceptually identified as a category of persons in a similar condition of vulnerability), as victims of exclusion and discrimination processes, and often deprived of the ability to exercise their rights (Mégret 2008, 500; Harpur 2012, 2). As in the other treaties, the protection provided takes a category of people into account as a whole, but specific protections are provided for subgroups with further conditions of vulnerability: women with disabilities (Art. 6, whose condition of vulnerability is exacerbated by being exposed to “multiple discrimination”), and children with disabilities (Art. 7). It can therefore be considered that, while group vulnerability is used at the international level as an explicit or implicit standard for the recognition of a plurality of rights to different categories of people, even without a precise definition, group vulnerability depends on a plurality of factors, and the multifaceted interplay of these factors. A number of factors can thus be indicated as “sources” of vulnerability, as conditions that may determine or amplify it. These factors are linked to: (a) age, concerning minors, adolescents, the elderly; (b) gender, with reference to women, pregnant women, girls, transgender people; (c) ethnic origins; (d) living and housing conditions, with regard to native populations, rural populations, populations in remote areas and islands, people living in contexts marked by environmental disasters; (g) any other status that may affect the enjoyment of rights, such as landless persons, foreigners, refugees, asylum seekers, victims of trafficking, and so on. Of course, these are not homogeneous statuses, nor are they categories that can be compared with each other, the only common trait being an undeniable experience of oppression, limitation, or denial of rights. In other words, if vulnerability may be linked to all these situations, as well as to each of the statuses listed above, it is not at all evident to what extent these conditions of vulnerability are comparable, nor to what extent these conditions of vulnerability apply to groups, rather than to individuals, and whether such a vulnerability is similarly experienced in different contexts. Likewise, some scholars pointed out (Chapman and Carbonetti 2011, 706) that the statuses considered to be sources of group vulnerability are not homogeneous and can be distinguished in at least two main categories: permanent statuses, and conditions that are liable to change. Such a distinction does not refer to natural development, or the intrinsic contingency of human existence, but the very possibility that a given status may be modified by the subject to whom it refers, or by

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external action, and that this change constitutes an acceptable and effective means of coping with the specific condition of vulnerability. In this sense, women, young people, the elderly, people with disabilities, ethnic and religious minorities, are all examples of groups/categories linked to a status that cannot be changed. This is not because youth is a permanent status—it is not, of course—but because the vulnerability that is associated with childhood cannot be overcome simply by pushing people to grow up faster, or to wait until they become adults. Similarly, belonging to a religious minority cannot be considered a changeable status, not because one cannot change religion, but because conversion is not an acceptable way to reduce or eliminate the vulnerability of a group of people. On the contrary, a changeable status depends on modifiable social or economic factors, as in the case of migrant workers, people without a home, people without a job, or people in situations of economic poverty; in these cases, social interventions to eliminate the specific source of vulnerability (the lack of a job, or a stay permit) is certainly possible and desirable. However, even such a distinction is only of limited use, since while it helps to provide clarity, it does not allow for precise categorisation in all cases where, for example, variable and non-variable statuses overlap. Therefore, the international human rights system offers neither a comprehensive list of groups in a vulnerable condition, nor a universally applicable definition of a vulnerable group. At the same time, it provides consistent, and often hyper-specific, lists of groups to which this notion can be applied, or of groups whose vulnerability is taken into account and protected within one or more treaties. In short, such a system shows how the category of group vulnerability is an open category, thanks to the continuous reference to “other” groups whose characteristics, even if not specified, nevertheless allow the rights covered by a specific treaty to be applicable in unforeseen contexts and circumstances. Moreover, the statement and enforcement of rights for vulnerable groups always imply, by States Parties, the protection of the rights covered by the treaty both for each member of the group, and for the group qua talis, at least in some cases. Thus, for example, norms protecting the rights of indigenous peoples or ethnic groups must be applied both in respect of the group— i.e. ensuring that the group as a whole enjoys the relevant international rights—and of the members of the group. These features (openness, absence of a definition, imposition of specific burdens on States), seem to be common to most of the texts that use the category of vulnerable group, thereby determining a unitary approach, even in the absence

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of a unitary definition. This trait, as we shall see, is also typical of the “European” approach (both at the level of the Council of Europe and in European Union law) to group vulnerability.

Group Vulnerability in the Jurisprudence of the European Court of Human Rights The possibility of using the category of vulnerability with reference to groups of people has been present in the jurisprudence of the ECHR for a couple of decades. However, there again, no precise definition of a vulnerable group is given, as well as of its essential features, even if significant and non-trivial consequences are present, in terms of both application of the law and of State burdens (Pentassuglia 2012; Peroni and Timmer 2013; Ippolito and Iglesias Sanchez 2015; Torbisco Casals 2016, 395). Thus, with no legal definition of vulnerability qua talis, nor of what a vulnerable group is, the Court developed a case-by-case assessment of the conditions of vulnerability, which are experienced by different groups of people (Besson 2014). Accordingly, we find mentions to the category of vulnerability for victims of torture,14 for minors,15 for persons discriminated against because of their sex, sexual orientation, race, or ethnicity,16 for asylum seekers and applicants for international protection,17 for prisoners,18 for persons with disabilities,19 for elderly people living in nursing homes.20 Furthermore, the Court has often used the subcategory of “particularly” vulnerable groups to protect, for example, the rights of persons with HIV, or asylum seekers confined in migrant camps (Peroni and Timmer 2013). 14 Aydin v Turkey, App. No. 23178/94 (ECtHR, 25 September 1997), 103. 15 Popov v France, App. No. 39472/07 and 39474/07 (ECtHR, 19 January 2012),

91. 16 Abdulaziz, Cabales and Balkandali v United Kingdom (1985) Series A No. 94, par 70, 78; DH and Others v Czech Republic, App. No. 57325/00 (ECtHR [GC], 13 November 2007), 182. 17 MSS v Belgium and Greece, App. No. 30696/09 (ECtHR [GC], 21 January 2011),

232. 18 Aswat v United Kingdom, App. No. 17299/12 (ECtHR, 16 April 2013), 50. 19 Keenan v United Kingdom App. No. 27229/95 (ECtHR, 3 April 2001), 111;

Kiyutin v Russia, App. No. 2700/10 (ECtHR, 10 March 2011), 74. 20 Heinisch v Germany, App. No. 28274/08 (ECtHR, 21 July 2011), 71 and 82.

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Within such conceptual ambiguity, the Court recognised conditions of vulnerability either through an inductive approach, whereby specific circumstances are considered indicative of a condition of vulnerability common to a group or category of people, or through a deductive approach, whereby specific categories of people are in principle recognised as vulnerable, and therefore deserving of specific and higher standards of protection by public institutions. In the first case, for example, the vulnerability of minors or persons with psychiatric disorders,21 or even of persons deprived of liberty,22 is recognised as a condition of vulnerability inherent to these categories of people, and therefore motivates “a specific duty to take reasonable care to protect (them), and… a heightened standard of vigilance”.23 In the second perspective, the specific circumstances in which unaccompanied minors live (among the many: their young age, the condition of irregularity, the lack of resources, etc.), are such as to make these people classifiable as belonging to one of the most vulnerable categories of persons in society.24 The Court recognises that while vulnerability is an intrinsic trait of human beings, the modalities and characteristics of vulnerability may vary considerably due to the individual membership of a certain group, or specific conditions of vulnerability that are common to other people: the Roma, persons with mental disabilities, asylum seekers, persons with HIV, are examples of particularly vulnerable groups by virtue of the specific difficulties they are faced with. This is because, as the Court stated for example about the Roma,25 social, political, and legal factors make this group, in itself, particularly vulnerable, and consequently the individuals belonging to it (Truscan 2013). The Court focused its attention on the relevant social context and the historical, social, and institutional

21 Keenan v. The United Kingdom, App. No. 27229/95, 85. 22 Salman v. Turkey [GC], App. No. 21986/93, 99. 23 Keenan v. The United Kingdom, cit. 24 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, App. No. 13178/03, 12 January 2007, 55; Rahimi v Greece, App. No. 8687/08 (ECtHR, 5 April 2011), para. 86. 25 D.H. and others v. the Czech Republic (GC), App. No. 57325/00; see also Chapman v. the United Kingdom, App. No. 27238/95 No. 181: “the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases”.

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factors that must be taken into account in determining the extent and degree of protection necessary. Thus, some forms of prejudice and stigma against a certain group of people may be at the origin of specific forms of vulnerability, conditioning the enforcement and effective enjoyment of fundamental rights of those who belong to it. In D.H. and Others v. the Czech Republic, the Court held for instance that the Roma constitutes a vulnerable minority “as a result of their turbulent history and constant uprooting”.26 The specific vulnerability of a group—whatever the word “group” means—is, moreover, determined by specific experiences that must be taken into account, because no human group, although vulnerable for some reason, is vulnerable in the same way. Some groups are therefore particularly vulnerable due to a specific and particularly intense need for protection.27 As mentioned, this is a further specification, since it highlights the link between the specificity of the protection granted and the particular intensity of the need for protection of certain groups, due to their being particularly exposed to harm or at higher risk of experiencing harm. Again, it is the analysis of the specific circumstances that can determine whether, and to what extent, a given individual belongs to a particularly vulnerable group and therefore needs particularly strong protection by public authorities (Timmer 2013). In M.S.S. v. Belgium and Greece, the Court held, for example, that the living conditions of asylum seekers in Greece, their absolute dependence on institutions, the trauma and dramatic experiences of their migration, as well as the structural weaknesses of the Greek refugee reception system, were sufficient reasons to consider them as particularly vulnerable, and therefore deserving of particularly strong protection by public authorities.28 The absence of a definition of group vulnerability, therefore, does not prevent a sufficiently precise identification of the factors determining such 26 D.H. and others v. the Czech Republic, cit., no. 182: “Roma have become a specific type of disadvantaged and vulnerable minority… they therefore require special protection”. 27 Alajos Kiss v. Hungary, App. No. 38832/06, No. 42: “if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, … then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question”. 28 M.S.S. v. Belgium and Greece, App. No. 30696/09, No. 232: “the Court must take into account that the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously”.

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a condition of vulnerability. These include, first and foremost, a “history” of prejudice and social stigma linked to the identity and characteristics of a specific group of people (Peroni and Timmer 2013, 1065), or a tradition of exclusion and social marginality (Truscan 2013, 75). In this sense, the Roma are considered vulnerable, precisely because of the prejudice to which these communities have long been subjected throughout Europe, and which still affects the lives of the people who belong to them and the enjoyment of rights, such as the right to education, housing, health, etc.29 Similarly, people with disabilities are considered vulnerable, because of the age-old tradition of marginalisation and consequent social exclusion to which they have been victims.30 A group, in other words, can be considered vulnerable because of the history of discrimination and prejudice that produced such a vulnerability, not only de facto, favouring conditions of social marginality, but in a certain way also de jure, since this very same history has given rise to norms and policies that actualise this prejudice, and therefore deny or limit the rights of these persons: “The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs”.31 Deprivation of material resources and social or economic disadvantage—no matter how rooted in a history of marginalisation—are other factors that may lead to the recognition of a condition of group vulnerability (Peroni and Timmer 2013, 1067). In Yordanova v. Bulgaria,32 the aspect which has been considered relevant by the Court, and so capable of determining a situation of vulnerability for a Roma community forced to 29 D.H. and others v. the Czech Republic (GC), App. No. 57325/00, 47 Eur. H.R. Rep. 3, 182 (2007); Oršuš and Others v. Croatia (GC), App. No. 15766/03, 52 Eur. H.R. Rep. 7, 147 (2010). 30 Alajos Kiss v. Hungary, App. No. 38832/06, May 20, 2010, 42. 31 Alajos Kiss v. Hungary, App. No. 38832/06, May 20, 2010, 42. For this reason,

i.e. because of the presence of a history of prejudice that disregards the characteristics of the individual and hinges, predominantly, on the group to which that person belongs or with which he or she is socially identified, the court has qualified HIV-infected persons as belonging to a particularly vulnerable group: Kiyutin v. Russia, App. No. 2700/10, ECtHR 10 March 2011; I.B. v. Greece, App. No. 552/10, ECtHR 3 October 2013. Greece, App. No. 552/10, ECtHR 3 October 2013. 32 Yordanova v. Bulgaria, App. No. 25446/06, 24 April 2012.

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abandon their homes in a settlement (illegal, but tolerated for decades) in Sofia, was not the “history” of prejudice or marginalisation of that community, but more directly the condition of material deprivation and the absence of resources that characterised the group (“the applicants’ situation as an outcast community and one of the socially disadvantaged groups”). In this case, in short, group vulnerability depends on a condition of material deprivation that affects that particular social group as a whole, without analysing (somewhat surprisingly, in fact) the link between conditions of material deprivation and prejudice (Peroni and Timmer 2013, 1068). Again, a factor which in the ECHR case law is often linked to conditions of vulnerability for categories of people, and which therefore allows the ECHR to label a group as vulnerable, is the relationship of dependence and control by public authorities. In particular, the condition of dependence has been considered as a source of vulnerability for incarcerated prisoners (Livingstone 2000; Foster 2015)—who constitute one of the groups most often qualified in terms of vulnerability,33 also because of their limited access to medical assistance,34 the limitations in private and family life, or the isolation regime to which they may be subjected35 — or for persons subjected to criminal proceedings.36 However, only in some cases the Court gives reasons why the category of vulnerability may apply to certain categories of persons (e.g. in Salduz v. Turkey), while in most decisions such a category is somehow presupposed (according to the deductive approach previously described). Finally—and still in a deductive fashion—the Court recognises as vulnerable certain groups or categories of people by acknowledging that condition according to international legal instruments. This is the case, for example, for women who are victims of domestic violence, whom 33 Denis Vasilyev v. Russia, App. No. 32704/04, ECtHR 17 December 2009. 34 Wenerski v. Poland, App. No. 44369/02, ECtHR 20 January 2009. 35 Popov v. Russia, App. No. 26853/04, ECtHR 13 July 2006, 247: “The applicant’s position might be particularly vulnerable when he is held in custody with limited contacts with his family or the outside world”; Cotle¸t v. Romania, No. 38565/97, 3 June 2003, § 71. 36 Salduz v. Turkey, App. No. 36391/02, ECtHR 27 November 2008, 54: “an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence”.

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the Court recognised as vulnerable according to the United Nations Declaration on the Elimination of Violence against Women,37 for unaccompanied minors, whose need for specific protection in Popov v. France was also deduced with reference to the Directive 2003/9/EC of 27 January 2003,38 or for members of the Ashraf minority in Somalia, whose specific vulnerability as a group has been deduced according to UNHCR reports and documents in which this minority is qualified as one of the most vulnerable in the country.39 In conclusion, in the case law of the ECHR, the reference to vulnerability, and to group vulnerability, is used in an ambiguous and changing way, being constructed from time to time in relation to the vulnerability of individuals, persons, groups, categories, minorities, or situations, and without any precise distinction between individual and collective vulnerability (Besson 2014, 69). It is not explicit, nor plainly discernible from the Court’s case law, when vulnerability must be referred to the characteristics (physical, existential, relational, etc.) of an individual, when it can be predicated of a category of people to which the individual is merely assimilated, and when it depends on the belonging to a certain group. This is the reason why vulnerability is referred to natural elements common to more or less broad categories of people (age, gender, disability, pregnancy), to extrinsic circumstances (the condition of being deprived of liberty, the position in the labour market, the experience of migration), to combinations of natural and social factors (e.g. age of minority in the migration), to more or less explicit identity factors (ethnicity, religion, belonging to linguistic minorities), and so on. The only advantage is that such an ambiguity allowed the Court to include different groups and categories in the category of vulnerable groups, and to grant them the enhanced protection that follows, when necessary.

37 Eremia v. The Republic of Moldova, App. No. 3564/11, ECtHR 28 May 2013, 36–37. 38 Article 17 of the Directive states that “Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care”. 39 Salah Sheekh v. the Netherlands, App. No. 1948/04 ECtHR 11 January 2007, 103

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Greater uniformity may be found on the side of the functions performed by the reference to vulnerability. These functions can be of three types: to identify groups deserving protection against discriminatory policies and norms; to determine positive duties of protection in specific areas, such as the prohibition of torture and slavery, the protection of liberty and security, the freedom of association and assembly, etc.; to determine a stricter standard for the definition of inhuman or degrading treatment (Besson 2014, 73). Finally, on a procedural level, the Court uses the category of vulnerability to broaden or facilitate the admissibility of individual complaints, to reduce the margin of appreciation of States, or to justify reversing the burden of proof (Besson 2014, 75): therefore, once again, the fact that a notion is ambiguous does not mean that it is useless.

Group Vulnerability in EU Law Group vulnerability, although rarely used as a specific notion and a legal criterion, is present in many areas of EU law, both concerning certain categories of individuals (such as workers and migrant workers, for example in the regulation concerning freedom of movement) and in the perspective of anti-discrimination law (Ippolito and Sanchez 2015, 4). In more recent years, the impact of EU law on the condition of vulnerable groups has become more incisive, especially thanks to the introduction of competencies in the Area of Freedom, Security and Justice. And yet, the increased relevance and effective use of the category of vulnerable groups has not been accompanied by an equally solid definition or conceptual clarification; thus, for example, in Directive 2013/33/EU laying down standards for the reception of applicants for international protection, explicit reference is made to the position of vulnerable people (apparently placing vulnerability at the individual level), but at the same time, people are classified into groups (again, very different to each other): “Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation” (Art. 21). By using a conceptual frame proposed by Ippolito and Sanchez,

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it is possible to find in EU law a reference to “inherent” or intrinsic group vulnerability (i.e. linked to innate or physical characteristics due to which certain categories of people are perceived as vulnerable), as well as situational vulnerabilities linked to the minority status within a given society (related to language, religion, ethnicity, or sexual orientation), to legal status (awarded by states to foreigners, to persons deprived of nationality, to asylum seekers and applicants for international protection), to victimhood and dependent on intentional conduct leading to abuse and exploitation (minors and women in contexts of economic poverty, armed conflicts, mass violence, or environmental disasters; victims of terrorism; victims of trafficking; etc.), to contingent factors (people in conditions of social exclusion, people deprived of liberty, undocumented migrants) (Ippolito and Sanchez 2015, 7–20). Although the notion of vulnerability emerges with particular force in some areas (e.g. in judicial cooperation in civil and criminal matters, and asylum and immigration cooperation), it appears rather as a transversal instrument, endowed with certain common features and with significant legal effects. Among the common features, or more precisely among the elements that constitute the background for the different conditions of vulnerability, there is the continuous tension between the collective and the individual dimension; a multi-layered understanding of vulnerability, as a result of multiple and intertwining dimensions; the emphasis on the resilience of vulnerable individuals and groups; and the magnifying effect on general standards of protection, or procedural obligation upon state parties (Ippolito 2019). Concerning the tension between the collective and individual dimension, EU law proceeds in a similar way to what has already been described for other areas; with the difference, perhaps, that the general tendency here is towards categorisation, and a group-based approach, while the individual dimension is addressed by referring to further elements, to infra-group differences, and specific circumstances. Thus, for example, the vulnerability of minors (Ippolito 2015, 23) is then specified through reference to factors that aggravate and shape the condition of vulnerability (migration, experiences of violence and abuse, etc.), exposing the need to consider, at the same time, the circumstances characterising the vulnerability of the particular minor.40 40 See CJEU, Case C-105/03, Pupino, judgement of 16 June 2005, ECLI:EU:C:2005:386, par. 53: “independently of whether a victim’s minority is

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Vulnerability is also understood as a multi-layered dimension, in which several factors and dimensions of weakness, exposure, and fragility can combine to define a specific condition of vulnerability. For example, in some documents vulnerability is excluded as a category inherent to groups of people,41 but it is reiterated—in a logic that is in any case collective— that several factors can determine the vulnerability of certain groups,42 and that they should therefore be considered in order to model different strategies of intervention and protection, rather than a one size fits all approach. Some scholars (Ippolito 2019, 8) argue that this multifactorial dimension of vulnerability also prevents this notion from being associated exclusively with inherent (physical or psychological) characteristics, which, however contingent, could lead to stereotypical or paternalistic perspectives. On the contrary, the multifactorial dimension requires consideration of both intrinsic and circumstantial elements, which differ from case to case, owing to the specific vulnerability of the person and the lack of resources (in terms of rights, or services, for example) which are up to the State to provide. Finally, while the notion of vulnerability is not used in EU law to create new or specific rights, it does create both compensatory obligations towards groups, and a duty of care towards those groups that manifest intrinsic or extrinsic characteristics of vulnerability, without precluding the analysis of the concrete case in order to determine the violation of obligations under EU law. In an individual-centred perspective, therefore, even when vulnerability concerns categories and groups, it requires Member States to adequately as a general rule sufficient to classify such a victim as particularly vulnerable within the meaning of the Framework Decision, it cannot be denied that where, as in this case, young children claim to have been maltreated, and maltreated, moreover, by a teacher, those children are suitable for such classification having regard in particular to their age and to the nature and consequences of the offences of which they consider themselves to have been victims, with a view to benefiting from the specific protection required by the provisions of the Framework Decision referred to above”. 41 Resolution of the European Parliament of 12 May 2016 on the implementation of Directive 2011/36/EU of 5 April 2011 preventing and combating trafficking in human beings and protecting its victims (2015/2118(INI)) P8_TA-PROV(2016)0227, at J: “whereas gender itself does not inherently create vulnerability, and there are many contributing factors to create a situation of vulnerability for women and girls, including poverty, social exclusion, sexism and discrimination”. 42 Ibid, art. 13: “Considers that asylum seekers, refugees and migrants are particularly vulnerable to trafficking and that special attention should be given to the trafficking of women, children and other vulnerable groups”.

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take into account the special needs of vulnerable persons, for example, in determining their right to participate in proceedings to which they are a party and to a fair hearing in international protection procedures. Factors such as health conditions, past experiences of violence, sexual orientation, age, or others, are therefore elements that can be taken into account. Above all, in my view, vulnerability can be used as a criterion to construct an exceptional system of protection. In Mahdi,43 for example, the impact of vulnerability emerged with reference to the Directive 2008/115 (on common standards and procedures in Member States for returning illegally staying third-country nationals): the Court states that the Directive enables Member States to grant an autonomous residence permit or other authorisation to stay for humanitarian reasons to third-country national staying illegally on their territory. In this context, the reference to vulnerability is used as a criterion “for orienting national discretion as to a derogatory system of protection”. More recently, in a judgement on asylum and the conditions for granting subsidiary protection, the Court reiterated that when health conditions and—specifically—psychiatric disorders are at stake, “account must be taken of all the significant and irremediable consequences which would result from removal”, and stated that “specific attention must be paid to the particular vulnerability of persons whose psychological suffering, which might be aggravated by removal, has been caused by torture or inhuman or degrading treatment in their country of origin”.44 In other cases, the reference to vulnerability is used, with regard to States’ margin of discretion concerning nonrefoulement, to modulate the proportionality of national due diligence obligations (Brandl and Czeck 2015; Ippolito 2019, 14): for instance, health conditions are a vulnerability factor that must be taken into account as a circumstance capable of lowering the threshold for triggering the protection provided by Article 4 of the Charter. Thus, not only in Art. 16 of the Dublin III Regulation the right to reunification is established for cases of vulnerability related to conditions of dependence on the support and care of others, but also in Reception Condition Directive 2003/9/EC45 it is laid down as a general principle that “Member States 43 CJEU, Case C-146/14 PPU, Bashir Mohamed Ali Mahdi, 5 June 2014, ECLI:EU:C:2014:1320, para. 88. 44 CJEU Case C-353/16, MP, 24 April 2018, ECLI:EU:C:2018:276, para. 42. 45 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards

for the reception of asylum seekers.

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shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care” (Art. 17). Similarly, the Asylum Procedure Directive46 also introduces special procedural safeguards (Art. 24) for people who require special procedural guarantees as a result of torture, rape, or other serious forms of psychological, physical, or sexual violence. This system of enhanced protection and procedural safeguards, which is linked to conditions of vulnerability for certain categories of persons, or certain situations considered particularly at risk, makes vulnerability, in the context of EU law, a heuristic instrument capable of justifying derogatory solutions and tailor-made protection obligations both from a substantive and procedural point of view (Ippolito 2019, 15). A tool, however, that remains—appropriately?—largely discretionary, as it is based on a very unclear definition and classification. It is not clear which groups are to be considered vulnerable (all the lists in the legal texts have open clauses and formulas, thereby allowing for the inclusion of groups that are not expressly mentioned), nor why they are to be considered vulnerable, or what the criteria are for identifying this vulnerability (vulnerability is linked, from time to time, to conditions of material deprivation, to situations of dependence, to forms of incapacity, to contexts of social marginalisation, to experiences of exploitation and violence, and so on). Finally, it is not clear what the threshold is for considering such vulnerability worthy of special consideration, as opposed to the countless reasons and contexts of vulnerability that shape—to varying degrees—the experience of every human being.

Group Vulnerability and Bioethics Bioethics is one of the areas in which the reference to vulnerable groups emerged first, and for the longest time. Even in this field, no precise definition or clear threshold criteria are given for determining when the 46 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast).

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notion can be used, or what the specific characteristics of vulnerability are, nor in what sense it stems from a collective rather than individual dimension. However, not only is this notion widely used in legal texts and other relevant documents (guidelines, opinions, recommendations), but it has also entered the common bioethics lexicon (Ten Have 2015, 396; Thomson 2017, 1218), especially concerning consent profiles, and with specific regard to biomedical research. The notions of vulnerability and vulnerable groups are not present in the first international documents, but the aim of protecting both individuals and categories of people considered to be particularly fragile, or in need of specific forms of protection, has been perceived since the dawn of bioethics. In both the Nuremberg Code and the Declaration of Helsinki, which can rightly be considered the first international documents in the field of bioethics, a clear orientation towards establishing protection for those involved in biomedical research is present—in response to the aberrations committed during the war in the field of biomedical research—especially through the affirmation of informed consent as the first instrument aimed to protect the rights and dignity of individuals (Rogers et al. 2012, 14). This initial imprint will somehow remain in subsequent documents: the need to provide specific protections for vulnerable subjects, and for groups or categories of people considered particularly fragile, or exposed to particular risks of harm, will be continuously reaffirmed in all the documents related to biomedical research. At the same time, the identification of vulnerable subjects will continue to be imprecise, lacking a clear definition of vulnerability, and being somehow taken as an assumption not needing further explanation (Rogers 2014, 62). In this vein, vulnerability in bioethics has functioned to draw attention to higher-than-standard risks of harm, and/or lower-than-standard ability to defend oneself or cope with that risk, due to particularly harmful situations, reduced subjective capacities, or specific situations that make people unable to protect themselves. So, rationally, minors, or people with psychiatric pathologies, or patients in intensive care, are typical examples of vulnerable subjects/categories. However, it is equally clear that an intuitive or common-sense classification is not sufficient if it is followed by the imposition of specific protection burdens or reinforced guarantees (Hurst 2008).

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A first explicit reference to vulnerability, and specifically to group vulnerability, has been made in the 1979 Belmont Report,47 by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. In this document, a series of basic ethical principles are affirmed—even without any binding force—aiming at ensuring that biomedical research with human subjects is conducted in conformity with ethical standards. In the Belmont Report, vulnerability is considered with regard to three issues: that of incentives, because “inducements that would ordinarily be acceptable may become undue influences if the subject is especially vulnerable”; the balance between risk and benefit of research, because in the case of research involving “vulnerable populations” such involvement must be demonstrated as necessary in itself; finally, as a matter of justice, to prevent socio-economically disadvantaged groups from being manipulated, exploited, and unduly involved in research. In this case, a typology of vulnerable groups is also offered (Part C 3): “Certain groups, such as racial minorities, the economically disadvantaged, the very sick, and the institutionalised may continually be sought as research subjects, owing to their ready availability in settings where research is conducted. Given their dependent status and their frequently compromised capacity for free consent, they should be protected against the danger of being involved in research solely for administrative convenience, or because they are easy to manipulate as a result of their illness or socioeconomic condition”. The approach of the Belmont Report, however, is indicative of a trend common to all subsequent hard and soft law instruments, which leave unresolved the ambiguity between vulnerability as a general condition of subjects participating in biomedical research as well as that of patients in clinical contexts, and vulnerability as a specific condition of specific groups or categories of people, which are particularly exposed to risks of exploitation, manipulation, injustice, and harm. A few years later, in fact, in the 1982 International Guidelines for Biomedical Research Involving Human Subjects adopted by CIOMS, vulnerability is more explicitly taken into account as a relevant factor in biomedical research, but it is only with the 2002 version that a more precise definition of vulnerability is given, in terms of the incapacity of 47 National Commission for the Protection of Human Subjects of Biomedical and Behavior Research, The Belmont Report (1979), available at https://www.hhs.gov/ohrp/ regulations-and-policy/belmont-report/index.html (accessed 29 December 2021).

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some subjects to protect their own interests (Van Delden 2017, 135): “Vulnerable persons are those who are relatively (or absolutely) incapable of protecting their own interests. More formally, they may have insufficient power, intelligence, education, resources, strength or other needed attributes to protect their own interests”.48 What is relevant for the present analysis, however, is that at the same time the CIOMS guidelines depict vulnerability as a general condition of lack of power (the inability to protect one’s interests), which may be determined by multiple factors, and as a specific condition of some groups or categories of people, in a supra-individual perspective. Thus, in addition to minors (Guideline 14) and people incapable of expressing valid consent due to mental or behavioural disorders (Guideline 15), a list of vulnerable groups is offered in the Commentary to Guideline 15: persons in subordinate positions in highly hierarchical relationships (“Examples of such groups are medical and nursing students, subordinate hospital and laboratory personnel, employees of pharmaceutical companies, and members of the armed forces or police”), institutionalised persons (“residents of nursing homes, mental institutions, and prisons”), as well as people receiving welfare benefits; people in poverty or without employment; people who perceive participation as the only means of accessing medical care; people belonging to some ethnic and racial minorities; homeless persons, nomads, refugees, or displaced persons; people living with disabilities; people with incurable or stigmatised conditions or diseases; individuals who are politically powerless; and members of communities unfamiliar with modern medical concepts. Evidently, such a list has no internal homogeneity, but it can work as an example of situations in which the lack of power and the limited capacity to protect one’s interests become particularly relevant. A detailed list of conditions in which the risk of harm is particularly high and significant is hard to be found in other international documents. On the contrary, criticisms have been directed over the years at this categorising approach—which will be discussed in the next chapter— frustrating any explicit mention of vulnerable groups (Kipnis 2001; 2003, 107; Iltis 2009; Luna 2009). And so, the UNESCO Declaration on Bioethics and Human Rights links vulnerability to the human condition (Art. 8), and mentions group vulnerability simply regarding “groups

48 CIOMS-OMS Guidelines 2002, Commentary on Guideline 13.

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of special vulnerability” or to groups that are made vulnerable due to different factors (“groups… rendered vulnerable by disease or disability or other personal, societal or environmental conditions”).49 Analogously, the 2013 Helsinki Declaration only makes a generic reference to vulnerable groups (“Some groups and individuals are particularly vulnerable and may have an increased likelihood of being wronged or of incurring additional harm”).50 However, the reference to group vulnerability did not disappear from international instruments and documents in the field of bioethics, testifying to its continuing descriptive capacity, or at least to its ability to label situations requiring specific protection. In EU law, for example, the field of biomedical research—as well as that of consumer protection (Malgieri and Niklas 2020)—is one of those in which reference to group vulnerability is most frequently used. In the 2014 Clinical Trials Regulation,51 Article 10 (titled “Specific considerations for vulnerable populations”) states that specific cautions and procedures are necessary for authorisation to enrol minors in a clinical trial, as well as incapacitated persons, pregnant and breastfeeding women, or other groups or subgroups. Even if the Article does not specify what these specific considerations or precautions consist of, such vulnerability seems, on the one hand, to be linked to reduced decision-making capacity, in line with the Oviedo Convention on Human Rights and Biomedicine and the Additional Protocol on Biomedical Research,52 and on the other hand to an increased risk of harm or injury. In this sense, Articles 31–33 of the Regulation lay down particularly stringent rules for the acquisition of free and informed consent by minors, incapacitated persons (which are conditions of vulnerability depending on a reduced capacity to protect one’s own interests), or by pregnant and 49 https://unesdoc.unesco.org/ark:/48223/pf0000146180. 50 https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-

for-medical-research-involving-human-subjects/. 51 Regulation (EU) No 536/2014 of the European Parliament and of the Council of 16 April 2014 on Clinical Trials on Medicinal Products for Human Use, and Repealing Directive 2001/20/EC Text with EEA Relevance. 52 Council of Europe, Convention for the protection of human rights and the dignity of human beings with regard to the application of biology and medicine. Oviedo: 1997; ETS No. 164. Council of Europe. Additional Protocol to the Convention on Human Rights and Biomedicine, concerning biomedical research. Strasbourg 2005. CETS No. 195.

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breastfeeding women (a vulnerability which is linked to a situation of increased risk), as well as, under Article 34, for other people who find themselves in hierarchical settings that are likely to affect their ability to give free consent (again, a vulnerability which depends on the reduced capacity to provide free consent). In the same vein, Recital 15 refers to the vulnerability of “frail or older people, people suffering from multiple chronic conditions” encouraging the inclusion of these categories in research to limit their vulnerability (Gennet et al. 2015, 929), and Recital 31 refers to the belonging to an “economically or socially disadvantaged group”, i.e. a context where vulnerability can result in manipulation and exploitation. The case of pregnant women is exemplary in this respect. On the one hand, they are considered to be vulnerable subjects par excellence, due to the increased exposure to risk that characterises their condition: indeed, in a sense, they are considered to be a vulnerable group, whose vulnerability does not depend on individual and context-related factors, but on a common and objective element. On the other hand, they are often cited as a (negative) example of a stereotypical approach to vulnerability, in which individual conditions and subjective factors are neglected in favour of a generalised reading of certain contexts (Levine et al. 2004, 44). However, it is precisely their alleged vulnerability that makes pregnant women vulnerable, for example making them under-represented in clinical trials, and thus excluding them from most of the benefits associated with clinical and pharmacological research. In other words, the alleged vulnerability of a group, aggravated by an unclear definition of vulnerability itself, ends up being a determining factor in an actual condition of vulnerability for a category of subjects, due to a lack of adequate knowledge—in comparison with the rest of the population—on the safety and efficacy of certain protocols and substances (Van der Zande et al. 2017). Thus, although vulnerability is in bioethics a notion that is sometimes ambiguous, constantly oscillating between a universal characteristic and a particular condition, and between a condition of limited capacity to express one’s free and informed consent and the increased exposure to risks and harms, vulnerability is far from being a useless notion, or a kind of mere rhetorical dressing. On the contrary: as we have seen, vulnerability is always linked to specific burdens, particular duties of protection and onerous procedures. Vulnerability (as an ontological, universal characteristic) draws attention to the asymmetry of power that inevitably characterises the clinical context and biomedical research, due to the inevitable situation of dependence and exposure in which patients

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or people enrolled in a trial find themselves vis-à-vis medical staff and research teams. In a certain sense, the entire development of the discipline of consent (Faden and Beauchamp 1986; Engelhardt 1996, 303; Eyal 2019), at least within the liberal model, has as its primary objective the guarantee of the autonomy of the individual and limitation of vulnerability factors, at least in the perspective of the reduced capacity to decide for oneself: the growing centrality of informed consent aims to rebalance this asymmetry between doctors or researchers, and patients or participants in a trial (Andorno 2016, 259). As some scholars correctly pointed out (Reich 2002; Rogers 2014, 76), the enduring relevance of vulnerability depends on the fact that most of the key principles of bioethics, or at least those that have been recognised as such (the principle of autonomy, beneficence, and non-maleficence), are in one way or another rooted in the vulnerability of the human being, and in its capacity to cope with risks. Indeed, it is interesting to notice that in the Barcelona Declaration on Policy Proposals to the European Commission on Basic Ethical Principles in Bioethics and Biolaw (adopted in November 1998 by Partners in the BIOMED II Project), vulnerability is indicated in itself as a fundamental bioethical principle, alongside autonomy, integrity, and dignity (Kemp and Dahl Rendtorff 2008). However, it should be emphasised that in the Report concerning the Declaration, vulnerability is not simply indicated as an inherent characteristic of the human being (“the condition of all life as able to be hurt, wounded and killed”), but is understood as common to all forms of life (“concerns animals and all self-organising life in the world”), and grounds a social responsibility towards life as vulnerable, e.g. by imposing limits on experimentation, and the right to receive the assistance necessary to realise its potential.53 It is precisely for this reason that the ambiguity surrounding the definition of vulnerability (ranging from humans to nonhuman animals, from individuals to groups, from contingent factors to intrinsic traits) in the panorama of international instruments is problematic: it risks hindering effective policies and normative choices, as well as the development of responses proportionate to the conditions of vulnerability in which people find themselves, both as individuals and as members of groups. 53 Final Report to the Commission on the Project Basic Ethical Principles in Bioethics and Biolaw, 1995–1998, accessible at: http://cometc.unibuc.ro/reglementari/Basic-Eth ical-Principles.pdf.

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References Andorno, Roberto, “Is Vulnerability the Foundation of Human Rights?”, in Aniceto Masferrer and Emilio García-Sánchez (eds.), Human Dignity of the Vulnerable in the Age of Rights, Springer, Cham, 2016. Besson, Samantha, “La vulnérabilité et la structure des droits de l’homme. L’exemple de la jurisprudence de la Cour européenne des droits de l’homme”, in Laurence Burgorgue-Larsen (ed.), La vulnérabilité par les juges en Europe, Éditions Pedone, Paris, 2014. Brandl, Ulrike and Philip Czeck, “General and Specific Vulnerability of Protection-Seekers in the EU: Is There an Adequate Response to Their Needs?”, in Francesca Ippolito and Sara Iglesias Sanchez (eds.), Protecting Vulnerable Groups: The European Human Rights Framework, cit., pp. 249– 250. Catanzariti, Maria Vittoria, “I volti della vulnerabilità: l’esempio della Corte Interamericana dei Diritti Umani” (The Faces of Vulnerability: The Example of the Inter-American Court of Human Rights), Ars Interpretandi (2019) 2: 95–113. Chapman, Audrey R., and Benjamin Carbonetti, “Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights”, Human Rights Quarterly (2011), 33.3: 682. Cholewinski, Ryszard, and Ryszard Ignacy Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, Cambridge University Press, Cambridge, 1997. Engelhardt, Hans T., The Foundations of Bioethics, Oxford University Press, New York, 1996. Eyal, Nir, “Informed Consent”, in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Spring 2019 Edition), at: https://plato.stanford. edu/archives/spr2019/entries/informed-consent/. Faden, Ruth R., and Tom L. Beauchamp, A History and Theory of Informed Consent, Oxford University Press, New York, 1986. Foster, Steve, “The Effective Supervision of European Prison Conditions”, in Francesca Ippolito and Sara Iglesias Sanchez (eds.), Protecting Vulnerable Groups: The European Human Rights Framework, Bloomsbury Publishing, London, 2015. Gennet, Éloïse, Roberto Andorno, and Bernice Elger, “Does the New EU Regulation on Clinical Trials Adequately Protect Vulnerable Research Participants?”, Health Policy (2015) 119.7: 929. Harpur, Paul, “Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities”, Disability and Society (2012) 27.1: 1–14.

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Hennebel, Ludovic, “The Inter-American Court of Human Rights: The Ambassador of Universalism”, Revue québécoise de droit international/Quebec Journal of International Law/Revista quebequense de derecho internacional (2011): 57–97. Hurst, Samia A., “Vulnerability in Research and Health Care; Describing the Elephant in the Room?”, Bioethics (2008) 22.4: 191–202. Iltis, Ana S. “Introduction: Vulnerability in Biomedical Research”, Journal of Law, Medicine & Ethics, (2009), 37.1: 6–11. Ippolito, Francesca, “(De)Constructing Children’s Vulnerability Under European Law”, in Francesca Ippolito and Sara Iglesias Sanchez (eds.), Protecting Vulnerable Groups: The European Human Rights Framework, Bloomsbury Publishing, London, 2015. Ippolito, Francesca, “Vulnerability as a Normative Argument for Accommodating ‘Justice’ Within the AFSJ”, European Law Journal, (2019) 25.6: 1–17. Ippolito, Francesca, and Sara Iglesias Sanchez, eds., Protecting Vulnerable Groups: The European Human Rights Framework, Bloomsbury Publishing, London, 2015. Kemp, Peter, and Jacob Dahl Rendtorff, “The Barcelona Declaration: Towards an Integrated Approach to Basic Ethical Principles”, Synthesis Philosophica (2008) 23.2: 239–251. Kipnis, Kenneth, “Seven Vulnerabilities in the Paediatric Research Subject”, Theoretical Medicine and Bioethics (2003) 24.2: 107–120. Kipnis, Kenneth, Vulnerability in Research Subjects: A Bioethical Taxonomy (Research Involving Human Participants V2), Ethical and Policy Issues in Research Involving Human Participants, Commissioned Papers and Staff Analysis, National Bioethics Advisory Commission (NBAC), vol. 2. Bethesda, MD, 2001. Levine, Carol et al., “The Limitations of ‘Vulnerability’ as a Protection for Human Research Participants”, American Journal of Bioethics (2004) 4: 44–49. Livingstone, Stephen, “Prisoners’ Rights in the Context of the European Convention on Human Rights”, Punishment & Society (2000) 2.3: 309–324. Luna, Florencia, “Elucidating the Concept of Vulnerability: Layers Not Labels”, IJFAB: International Journal of Feminist Approaches to Bioethics (2009) 2.1: 121–139. Malgieri, Gianclaudio, and J˛edrzej Niklas, “Vulnerable Data Subjects”, Computer Law & Security Review (2020) 37: 105415. Mégret, Frédéric, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?”, Human Rights Quarterly (2008) 30.2: 494–516.

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Morawa, Alexander H.E., “Vulnerability as a Concept of International Human Rights Law”, Journal of International Relations and Development (2003) 6.2: 139–155. Nifosi-Sutton, Ingrid, The Protection of Vulnerable Groups Under International Human Rights Law, Routledge, Oxon and New York, 2017. Okeowo, Demola, “Migrant Workers, Where Lies Their Haven Under the United Nations’ Migrant Workers’ Convention?”, 2007, p. 10, available at http://ssrn.com/abstract=1043682 (accessed 10 December 2021). Pentassuglia, Gaetano, “The Strasbourg Court and Minority Groups: Shooting in the Dark or a New Interpretive Ethos?”, International Journal on Minority and Group Rights (2012) 19: 1–23. Peroni, Lourdes, and Alexandra Timmer “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law”, International Journal of Constitutional Law (2013) 11:4: 1056–1085. Reich, Warren, “Taking Care of the Vulnerable: Meeting-Point for Secular and Religious Ethics in a Pluralistic World: Lecture in Honour of the Dalai Lama”, Annals of Religious Studies (2002) 3: 71–86. Rogers, Wendy, Catriona Mackenzie, and Susan Dodds, “Why Bioethics Needs a Concept of Vulnerability”, IJFAB: International Journal of Feminist Approaches to Bioethics (2012) 5.2: 11–38, https://doi.org/10.3138/ijfab. 5.2.11. Rogers, Wendy, “Vulnerability and Bioethics”, Vulnerability: New Essays in Ethics and Feminist Philosophy (2014): 60–87. Ten Have, Henk, “Respect for Human Vulnerability: The Emergence of a New Principle in Bioethics”, Bioethical Inquiry (2015) 12: 395–408. Thomson, Michael, “Bioethics & Vulnerability: Recasting the Objects of Ethical Concern”, Emory Law Journal (2017) 67: 1207. Timmer, Alexandra, “A Quiet Revolution: Vulnerability in the European Court of Human Rights”, in Martha Albertson Fineman, ed., Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, Ashgate Publishing, 2013. Torbisco Casals, Neus, “Multiculturalism, Identity Claims, and Human Rights: From Politics to Courts”, The Law & Ethics of Human Rights (2016) 10:2: 367–404. Truscan, Ivona, “Considerations of Vulnerability: From Principles to Action in the Case Law of the European Court of Human Rights”, Retfærd: Nordic Journal of Law and Justice (2013) 142.3: 64–83. van Delden, Johannes J.M., and Rieke van der Graaf, “Revised CIOMS International Ethical Guidelines for Health-Related Research Involving Humans”, JAMA (2017) 317.2: 135–136. Van der Zande, Indira S., et al., “Vulnerability of Pregnant Women in Clinical Research”, Journal of Medical Ethics (2017), 43.10: 657–663.

CHAPTER 4

Towards a Theory of Group Vulnerability

Introduction The extensive use of the category of group vulnerability, which we analysed in the previous chapter, proves that the reference to groups is central to public discourse. This is true both when it comes to allocating resources, enforcing rights, or establishing additional burdens and specific forms of protection, and when individuals represent themselves as groups—associations, movements, lobbies, or others—entering the public scene and playing as counterparts to a system that is, to a large extent, at the origin of vulnerability itself. The constitution of “subordinate” people into “counterparts of the public discourse”, to use Fraser’s words (Fraser 1990, 68), is indeed crucial because it uncovers what is hidden, promotes awareness in vulnerable subjects and public opinion, highlights people’s needs and interests, and bolsters claims to reduce vulnerability. At the same time, it requires the construction and consolidation of public practices and forms of activism directed outwards, aimed at eradicating the privileges of dominant social groups. These objectives, in other words, shift the focus of the vulnerability discourse. While the main theories of vulnerability, which we analysed in chapter one, focus on individuals, these practices of contestation and mobilisation on the public stage emphasise the action of groups, rather than individuals.

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Such a shift doesn’t stem from the mere addition of individual experiences to gain greater weight in the public debate, but it requires a theoretical transfer of the discourse on vulnerability from the purely individual to the collective dimension. What is politically relevant is not simply that many individuals experience conditions of vulnerability, but that situations of vulnerability due to similar factors, or to the operation of the same systems (which are social, cultural, political, and economic), are experienced by entire groups of people, even though these people are distinct from each other in any other respects. At the same time, the questions raised by theories of vulnerability must prove capable of supporting arguments on the public arena, of claiming spheres of power as well as a different distribution of power itself, and of articulating dissent. To this end, the simple analysis of vulnerability as a universal human condition, or as a differential condition of some subjects due to their social positioning, their resources and relational systems, may not be sufficient. There is no homophobia if “gays” do not exist (Zanetti 2019, 115), there is no gender discrimination if “women” do not exist, and there is no xenophobia if “immigrants” do not exist, and so on: the denial of the group dimension implies that the vulnerability experienced by a subject can be traced, and perhaps reduced, to a merely individual question. There is no longer hatred of foreigners, and discrimination against migrants, there are only specific situations in which single migrants have been treated differently, or deprived of what they deserve. However much this treatment may be blamed or sanctioned, the individual case will remain confined to the sphere of ethics or—sometimes—of law (if the person at stake succeeds in asserting his/her rights in court, and to the extent these rights are already recognised, and it is possible to demonstrate their actual violation), without being perceived as a political issue, i.e. related to power relations, to models and structures of social relations, to systems of domination, subordination, and exclusion. As I mentioned in the first chapter, this shift from the individual dimension of vulnerability to the collective dimension is highly problematic, thus being the object of criticisms, from a theoretical point of view. The object of this chapter is therefore to analyse these criticisms, and to identify possible ways out: after reconstructing the main criticisms addressed to the notion of group vulnerability, and analysing its merits and limitations, I will present some arguments in support of the use of this notion, and some hypotheses for a better and more rigorous formulation. If the notion of group vulnerability is as much used (in international treaties and

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ECHR jurisprudence, for example) as it is scarcely theorised, it is appropriate to identify more precise defining criteria, and to clarify within what limits one can speak of group vulnerability, and with what consequences.

The Challenges of the Concept of the Vulnerable Group The criticisms to both the concept and use of the notion of vulnerable groups are well known and undoubtedly based on sound arguments. It has been argued that the notion of vulnerable groups is both theoretically weak and politically dangerous: the use of the notion of vulnerable groups, and the attempt to distinguish such groups based on some kind of disadvantage in society, is oversimplifying and coming from an essentialist perspective, thereby resulting (politically) in stigmatisation, or victimhood (Fineman 2010, 266). More precisely, from a theoretical point of view, the critique of the notion of vulnerable groups can be traced back to the more general critique of any essentialist perspective. From this point of view, essentialism is understood as a theoretical paradigm according to which certain characteristics of a specific object are taken as necessary (in the sense of non-contingent) properties of that object, such as to explain its functioning, behaviour, manifestations, as well as to represent an element of its identity (Witt 1995). To say, for example, that women, gays, or immigrants are vulnerable because they are victims of discrimination and/or marginalisation, would be like saying that such a condition is a necessary characteristic, which explains practices, claims, experiences, narratives, and which in a certain way identifies the subjects that belong to this group, distinguishing them from the others, i.e. from all those who do not belong to the group. Critics reasonably highlight that even if discrimination is effective, an essentialist perspective superimposes the description of certain characteristics—albeit present—on the understanding of the complexity of social phenomena and individual lives. Thus, for example, if it is true that immigrants are victims of discrimination processes, it is not true that all migrants experience this discrimination (the difference between a highly skilled migrant and a migrant in conditions of economic deprivation or lacking particular skills is well known), nor is it true that all of them experience discrimination in the same way or at the same intensity.

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With specific reference to the condition of migrants, for example, Baumann (1996) criticised a kind of ethno-reductionism in many multicultural perspectives, which, although oriented towards the description of processes of marginalisation or discrimination in a given context, are based on a division into static ethno-religious groups (e.g. Sikhs, Hindus, Muslims, Afro-Caribbeans, and whites); a division that, precisely, overlooks distinctions between regions of the Indian subcontinent, the particular context of origin, the generation to which one belongs, the social status, and so on, superimposing a single characteristic considered essential and identifiable on how each person constructs and reconstructs his or her identity through multiple categories. The anti-essentialist critique does not focus on a lack of empirical accuracy: what is at stake is not whether there are exceptions to the essentialist description of a certain category or class of individuals, which every theory is ready to admit. The point is, precisely, that such situations are perceived as exceptions to a rule that is supposed to capture the identity of a given group or category, which therefore continues to stand as a paradigm for understanding the condition of a certain number of individuals. The vulnerability of a group emerges as otherness against a background that, intentionally or not, is assumed as paradigmatic, and as the standard for normality: if we say that pregnant women, or people in prison, are vulnerable groups in the context of clinical trials, at the same time we point out that the people belonging to these groups display negative or deficient characteristics with respect to others, to other people compared to which such groups are less capable, less resilient, less able to cope with risks, and so on. And if a specific woman, or a specific detained person, is not actually vulnerable (because of her personal, material, relational resources), she is easily dismissed as the exception that confirms the rule—that all other people in the same category are vulnerable. On the one hand, human complexity and individual differences are not grasped by a reductionist approach, which is inevitably linked to the definition of groups based on a specific trait (ethnicity, gender identity, sexual orientation, state of pregnancy, or other personal characteristics), so that the very desire to identify groups turns out to be founded on unrealistic claims to homogeneity. On the other hand, through this approach, the vulnerability of each individual—which depends on the overlap of multiple conditions and factors—is to some extent overshadowed by the vulnerability of the group as a whole, which captures only one aspect of this complexity (Luna 2009, 123; Levine et al. 2004, 47). As Baer argues, “When we do that,

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we abandon individual human beings at the steps of the ivory tower”. People who struggle to be recognised, and who oppose forms of oppression and violence, are transformed into larger groups, beliefs, and issues that eventually absorb them (Baer 2013, 73). The notion of a vulnerable group is also criticised from a pragmatic point of view since it is likely to favour or reinforce exclusion and victimhood. Identity policies, or in any case the categorisation of individuals within groups identified around certain traits or conditions of vulnerability, often function as real barriers within processes of construction of otherness (Brubaker 2006). These processes function first of all outwards, consolidating conditions of marginalisation and victimisation of group members, who are not recognised as having sufficient agency, competence, rationality, or autonomy, precisely because they belong to a given group, and regardless of their subjective competencies. But they also function internally, increasing the vulnerability of subgroups or individuals within the larger group, as in the case of internal minorities. Concerning the first aspect, this is the case of policies and norms that, while identify and classify a group as vulnerable, and therefore, for example, as recipients of differential treatments or additional protection, reinforce stereotypes that depict individuals as incapable, and activate paternalistic mechanisms. Minors, for example, are regarded as unable and incapable, irrespective of their specific capacities: but the same has long happened—and continues to happen frequently—for people with disabilities, in respect of whom the label of vulnerable subjects represented a powerful mechanism of marginalisation and segregation. In this vein, the victimising effect is not linked to the affirmation of a specific vulnerability, or a specific need for protection, rather to the strengthening of an “ableist” (Witt 1995; Wolbring 2008; Goodley 2014) paradigm, according to which vulnerable people are defined and classified due to an unreal (but continuously affirmed) standard of reference: the autonomous, independent, gender-neutral individual, to which the social system takes as reference. In short, the classification of a group as vulnerable, beyond the theoretical limit deriving from a reductionist approach, has the political effect of nailing those who are part of this group into a deficit position (of scarce ability, weakness, dependence, incapacity, or irrationality), keeping them distant from the standard of the universal neutral, rational, able, capable subject (Brown et al. 2017). In the second direction, i.e. inwards, the classification of a group as vulnerable—and the consequent recognition, hypothetically, of a certain

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standard of protection or differential treatment—may have the effect of exposing certain individuals within the group to additional risks. Such a question has been often highlighted in debates on multicultural policies, and concerning the position of some individuals within ethno-religious groups who are recipients of differential treatments and cultural policies: women, for example (Okin 1999), but in general all the so-called internal minorities, or those individuals who, within the group, are in a position of subordination or powerlessness (Green 1994, 71; Eisenberg and Spinner-Halev 2005; Eisenberg 2009). As A. Shachar rightly pointed out, multicultural policies can produce, as a secondary effect, the weakening of guarantees for individuals, to the extent that they shift the focus to groups. Pro-identity group policies aim at promoting equality between minority communities and the larger society. However, they unintentionally allow the rights of individuals within the group to be overshadowed, in some very so severely to nullify these rights (Shachar 2001, 2). In short, the classification of a group in terms of vulnerability not only has limitations from a theoretical point of view, but risks also being counterproductive. This is because, in relations between insiders and outsiders, it tends to consolidate an image of weakness, and therefore also a position of inferiority, subjection and dependence of the group members, unlike those who are outside the group, who, on the other hand, are represented as autonomous, independent, normal, etc. Additionally, in the relationships within the group itself, it makes internal differences even less visible and perceptible and therefore deprives of voice and agency those subjects, or subgroups, who within the vulnerable group are even more powerless and without resources than others. In other words, group vulnerability may function as a device of “disempowerment”, producing an induced vulnerability (of all the individuals ascribed to the group, or some of them), especially when, as frequently happens, the identification of the group does not depend on a context analysis but takes place in general and abstract terms (Morondo Taramundi 2018, 188). Finally, as Fineman rightly argues, the idea that there are vulnerable groups has also an effect on those who do not belong to these groups, because if on the one hand, it affirms their reduced vulnerability, on the other, it underestimates their requests for assistance, help, support, and so on (Fineman 2012, 1751). Autonomy and the flourishing of individual capacities are not inherent characteristics of the human being, in respect of which only some individuals or groups are in a weaker position: rather, they are characteristics that must be supported and cultivated, also by public institutions that

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must set them as their primary objectives, to respond to the needs and vulnerabilities of each person (Fineman 2010, 260). Not only of those labelled as vulnerable.

Developing the Notion of Group Vulnerability As already mentioned at the beginning of this chapter, all these criticisms are very reasonable, and to a large extent embraceable, both when they focus on the theoretical weakness of group vulnerability, and when they underline its political shortcomings, such as the risks related to the normative implementation of this category. Nonetheless, I argue that the notion of group vulnerability is both theoretically plausible, even if it should be elaborated in a different and non-essentialist way, and politically useful, even if the possibility of misunderstanding it in a victimising way is real. In other words, I believe that it is possible to elaborate the notion of group vulnerability, to make it—with due caution—both solid, acceptable, and politically sound, in a cost–benefit ratio that in my opinion is substantially positive. In this vein, long before we can discuss whether a group is vulnerable or not, the question is whether groups can be talked about, and in what sense (Stone 2004). The anti-essentialist critique is not just a critique directed against the attribution of a certain characteristic to a group of people (for instance, the vulnerability), but it more generally concerns the very possibility that a set of people can be understood as a group, around any characteristic (gender, race, sexual orientation, social status, etc.). From this point of view, I argue that it is not necessary to accept an essentialist postulate to implement policies aimed at categories, classes, and more or less wide groups: it is not necessary to think of “women” as a group based on a fundamental ontological feature (the famous and mysterious Ewig Weibliche of Faust) to activate feminist claims and gender equality policies, just as it is not necessary to identify an ethnic characteristic to implement policies to protect Roma people, and so on. Of course, each individual is not “only” a woman, or a person with black skin, or a person with a certain sexual orientation, or a person of a certain age: on the contrary, each person can construct and reconstruct his or her own identity through each of these factors, whose specific weight varies and is continually re-evaluated (Spelman 1988; Crenshaw 1989, 1991). However, we shall not deny the occurrence of discrimination and marginalisation that affect these people, and that policies of support or

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recognition may sometimes be necessary and appropriate. Taking this political or pragmatic point of view into account, I will discuss two possible hypotheses for using the collective dimension of vulnerability: in both these hypotheses, it is not necessary to refer to ontological traits, nor to assume a reductionist epistemology. Identity-Based Group Vulnerability From a first point of view, one can speak of a vulnerable group when the vulnerability depends to a large extent on systemic forms of violence or oppression, directed towards certain persons as members of the group. In this sense, the question of oppression, i.e. the implementation and perpetuation of a system that produces marginalisation, discrimination, power asymmetry, and exclusion, becomes central to the identification of the group as such. Oppression does not lie in the victimisation that occurs in the individual case, but in the awareness of all the members of the group that they are exposed to this risk precisely because they share (even merely in other people’s opinion) a kind of collective identity (Bartky 2015, 11). It is the systemic oppression perpetrated against a group, that creates a form of group identity, even if the group exists as such only in the eyes of others, and it is perceived only from outside as something homogeneous and internally consistent. Vulnerability is here not merely individual but depends on the functioning of power structures, cultural mechanisms, or systems of resource distribution, that create heightened conditions of vulnerability against those who are perceived as groups of individuals. In all these cases, it is possible to speak of group vulnerability, without necessarily assuming an essentialist perspective: there is no common essence, nor common identity, but one is exposed to the same gaze and the functioning of similar systems of oppression. To be more precise, essentialism is in the gaze of others, in the gaze and intentions of those who discriminate, oppress, exclude, and marginalise certain people as belonging to groups, regardless of whether these groups exist as such, or whether the victimised people perceive themselves as belonging to them. This understanding of groups can be compared to Wallerstein’s understanding of status groups, which function as ascribed labels that structure social interaction and which are independent of the willingness of subjects to refer to them as factors of identification (Wallerstein 2004). The group dimension, in this sense, is not ontological, even if to a certain extent it is identity-based: it lies in finding oneself exposed, together with others,

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to the same forms of oppression insofar as one is perceived as part of a group. It is no coincidence, then, that this common condition in the face of systems of meta-individual oppression is also the source of common practices of contestation, or resistance, or struggle, activated not as single individuals, but as groups (again, Fraser’s counterpublics) able to enter the public scene and challenge the self-reproductive mechanisms of a given power system. Collective action—the agency of groups and movements—can be one of the main factors in the construction of the identity of these groups and movements, not preceding political action but arising from it (Calhoun 1991; Cerulo 1997; Wall 2000). For instance, women must organise themselves as a group in order to bring about a change in the basic ideology of human society: in order to be effective, their action must consist of a political and cultural struggle concerning the overturning of patriarchal laws (Cavarero and Restaino 2002, 159). In the same line taken by Young to avoid certain shortcomings of the anti-essentialist critique, which is typical of some feminist approaches, I argue that the identification of certain forms of group vulnerability (or oppression) is necessary to both make evident, and unhinge, the operation of power systems that are at the origin of such oppression, and that would otherwise be difficult to perceive. As Young writes, liberalism denies the reality of groups and exalts the political role of the individual. For liberalism, categorising individuals into groups, on the basis of their gender, or ethnic, or religious, or sexual affiliation, says nothing about the individual, his or her experience, abilities, and possibilities. In this sense, the only non-oppressive approach is to think and treat people as individuals, as unique and different individuals. This individualist ideology, according to Young, obscures oppression: without conceptualising people as groups, at least in some cases and in some sense, “it is not possible to conceptualize oppression as a systematic, structured, institutional process” (Young 1994, 718). Therefore, thinking of vulnerability as a condition that is only predictable of the single individual—even if one considers the system of relations in which the person is inserted—can overshadow the structural mechanisms that produce or increase vulnerability, not simply affecting several individuals at the same time, but affecting individuals insofar as they are perceived as members of marginalised or discriminated groups, or excluded within a given power system. For example, the vulnerability that can be spoken of regarding gay people is not a condition that affects

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only this or that individual, because of the resources they have or do not have, but it is the consequence of a system of regulation of sexuality, which is centred on the heterosexual paradigm. It is the functioning of this system that produces vulnerability, and that produces it for a whole group of people (rather, for a group that is perceived as such) even if this vulnerability may vary at the individual level because of specific factors. Again, the vulnerability of women in clinical trials (the same could be said, in very similar terms, for the elderly and members of ethnic minorities) depends not only on subjective conditions and individual traits but also stems from the fact that the clinical and pharmacological research system structurally tends to under-represent women (Zucker and Prendergast 2020; Khan et al. 2020). Multiple factors are at work, some of which can be traced back to systemic mechanisms of oppression: (1) the consideration of males, often of Caucasian origin, as the “normal” study population; (2) the assumption of a “male point of view” in the conduct of the study, and thus for example in the formulation of informed consent templates; (3) the idea that physiological differences are a negligible factor in drug response; (4) the idea that women are more complex and more costly subjects because of their changing hormone levels; (5) worries on risks associated with the effects of drugs on foetal development, risks which led first to the exclusion of pregnant women from trials and then in general to the limited inclusion of women of childbearing age, especially in the early stages of research (Liu and Dipietro Mager, 2016, 709). These factors produce a condition of vulnerability for women qua talis, exposing them to risks (in both the role of patients and participants in trials) that range from a higher incidence of adverse reactions to drugs, overmedication linked to dosages that are not calibrated to the female body, and the use of informed consent models designed for the neutral-and-universal male individual. Such mechanisms, as mentioned, can be both unveiled and dismantled by taking a group perspective. The exclusion of a single woman from a clinical trial, or a member of an ethnic minority, can be either justified due to individual factors or unfairly discriminating if motivated by prejudice or other non-legitimate reasons. However, only if a group perspective is assumed (and it is made clear that this exclusion affects women as such, and not only some of them) power mechanisms and systemic prejudices that every woman, as such, experiences (for instance, being induced to take drugs which are tested mainly, if not exclusively, on males) become perceptible. As Young writes (1994), this is all the more urgent when the

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groups at stake are not identity groups, rather groups in which individuals are included without reference to unifying factors and common traditions (such as ethnicity, religion, or national belonging): without a passage to the group dimension, the vulnerability of migrants in irregular conditions, or of people with disabilities, is diluted in individual specificities and often obscured by individual factors. To gain such a view on structural factors, the strategy proposed by Florencia Luna—according to which it would be more appropriate to speak of “layers” of vulnerability, thereby avoiding the risks of essentialism (Luna 2009, 128)—is not very effective. It is true that the concept of layers of vulnerability allows for greater flexibility than the category of group vulnerability, and makes it possible to highlight how each individual can be in conditions of vulnerability resulting from the occurrence of one or more of these layers, in different forms and intensity. Such a strategy correctly avoids considering a person or a category of people as intrinsically vulnerable, showing how this vulnerability depends on the occurrence or non-occurrence of certain conditions (Luna 2009, 129). This ability to grasp the intersectionality of each person’s vulnerability, and to avoid the risks of stereotyping, nevertheless suffers from a considerable limitation: layer after layer, intersection after intersection, it destroys any possible categorisation, and focuses exclusively on the individual. In Young’s words, this approach can “generate an infinite regress that dissolves groups into individuals”, because any category can be reduced, in some way, to individual units (Young 1994, 721). If each person can be in a vulnerable condition depending on the occurrence of different factors, always variable and always different, what counts is no longer the single factor of vulnerability, but the specific condition in which the individual finds himself/herself. And the mechanisms of power/privilege that determine a structural vulnerability of certain categories of individuals (women, the elderly, migrants, etc.) are hidden behind the infinite combinatorial possibility of the multiple layers of vulnerability (gender, social status, race, ethnicity, religion, social context, family context, psychophysical conditions, and so on), as in a game of mirrors in which each image has its autonomy from the others. One caveat must be stressed: oppression is one of the sources of group vulnerability, but oppression and vulnerability do not overlap. When oppression arises from the functioning of certain social systems and structures, it does limit the opportunities for members of certain groups and penalise them in different ways. Legal rules, social and cultural norms,

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mechanisms of mass communication, each of these forces can represent a vehicle of oppression, in a structural perspective, and independently of the will of the subjects involved in these mechanisms (Young 1990, 41). However, there are other conditions of vulnerability that cannot be associated with oppressive contexts, merely depending on the common occurrence of certain conditions of vulnerability, which affect people’s possibility of action, their capacity to protect against risks, and their capacity to cope with the consequences of these risks. These conditions produce a different form of group vulnerability, which can be named “positional” vulnerability. Positional Group Vulnerability In a second sense, it is possible to speak of group vulnerability when the vulnerability depends on a similar positioning of several individuals within a given context, such as to condition their agency, and above all to protect themselves against risks and uncertainties and to cope with their negative consequences. This positioning, however, does not refer to any group identity: it can neither be claimed as such from the inside (in a sort of identity politics) nor can it be used from the outside in an attributive way, as in the previous hypothesis. Here again, I refer to Young’s thought, and the way she uses the category of “seriality” borrowing it from Sartre’s language (Sartre 2004), to label a social collective without common attributes: the members of a series “are unified passively by the objects around which their actions are oriented or by the objectified results of the material effects of the actions of the others” (Young 1994, 724). The benefit of this concept is that it can illuminate the condition of vulnerable people as similarly situated without making essential claims about people’s identities or intrinsic or real interests (Woodly 2015, 221). However, while the concept of seriality highlights some traits of positional vulnerability, they shouldn’t be confused: first, because the concept of seriality helps us to think about structural relations, without giving any additional information about power asymmetries, needs, or justice claims: it is a formal notion, that doesn’t necessarily focus on vulnerability. Second, the concept of “vulnerable groups” is already rooted in international law and Courts’ case law, and this makes it particularly useful as a basis for political claims and mobilisations. In this second perspective, a vulnerable group is not made up of people with a common identity (be it built around ethnicity, religion, or gender),

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nor is it structured in view of common objectives in which each subject recognises himself/herself (the contestation of an oppressive or discriminating power structure), but of people who, in a very contingent way, are exposed to the same context of risk, and who, because of it, find themselves conditioned in their possibility of action, their capacity to protect against risks, and their capacity to cope with the consequences of these risks. In other words, if the first type of group vulnerability refers to identities that are socially constructed and internalised by individuals in view of a common social action (Castells 1997, 7), in this second perspective the members of a group do not identify themselves, nor are they identified, because they belong to the group: they find themselves passively included in it only because of the common occurrence of certain conditions of vulnerability, within which each one continues to pursue his or her aims, and does not necessarily identify with struggles, claims, and political actions carried out on behalf of the group itself. Group membership, in this case, does not depend on what the individual subjects are, but on their position within a context of risk or uncertainty, and the possibilities of action that these subjects are given or precluded. Group vulnerability, therefore, does not refer to ontological characteristics of the subjects (also in this case), neither is it linked to the functioning of structures and forms of systemic violence or oppression, directed towards certain persons as members of a group (as in the previous case). Vulnerability is here, more simply, a positioning—with respect to certain vulnerability factors—that is common among subjects who are unrelated in every other respect, and who are therefore included in the group only as long as, and to the extent that, those factors persist (Young 1994, 728). Identity factors are not at stake, both in the sense that individuals who find themselves within a group, because of their common positioning, do not define their identity by virtue of that positioning (or at least not necessarily), and in the sense that they are perceived, from the outside, as a group only because of that positioning, and not by virtue of any real or supposed common identity. These two meanings of group vulnerability can sometimes be intertwined. A group can be vulnerable in a positional sense, at the same time experiencing conditions of oppression and discrimination, which are typical of identity-based vulnerability. For example, it is certainly possible to consider the elderly as a category of people who experience some conditions of identity-based vulnerability, when “ageist” ideologies work to mark the distance from an ideal model of the independent-autonomous

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subject, and lead to labelling and marginalising outcomes (Fineman 2004, 36; Ayalon and Tesch-Römer 2018). However, these conditions are not as relevant as “positional” factors, i.e. they are second-order elements in determining the vulnerability of such individuals. Far more significant is that certain political, economic, and social mechanisms similarly position elderly people, and expose them to analogous conditions of vulnerability, at least potentially, and independently from ageist ideologies. The vulnerability of this group mainly depends on the common positioning of elderly people with reference to social and economic structures (the job market), institutional arrangements (the retirement system), and mechanisms and practices in specific sectors (healthcare, education), which affects their possibilities of action and resilience. Considered in these terms, group vulnerability does not stem from a more or less marked distance from an ideal model of the independent-autonomous subject, which would lead to labelling outcomes and reinforce the myth of independence and autonomy as an anthropological model of reference (Fineman 2004, 36– 37). On the contrary, speaking of group vulnerability aims to highlight how certain political, economic, and social mechanisms contribute to placing groups of people in conditions of vulnerability, at least potentially. Of course, it is not the same thing to be a rich elderly person or a poor elderly person, to be an elderly man or an elderly woman, to an elderly citizen or an immigrant, healthy or affected by some pathology, and so on. As Luna rightly notes, these are all layers of vulnerability that can add up or overlap in different ways for each person. However, speaking of elderly people as a vulnerable group highlights the fact that age—alongside other factors—contributes to positioning people in a certain way within social and family systems, and helps to identify some of the factors of vulnerability that these people will have to deal with. The classification of elderly people as a vulnerable group does not tell us anything about what an elderly person is (in ontological, or identity terms), nor does it tell us the extent to which the elderly are able to cope with the risks and uncertainties of life, or what specific consequences will result from exposure to certain risk factors. On the contrary, it can tell us much about the kind of limitations, or prejudices, or unfavourable practices to which these people may be exposed, to a greater extent than other age groups, so that we can better identify the needs of such people. For instance—limiting the examples to the healthcare context—several studies show a lower propensity of doctors to resuscitate elderly patients (Ebrahim 2000), or a greater exposure of elderly people to abuse and violations in settings such as nursing

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homes (Daly et al. 2011), or a tendency to prescribe to elderly patients a number of treatments and analyses in inverse proportion to their age (Asch et al. 2006), or even a tendency to reserve less expensive treatments to elderly patients than to younger patients, even in the presence of equivalent pathologies (Kapp 2002). In all these cases, and in many others that could be made in other fields as well, the inclusion of a person in the category of “the elderly” is not intended to define the essence of the person, nor even to define that essence in victimising terms, but to highlight—as a kind of early warning—the situations of vulnerability and the contexts of risk to which elderly people are exposed, to a greater extent than others, and the social mechanisms with which elderly people have to deal, with the resources at their disposal, to minimise their vulnerability (Bozzaro et al. 2018). An interesting example of vulnerability is what we can observe with regard to the so-called “precariat”, the new class of workers that is typical of the globalised economy and increasingly present in public debate. Although quite heterogeneous, the precariat—a neologism that combines “precarious” and “proletariat”—is a group that includes people characterised not only by unemployment, casual labour, and low income, but also experiencing a peculiar sense of precarity from an existential point of view. As Standing rightly notes, to be part of the precariat doesn’t come from the mere absence of a secure employment, or from minimal labour protection, even if both these factors play a big role in creating anxiety and stressful conditions. Moreover, to be part of the precariat means “being in a status that offers no sense of career, no sense of secure occupational identity and few, if any, entitlements to the state and enterprise benefits that several generations (…) had come to expect as their due” (Standing 2011, 24). Key to the precariat’s vulnerability are many factors: people who find themselves in such a condition are forced to accept a life of unstable labour, flexible scheduling, on-call contracts, and—as a consequence— an income uncertainty. Additionally, they don’t receive (or rarely receive) non-wage forms of remuneration, such as paid holidays and medical leave, or subsidised accommodation and transport. Not being permanently integrated in an organisation or company, they do not develop group relationships, thereby losing social or cultural rights, which are linked to the belonging to occupational guilds or trade unions (Standing 2). But even more important is that these people are in positions with no career prospects, without traditions that make them feel they belong to a

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community with stable practices, codes of ethics, and norms of behaviour (Standing 2011, 12). All these factors produce a specific vulnerability that at the same time consists in economic uncertainty, lack of social rights and social security entitlements, and a “sense of alienation and instrumentality” in what they do (Standing 2011, 12). People in precarious employment not only experience specific risks and uncertainties, linked to the possibility of losing their job, the stress linked to constant change and flexibility imposed on them, and uncertain career possibilities. They also find themselves with fewer resources to cope with these risks, because of both their lack of trade union representation and the absence of public support and social security instruments for them. Therefore, it is possible to argue that people in the precariat are exposed to a similar context of risk, and are conditioned in their possibility of action, their capacity to protect against risks, and their capacity to cope with the consequences of these risks. They experience the so-called four A’s: anger, anomie, anxiety, and alienation, because of the denial of any realistic option for advancing a meaningful life, a sense of passivity born of despair, and a chronic insecurity about what they have and do (Standing 2011, 20). Therefore, even if the vulnerability of each single precarious worker varies in magnitude and effects, it stems from analogous conditions and political, economic, or social mechanisms that contribute to placing them towards similar risks and uncertainties.

The Consequences of Group Vulnerability, Between the Rights of Individuals and the Rights of Groups Vulnerability—irrespective of its qualification in individualistic or universalistic terms, and the reference to individuals or (also) to groups—has been interpreted as a reason for the recognition of rights, for the attribution of obligations, and for the implementation of specific procedures and mechanisms of protection. More precisely, in literature, vulnerability has been interpreted both as the source of moral obligations—and possibly as the justification of legal duties—and more prudently as a good reason to activate forms of protection arising from other moral claims (Mackenzie et al. 2014, 10) (e.g. on the right to express one’s consent, or on the right to education, housing, protection of private and family life, and so on).

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In the first perspective, one can mention a long tradition of thought that can be traced back, more or less explicitly, to authors such as Lévinas, Jonas, or Simone Weil. But one must also mention the contribution of authors such as Goodin, or Kittay, who from different perspectives took vulnerability and dependence as two focal points of their moral theories. Thus, for example, philosophers like Simone Weil, Emmanuel Lévinas, Hans Jonas, and Judith Butler, focused on the vulnerability of the person as a pivotal element of their moral philosophy, also in response to “vitalist” philosophies widespread between the end of the nineteenth century and the first half of the twentieth century. In Lévinas, for example, the epiphany of the face of Another is not only the sign of his/her radical otherness but at the same time manifests the vulnerability of Another himself/herself, his/her exposure, the possibility that such an Otherness may be reduced and objectified and thus denied. At the same time, the face of Another grounds the freedom and responsibility of the Self not as a limit, but precisely as a call that arises from vulnerability and exposure to offence. Lévinas writes that “To manifest oneself as a face is (…) to present oneself in a mode irreducible to manifestation, the very straightforwardness of the face to face, without the intermediary of any image, in one’s nudity, that is, in one’s destitution and hunger”. The being that expresses itself as a face imposes itself not by force, but rather “by appealing to me with its destitution and nudity – its hunger – without my being able to be deaf to that appeal” (Lévinas 1991, 200). The expression of the being as a face is at the same time a manifestation of its infinite transcendence (that is, its irreducibility to our representation or possession), and a manifestation that originates from fragility, from being exposed to violence and hunger, and it is precisely on such vulnerability that the appeal to the responsibility of the interlocutor is based. Lévinas writes that “I cannot evade by silence the discourse which the epiphany that occurs as a face opens… Before the hunger of men, responsibility is measured only ‘objectively’; it is irrecusable” (Lévinas 1991, 201). The human face, which in Lévinas has the traits of the orphan and the widow, the poor person and the stranger (all figures, we could say, linked to the condition of relational, juridical, social, economic, and political vulnerability), also moves the theory of fraternity from the ontological and metaphysical level to the ethical one: fraternity is not resolved in the causal relationship with the father (that is, from being effects of a common cause), but from the assumption of responsibility towards the Other, established by the acceptance of the face: “It is my responsibility

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before a face looking at me as absolutely foreign (…) that constitutes the original fact of fraternity” and whose acceptance establishes an asymmetrical relationship: the subject is responsible for the Other from both a position of superiority (because “my position as I, consists in being able to respond to this essential destitution of the Other, finding resources for myself”) and of inferiority (because “the face summons me to my obligations and judges me (presenting himself) from a dimension of height” (Lévinas 1991, 220). Focusing on the legal consequences of vulnerability, Goodin argued vulnerability as the source of obligation, against models centred on the will and the contract (Goodin 1986). The basis of obligation is not a voluntarily constituted relationship, but the fact of dependence on others: most of our duties, according to Goodin, arise precisely from nonvoluntary relationships of dependence and interdependence (“things that happen to you”: Goodin 1986, 133), such as relationships within the family or others which we often tend to wrongly qualify as voluntary. More specifically, according to Goodin, the principle of protection of the vulnerable stems from the duty of protection towards those who prove to be vulnerable to our actions, or because of our choices (it is therefore not a generic obligation of protection). Vulnerability is, according to Goodin, an excellent standard for the allocation of responsibility because it is both relational—in the sense that it highlights the relationship at the basis of vulnerability, and therefore saying that A is vulnerable with respect to B in relation to X means saying that B is responsible for X with respect to A—and relative, or scalar—that is, it allows us to measure B’s responsibility on the intensity with which A’s interests are affected by B’s action (Goodin 1986, 118). However, it is not very clear in Goodin what interests are involved in the relationship between the vulnerable and the responsible subject, and whether all interests have the same value from this point of view. Indeed, Goodin often refers to vital needs or interests, but he does not offer any stringent definition of these interests nor a list, albeit indicative, of them: following Rawls, he merely points out that these interests constitute preconditions for people’s life plans, but leaves unanswered the question of what and why they are preconditions for the realisation of individual life plans. More accurately, Kittay considers both the management of dependency and the response to vulnerability, as priority objectives for public institutions, beyond the liberal paradigm of independence and subjective autonomy. Kittay moves from the discussion of the unequal distribution

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of care work within society, and of the vulnerability of those burdened with care work (women, basically), and therefore analyses vulnerability within the horizon of social justice policies (Kittay 2019). The notion of “nested dependency” is particularly interesting in the analysis of responsibility and obligations deriving from the vulnerability of others, because it highlights—more precisely than Goodin does—how the relationship between the caregiver and the dependent person is ambivalent, and how the assumption of responsibility for a vulnerable person can, in turn, generate vulnerability (Kittay 2019, 107). In this understanding of dependency, what is at stake is not so much to identify the subject responsible for the vulnerability and to attribute, consequently, burdens and obligations: rather, it is to redistribute and share the costs of care work at a social level: “we need a division of labour that issues in dependencies and interdependencies” (Kittay 2015, 166). For Kittay, the primary responsibility for vulnerability (and dependency) is attributed not only to public services through the traditional policies of the welfare state, but also to the society as a whole, through a fairer distribution of the burdens of this responsibility among people, and not simply relegating it to the private sphere. As dependent beings, people can demand a reordering of priorities and entitlements, that are due precisely because the value of human lives “derives from the chain of dependent relations” that made our lives possible (Kittay 2015, 172). Elizabeth Anderson offers a more precise definition of the obligations related to the recognition of vulnerability, arguing from the perspective of equality as a goal of democratic societies. By using Sen and Nussbaum’s capability approach, Anderson develops a theory of equality in which the members of a democratic community should guarantee the essential conditions for the freedom of all to be possible (Anderson 1999, 315). Thus, on the one hand, people are entitled to those capacities necessary not to be victims of oppression: on the other hand, they are entitled to those capacities necessary to function as citizens of a democratic community on an equal basis. For example, inequalities and injustices in social relations, stereotypes, oppressive norms towards certain individuals or groups, discrimination, are all cases where people are denied this equal functioning. But again, it is a matter of identifying public policies and social interventions that can remove the causes of inequalities, foster labour and social integration, and provide resources to minimise personal vulnerability (Mackenzie 2014, 54).

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In a partially different sense, vulnerability is not understood as a direct source of obligations and rights, but rather as a marker of contexts deserving special attention, and susceptible to a more stringent application of certain policies and interventions, or in any case deserving enhanced protection, within rules and obligations already established. Vulnerability can be defined as a signal (Mackenzie et al. 2014, 10) that alerts to situations deserving special care and attention, or as a magnifying glass (Peroni and Timmer 2013, 1079) through which requests, needs, and requirements for protection acquire greater weight and significance. In this second perspective, the vulnerability paradigm is used, in a bottom-up perspective, to interpret rights that are already recognised and guaranteed, defining them more accurately, to strengthen their effectiveness, and to extend their scope or modalities of application (Re 2018, 24). Recognition of the vulnerability of individuals and groups, therefore, does not entail the attribution of specific rights and/or differential treatment, but imposes, for example, strict scrutiny, i.e. an enhanced justification of the legitimacy of certain norms, demonstrating that such norms— suspected of conveying forms of discrimination—serve a fundamental public interest. Thus, when the target groups are deemed susceptible to be discriminated against (because stigma or marginalisation are associated with certain characteristics, and there is a relative exclusion from power, such as a limited ability to influence the legislature), the courts must consider some sort of higher threshold (i.e. “fundamental public interest”) when analysing the rules at stake. An important aspect is that, where courts recognise the need for strict scrutiny (because, for example, particularly vulnerable people are involved), they should reverse their usual starting point by presuming such laws to be unconstitutional: the burden of proof is reversed, so that it is up to the government to show that the law at stake is legitimate because it conveys a fundamental and compelling public interest (Winkler 2006; Fallon 2006, 1267). As we already discussed in the second chapter, in the case law of the ECHR, the vulnerability of certain groups requires the application of a reinforced interpretative mechanism: where certain people are recognised as being in a condition of particular vulnerability (due to belonging to discriminated minorities, for example, or to groups that are victims of prejudice and stigma), specific forms of protection and more stringent guarantees are needed. For example, the condition of minors, of people

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with psychiatric disorders,1 or of people deprived of liberty,2 is recognised as a condition of vulnerability specific to these categories of subjects, and therefore motivates “a specific duty to take reasonable care to protect (them), and… a heightened standard of vigilance”.3 This higher standard may, from time to time, be used to enact positive duties of protection in specific areas, such as the prohibition of torture and slavery, the protection of liberty and security, freedom of association and assembly, etc.; to determine a stricter standard for the definition of inhuman or degrading treatment (Besson 2014, 73); or, on a procedural level, to broaden or facilitate the admissibility of individual complaints, to reduce the margin of appreciation of states, or to justify the reversal of the burden of proof. In short, in all these mechanisms and interpretative models, vulnerability plays the role of a magnifying glass, a standpoint from which “the illtreatment caused to the applicant looks bigger” (Peroni and Timmer 2013, 1079).4 Both of these approaches can apply (and have been applied, as these examples show) to group vulnerability, as well as to individual vulnerability. In other words, vulnerability may be understood both as a direct source of obligations and rights, and as a signal of contexts deserving special attention, and susceptible to a more stringent application of certain policies and interventions, also concerning the condition of groups, as well as of individuals. The question, in this regard, is whether the recognition of group vulnerability always and in any case determines individual consequences (i.e. the recognition of subjective rights for members of groups considered and/or qualified as vulnerable), or whether it can also determine the recognition of collective rights. The debate on collective rights is too wide-ranging to be adequately summarised on these pages (Jones 1999, 2016), and in some ways is not directly relevant to the reflections developed here. The question is not whether collective rights are rights held by a group, or whether they are individual rights related to shared interests, or whatever. What is at 1 Keenan v. The United Kingdom, App. No. 27229/95, 85. 2 Salman v. Turkey [GC], App. No. 21986/93, 99. 3 Keenan v. The United Kingdom, cit. 4 See also the opinion of Judge Andràs Sajò in M.S.S. v. Belgium and Greece, App. No. 30696/09, at 101: “For the Court the duration of the detention in the present case is comparable in its effects to much longer stays in detention because of the assumed vulnerability of the applicant” (italics added).

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stake is whether the recognition of group vulnerability can have legal consequences for the group as such, or exclusively at the individual level. From this point of view, we may recall the distinction between corporate rights and collective rights (Jones 1999, 356). The former are rights held by a supra-individual entity, which exercises them through its organs (we can think of rights in rem or credit rights, as well as rights to public services), and presuppose if not a real legal personality in the collective entity, at least some form of agency separate from that of its members. Conversely, the latter are rights shared, or exercised jointly, by the members of a given group, without the group having a real moral standing separately from the moral standing ascribed to its members severally. However, even in this second hypothesis, the rights that individuals exercise are not entirely independent, but derive from the membership of the group. As Raz wrote, they exist for three reasons: first, because some aspect of the interest of human beings justifies the fact that others are bound by certain duties. Second, these interests relate to a public good, and the right to that public good serves the interests of those individuals as members of that group. Third, the interest of none of the members of the group, as an individual, is sufficient to justify holding another person to be subject to a duty (Raz 1986, 208). A collective right, therefore, depends on the existence of the group at least in the sense that the interest protected by the right, at the individual level, would not be sufficient to justify its existence: and conversely, the right recognised to the group is functional to the protection of the interests of the individuals who are part of it, interests that individuals manifest as members of a group (Green 1991, 315). One may consider as an example the so-called cultural rights, recognised to protect certain practices or traditions that individuals value, but which are protected only insofar as these people belong to a larger group (the right of a linguistic minority to use its own language). And similar reasoning may apply to any set of individuals who share an interest provided that such joint interest is sufficiently significant to create duties for others. A group of patients suffering from the same pathology, or even a group of cyclists in a certain city (Jones 1999, 357), can be considered as groups for right-holding purposes: even if the individual members hold these rights, they generate duties insofar as they are perceived as members of a group which gives relevance to their subjective interests. More relevant to the present investigation is the question of the object of such rights, whether they are collective or corporate. While

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according to Raz the object of the rights granted to the group is essentially represented by goods having the characteristics of non-rivalry and non-excludability (the consumption of the good by one individual does not reduce the level of consumption by others, and no member of society can involuntarily be excluded from the benefits of these goods), according to Réaume (1988) this interpretation is too broad, because it focuses mainly on the justification of the rights in question, and not on their exercise. As Réaume argues, some group rights are allowed not only in so far as certain individual interests, shared by a group of persons, are considered to be sufficiently important to generate duties and obligations for others: there are cases in which cases the object of these rights are goods whose enjoyment is participatory. These rights concern goods that are not merely individual, but such as to require the participation of others (“These core aspects (…) are such that each individual needs others in order to enjoy them, not merely in order to produce it”), and above all goods whose value depends precisely on the participation of others. Réaume gives many examples of participatory goods, including the enjoyment of a certain culture, or language, or membership of a religious community (Réaume 1988, 11): protecting certain lifestyles, certain practices, certain traditions, can therefore lead to the recognition of participatory group rights, that is, the protection of rights which are not simply individual rights shared by a more or less large group of persons, but rights to enjoy a good (a culture, certain traditions, a lifestyle) in a participatory way, such that only the enjoyment of the same asset by other people gives that good its specific value (Taylor 1995, 127). In other words, these rights imply both a guarantee of non-interference by outsiders or governments, and—on the positive side—requires policies aimed at promoting that specific good (tax exemptions, concessions, or other). The protection granted to certain groups or categories of people through the provision of so-called hate crimes (more precisely through the criminalisation of hate speech) is also an interesting example (Wiedlitzka 2016; Delgado 1982; Waldron 2012; Maitra and McGowan 2012; Green 2013; Heinze 2016). What is protected is a good—not to be offended or insulted—which is enjoyed in a non-individual way (it is not my right not to be offended as an individual, but the right that none of us should be offended): and it is protected selectively, i.e. for groups we consider vulnerable and deserving of such protection (Pinto 2010, 704). As Sandel writes, the mere harm caused by hate speech is not sufficient to

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justify a compression of freedom of expression: “What matters is the moral importance of the speech in relation to the moral status of the settled identities the speech would disrupt or offend” (italics mine) (Sandel 2006, 258). The right not to be offended is not always protected, but only when, for historical or social reasons, some groups manifest a specific vulnerability: it is not the same thing to offend Holocaust survivors with negationist speeches, or to offend American segregationists or members of the Ku Klux Klan (Ansuategui Roig 2017, 45). Similarly, it is not the same thing if offence is directed towards majority group’s identities, traditions, or beliefs, or if it is directed towards socially vulnerable minority groups: for example, in Europe an offence directed against the religious sentiment of the Christian majority would not carry the same weight as that of a hate speech towards Islam or Muslims, since this group, as a minority, is socially more vulnerable than the first, less able to protect itself and with fewer resources in terms of media or political representation (Pinto 2010, 710). In this sense, it seems correct to argue that group vulnerability can be, at least in some cases, the reason for the recognition of a participatory group right, such as the right not to be offended by hate speech: it is not the mere aversion or incitement to hatred of a generic category of people that is relevant, but hatred directed towards groups considered vulnerable, or at risk of marginalisation, or otherwise deserving of special protection from expressions of intolerance or resentment. It is precisely this last example that also makes it possible to show how group vulnerability, where legally protected, does not necessarily give rise to forms of essentialism, or the neglect of individual differences between members of the group. More importantly, it allows us to demonstrate that group vulnerability does not lead to undue valorisation of the interests of the group over and above the interests of the individuals who participate in it (Kukathas 1992, 112). In fact, what is at stake is not the protection of the group’s interests, but of individual interests on a participatory good: that is, a good that can only be protected and enjoyed together with others. The right not to be offended and insulted does not imply that the group to which this right refers (e.g. the group of Holocaust survivors) has a value in itself, which exceeds or is independent of the value of the individuals who belong to it, nor does it imply that the group must be protected as such, or that its continued existence must be guaranteed (in this case, obviously, impossible). Similarly, the interest in stable employment and non-humiliating conditions of existence is protected not as the interest of a single individual, but as the interest of an entire class

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of individuals in not being subjected to exploitation and marginalisation. However, this interest is still an individual interest, even if it can only be enjoyed together with others, since it depends on a reform of the economic system rather than on specific guarantees that can be given to the individual. The guarantee of such a right implies, on the one hand, that the vulnerability in question depends on the fact that the persons involved are positioned within the same context of risk (for instance, the spread of an anti-Semitic and fascist culture, or the sense of precariousness that comes from unstable labour, flexible scheduling, on-call contracts, and income uncertainty): because of this, they find themselves negatively affected in their possibility of action, of protecting themselves against such a risk, and of coping with the negative consequences of it. On the other hand, the protection granted concerns a good that is both individual (the right of each person not to be insulted, or not to live under constant threat of losing her job) and participatory, i.e. not fully enjoyable unless together with the other subjects that are part of that group. The fact that it is others who are insulted, lose their job, are exploited and marginalised, rather than me, is not enough: either all those who belong to the group are protected, or the protection is not effective. Insofar as even if only one person is insulted because of the colour of his/her skin, the right of all the persons placed in the same manner—people with the same skin colour—will not be sufficiently protected. Similarly, insofar the right of not experiencing chronic income insecurity and associated inability to develop meaningful lives is not guaranteed for all, it will not be sufficiently protected for anyone.

Conclusions From what has been said so far, it follows that group vulnerability can be understood from a non-essentialist and non-stereotypical perspective, and it can be politically and legally useful. More precisely, group vulnerability can be understood in two main ways, applicable on a case-by-case basis to different situations and contexts: according to a first model, it denotes a condition determined by or linked to systemic forms of violence or oppression, directed towards certain individuals as members of a group. According to a second model, it depends on a similar positioning of several individuals within a given context, such as to condition their possibilities of action, and such, above all, as to affect their ability to cope with

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risks and uncertainties, and to manage the consequences of such risks and uncertainties. In the first case, group vulnerability depends on the implementation and perpetuation of a system that produces marginalisation, discrimination, power asymmetry, exclusion, to the detriment of (what is perceived ab extra as) a group, and creates a form of group identity also merely as the awareness by the members of the group that they are exposed to a same system of oppression. In the second case, vulnerability depends exclusively on a common positioning of the subjects that condition their resources and possibilities of action: however, it has no identity trait, and it cannot be claimed from the inside (in a sort of identity politics), nor can it be used from the outside in an attributive way. While the first type of vulnerable groups refers to identities that are socially constructed and can be internalised by individuals aiming at collective social action, in this second perspective the members of a group do not identify themselves, nor are they identified, because of their membership, but they find themselves within the group exclusively because of the common occurrence of certain conditions of vulnerability, without the need for identification with struggles, claims, and political actions carried out in favour of the group itself. The consequences of group vulnerability are manifold: on a moral level, certainly, but also on a political and legal level. From a political point of view, group vulnerability allows conditions of oppression or risk to come to the fore that would otherwise not be perceived, through the emergence of counterpublics crucial to the claiming of rights and guarantees: systemic forms of oppression become evident only if a group perspective is taken, as well as the mechanisms of power and prejudice at the origin of certain conditions of vulnerability. From the legal point of view, group vulnerability is used both to justify the recognition and guarantee of specific rights, and to activate forms of protection based on other grounds. In the first perspective, group vulnerability has been interpreted both as a source of obligations for specific individuals, as a basis for redistributive policies, and as a justification for specific forms of protection (exemptions, recognition of spaces of autonomy, etc.). For instance, by implementing measures that allow groups to maintain aspects of their cultural heritage, applying education or employment policies, protecting linguistic minorities through funding and providing for the protection of their linguistic heritage, or granting members of minority groups certain forms of exemption from general rules (Shapiro and Kymlicka 1997).

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In the second perspective—for instance, in the case law of the ECHR— the vulnerability (the particular vulnerability) of certain groups has been used to justify the application of a stronger interpretative mechanism with respect to the need for specific forms of protection by public institutions, or by determining a stricter standard for the definition of inhuman or degrading treatment, or by widening or facilitating the admissibility of individual complaints, or by reducing the margin of appreciation of the States. Finally, group vulnerability can give rise to two types of rights (apart from the more limited cases of recognition of collective rights, such as rights granted to linguistic minorities or religious groups): group rights and participatory group rights. In the first case, these are rights concerning individual interests, which are nevertheless protected because the persons enjoying them belong to a larger group: group vulnerability is, in short, a justification for protecting certain individual interests which become relevant because each person belongs to a larger group. In the second case, group vulnerability justifies the recognition of rights that have as their object a particular type of individual interest: an interest relating to a participatory good, that is, a good which can be protected and enjoyed together with others.

References Anderson, Elizabeth S., “What Is the Point of Equality?”, Ethics, (1999) 109.2: 287–337. Ansuategui Roig, Francisco J., “Libertà di espressione, discorsi d’odio, soggetti vulnerabili: paradigmi e nuove frontier” (Freedom of Expression, Hate Speech, Vulnerable Subjects: Paradigms and New Frontiers), Ars Interpretandi (2017) 1: 45. Asch, Steven M., et al. “Who Is at Greatest Risk for Receiving Poor-Quality Health Care?”, New England Journal of Medicine (2006) 354.11: 1147– 1156. Ayalon L., and C. Tesch-Römer, eds., Contemporary Perspectives on Ageism, Springer, Cham, 2018. Baer, Susanne, “Privatizing Religion. Legal Groupism, No-Go-Areas, and the Public-Private-Ideology in Human Rights Politics”, Constellations (2013) 20.1: 68–84. Bartky, Sandra Lee, Femininity and Domination: Studies in the Phenomenology of Oppression, Routledge, 2015.

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Fallon, Richard H., Jr., “Strict judicial scrutiny”, UCLA Law Review (2006) 54: 1267. Fineman, Martha Albertson, The Autonomy Myth: A Theory of Dependency, The New Press, New York 2004. Fineman, Martha Albertson, “The Vulnerable Subject and the Responsive State”, Emory Law Journal (2010) 60: 251. Fineman, Martha Albertson, “Beyond Identities: The Limits of an Antidiscrimination Approach to Equality”, Boston University Law Review (2012) 92: 1713–1770. Fraser, Nancy, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy”, Social Text (1990) 25/26: 56–80. Goodin, Robert E., Protecting the Vulnerable: A Re-analysis of our Social Responsibilities, University of Chicago Press, 1986. Goodley, Dan, Dis/ability Studies: Theorising Disableism and Ableism, Routledge, 2014. Green, Leslie, “Two Views of Collective Rights”, Canadian Journal of Law and Jurisprudence (1991) 4.2: 315–327. Green, Leslie, “Internal Minorities and Their Rights”, in Judith Baker (ed.), Group Rights, University of Toronto Press, Toronto, ON, 1994, p. 71. Green, Leslie, “Should the Law Improve Morality?”, Criminal Law and Philosophy (2013) 7: 473–494. Heinze, Eric, Hate Speech and Democratic Citizenship, Oxford University Press, Oxford, 2016. Jones, Peter, “Group Rights and Group Oppression”, The Journal of Political Philosophy (1999) 7.4: 353–377. Jones, Peter, “Group Rights”, in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2016), URL: https://plato.stanford.edu/archives/sum 2016/entries/rights-group/. Kapp, Marshall B., “Health Care Rationing Affecting Older Persons: Rejected in Principle but Implemented in Fact”, Journal of Aging & Social Policy (2002) 14.2: 27–42. Khan, Safi U., et al., “Participation of Women and Older Participants in Randomized Clinical Trials of Lipid-Lowering Therapies: A Systematic Review”. JAMA Netw Open (2020) 3.5: e205202–e205202. Kittay, Eva Feder, “Dependency”, in Rachel Adams, Benjamin Reiss, and David Serlin (eds.), Keywords for Disability Studies, New York University Press, New York, 2015. Kittay, Eva Feder, Love’s Labor: Essays on Women, Equality and Dependency, Routledge, 2019. Kukathas, Chandran, “Are There Any Cultural Rights?”, Political Theory (1992) 20.1: 105–139.

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Lévinas, Emanuel, Totality and Infinity: An Essay on Exteriority, Kluwer Academic Publishers, Dordrecht, 1991. Levine, Carol, et al., “The Limitations of “Vulnerability” as a Protection for Human Research Participants”, The American Journal of Bioethics (2004) 4.3: 44–49. Liu, Katherine A., and Natalie A. Dipietro Mager, “Women’s Involvement in Clinical Trials: Historical Perspective and Future Implications”, Pharmacy Practice (2016) 14.1: 708. Luna, Florencia, “Elucidating the Concept of Vulnerability: Layers Not Labels”, IJFAB: International Journal of Feminist Approaches to Bioethics (2009) 2.1: 121–139. Mackenzie, Catriona, Wendy Rogers, and Susan Dodds, eds., Vulnerability: New Essays in Ethics and Feminist Philosophy, Oxford University Press, 2014. Mackenzie, Catriona, “The Importance of Relational Autonomy and Capabilities for an Ethics of Vulnerability”, Vulnerability: New Essays in Ethics and Feminist Philosophy (2014): 33–59. Maitra, Ishani, and Mary Kate McGowan, Speech and Harm: Controversies Over Free Speech, Oxford University Press, 2012. Morondo Taramundi, Dolores, “Un nuovo paradigma per l’eguaglianza? La vulnerabilità tra condizione umana e mancanza di protezione (A New Paradigm for Equality? Vulnerability Between Human Condition and Lack of Protection)”, in Brunella Casalini and Orsetta Giolo, Lucia Re, Vulnerabilità: etica, politica, diritto (Vulnerability, ethics, politics and law), IF Press, Roma, 2018. Okin, Susan M., Is Multiculturalism Bad for Women?, Princeton University Press, Princeton, 1999. Peroni, Lourdes, and Alexandra Timmer, “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law”, International Journal of Constitutional Law (2013) 11.4: 1056–1085. Pinto, Meital, “What Are Offences to Feelings Really About? A New Regulative Principle for the Multicultural Era”, Oxford Journal of Legal Studies (2010) 30.4: 695–723. Raz, Joseph, The Morality of Freedom, Clarendon, Oxford, 1986. Re, Lucia, “Introduzione. La vulnerabilità fra etica, politica e diritto” (Introduction. Vulnerability between ethics, politics, and the law), in Brunella Casalini, and Orsetta Giolo, Lucia Re, Vulnerabilità: etica, politica, diritto (Vulnerability, Ethics, Politics and Law), IF Press, Roma, 2018. Réaume, Dénise, “Individuals, Groups, and Rights to Public Goods”, University of Toronto Law Journal (1988) 38: 1–27. Sandel, Michael, Public Philosophy: Essays on Morality in Politics, Harvard University Press, Cambridge, MA, 2006.

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Sartre, Jean Paul, Critique of Dialectical Reason, translated by Alan SheridanSmith, Verso, London and New York, 2004. Shachar, Ayelet, Multicultural Jurisdictions: Cultural Differences and Women’s Rights, Cambridge University Press, Cambridge, 2001. Shapiro, Ian, and Will Kymlicka, eds., Ethnicity and Group Rights, New York University Press, 1997. Spelman, Elizabeth, Inessential Woman: Problems of Exclusion in Feminist Thought, Beacon Press, 1988. Standing, Guy, The Precariat: The New Dangerous Class, Bloomsbury Academic, London and New York, 2011. Stone, Alison, “Essentialism and Anti-essentialism in Feminist Philosophy”, Journal of Moral Philosophy (2004) 1.2: 135–153. Taylor, Charles, Philosophical Arguments, Harvard University Press, Cambridge, MA, 1995. Waldron, Jeremy, The Harm in Hate Speech, Harvard University Press, Cambridge, 2012. Wall, Edmund, “The Problem of Group Agency”, The Philosophical Forum (2000) 31.2: 187–197. Wallerstein, Immanuel, World-Systems Analysis: An Introduction, Duke University Press, Durham, 2004. Wiedlitzka, Susann, “Hate Crime Legislation”, in B.M. Huebner (ed.), Oxford Bibliographies in Criminology, Oxford University Press, New York, 2016, https://doi.org/10.1093/OBO/9780195396607-0206. Winkler, Adam, “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts”, Vanderbilt Law Review (2006) 59.3: 793–872. Witt, Charlotte, “Anti-Essentialism in Feminist Theory”, Philosophical Topics (1995) 23.2: 321–344. Wolbring, Gregor, “The Politics of Ableism”, Development (2008) 51.2: 252– 258. Woodly, Deva, “Seeing Collectivity: Structural Relation Through the Lens of Youngian Seriality”, Contemporary Political Theory (2015) 14.3: 213–233. Young, Iris Marion, Justice and the Politics of Difference, Princeton University Press, Princeton, 1990. Young, Iris Marion, “Gender as Seriality: Thinking About Women as a Social Collective”, Signs: Journal of Women in Culture and Society (1994) 19.3: 713–738. Zanetti, Gianfrancesco, Filosofia della vulnerabilità. Percezione, discriminazione, diritto (A Theory of Vulnerability: Perception, Discrimination, Law), Carocci, Rome, 2019.

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CHAPTER 5

Group Vulnerability and Parallel Dimensions

Introduction As mentioned in the previous chapter, group vulnerability can be understood, at least in principle, according to two different paradigms. In a first sense, it indicates a condition determined by systemic forms of violence or oppression, directed towards certain people because they are perceived as belonging to a group. Within this model, group vulnerability is linked to systems that produce marginalisation, discrimination, power asymmetry, exclusion, to the detriment of (what is perceived from the outside as) a group, creating a kind of group identity also simply by way of the awareness of the group members that they are exposed to a same system of oppression. In a second perspective, group vulnerability does not refer to identity traits, or these traits are negligible, since what matters is only the similar positioning of several individuals within a given context, which affects their possibilities of action, and above all, their ability to protect themselves from risks and uncertainties and to cope with the consequences of such risks and uncertainties. Now, at least in the first case, group vulnerability presents similarities to other concepts, that are best kept separate: I am referring to the categories of minority, of discrimination, and to processes of victimisation that can affect groups as well as individuals. The aim of this chapter is therefore to highlight both similarities and differences between the category © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 F. Macioce, The Politics of Vulnerable Groups, Critical Political Theory and Radical Practice, https://doi.org/10.1007/978-3-031-07547-6_5

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of group vulnerability and these three dimensions: this does not exclude possible overlaps, which are of course possible and present, but it highlights the conceptual autonomy of each dimension, and consequently the different strategies of protection. For instance, it is possible that a vulnerable group is also discriminated against, or that it is vulnerable because it is discriminated against, but the two dimensions are not reciprocally reducible. Similarly, it is certainly true that a minority is, very often, also a vulnerable group, but it does not have to be that way, nor can group vulnerability be reduced to the condition of vulnerable minorities. In this chapter, I will therefore discuss these dimensions and their relation to the condition of group vulnerability. In the first part, I will discuss how processes of collective victimisation shape the vulnerability of a group and overlap with it. In the second part, I will analyse the notion of minorities to understand to what extent this condition translates into a condition of group vulnerability, and whether the protection of minorities is in itself adequate to deal with issues of group vulnerability, or not. Finally, I will devote the last part of the chapter to a discussion of the relationship between discrimination and group vulnerability, showing how closely they are connected and, at the same time, how profoundly different they are.

Vulnerable Groups and Collective Victimhood The relationship between vulnerability and victimhood is complex and (often) misunderstood. Most philosophies of vulnerability, for example, reject the proximity between these two terms: Martha Fineman (2008, 9– 10),1 who does associate vulnerability also with damage, injury, adversity, refuses to link it to victimhood because to argue that vulnerable subjects are the “victims” of something would be counterproductive. To do so would be actually functional to the dominant (liberal) paradigm of the autonomous, independent, economically productive subject, which her understanding of vulnerability as an intrinsic condition aims at subverting. Also Mackenzie, Rogers, and Dodds, in their book on vulnerability, specify that one of the objectives of a theory of vulnerability is precisely the critique of those approaches that associate this dimension with the 1 Fineman argues that “Vulnerability is typically associated with victimhood, deprivation, dependency, or pathology (…) In contrast, I want to claim the term ‘vulnerable’ for its potential in describing a universal, inevitable, enduring aspect of the human condition that must be at the heart of our concept of social and state responsibility” (pp. 9–10).

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condition of victims, and therefore with incapacity and lack of power or agency, because those approaches reinforce the processes of discrimination or paternalistic interventions that are the causes of vulnerability (Mackenzie et al. 2014, 16). This insistence on the non-reducibility, or even the opposition, between vulnerability and victimhood, is based—Cole rightly notes (2016, 270)—on an unnecessary construction of the relationship between agency and victimhood in oppositional terms, as if being a victim necessarily implied a lack of power and agency or passivity. And yet, Cole continues, the problem is not so much in the use of the category of “victim”, or its juxtaposition with vulnerability, but precisely in the adoption of this binary active/passive logic, and in the idea that weakness and passivity are negative and humiliating. We should therefore not reject the proximity between vulnerability and victimhood, rather understanding “victimhood” in a non-pathological or debilitating sense: “we must question and resist the impulse to delete the term ‘victim’ from our political vocabulary. Instead, we should reclaim it and redeploy it - progressive politics needs it” (Cole 2016, 271). At the same time, the fact that the condition of victims can be approximated to that of vulnerable subjects does not exclude the risks feared by many scholars, and this especially when group vulnerability is in question: after all, it is with regard to the labelling of populations and groups as vulnerable, and to the victimising meaning of this term (as weak or passive groups, lacking the capacity to act to protect their interests), that processes of stigmatisation and paternalistic interventions have been produced. The aim of these pages, therefore, is to reflect on the processes of collective victimisation, i.e. those processes that shape the condition of victims for groups, rather than for individuals, to show the elements of proximity to the condition of group vulnerability and, at the same time, the differences. This is not to deny the usefulness of an association between these terms or categories, but rather to show how cautiously and with what limits such a juxtaposition can be made. The issue of collective victimhood, and the mechanisms through which a collective awareness of the condition of victims is shaped, outlined and consolidated, have been studied with great attention both with reference to traumatic events of the past (Vollhardt 2012), and to so-called intractable conflicts: conflicts in which the parties involved invest substantial material and non-material resources and which last at least 25 years, are characterised as being total, protracted, violent, central, and perceived

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as being unsolvable and of zero-sum nature (Bar-Tal 2007; Bar-Tal et al. 2009). The memory of the trauma, and its continuous re-elaboration, initiate a process of identity construction that shapes the sense of selfesteem, of continuity, of the particularity of a given community, also playing the role of an element of belonging to the community itself (Hirschberger 2018; Vignoles et al. 2006). In this perspective, events such as the extermination of the Jews during Nazism (Mazur and Vollhardt 2015), or Apartheid in South Africa (Madlingozi 2007), or the events of the Desaparecidos in Argentina (Luppi 2019), and many others, are all examples of traumatic experiences that are kept in the memory—because of their objective dramatic nature— playing, among other things, an identity role: the experience of having been victims of such atrocities goes far beyond the individual dimension and the experience of individual victims, but becomes an element in the construction of a collective identity that continually refers to this experience as a source of meaning and belonging. But also natural events, cataclysms such as eruptions or earthquakes, can play a similar role: beyond a victim-perpetrator logic, they may contribute to the construction of group identity in relation to the traumatic event. Similarly to what happens at the individual level, also at a collective level trauma imply the need to rethink and reconstruct the group’s identity, its position in the world, and its understanding of relations with otherness: how communities shocked by a traumatic event understand their place in the world, as well as their relations with other groups and other communities, are deeply shaped by this event, which becomes the catalyst for these processes of self-understanding at the community level (Vollhardt 2012, 136). For instance, it may happen that a traumatic event is not only the cause of higher rates of stress, but also that generations subsequent to the victims manifest feelings of vulnerability, humiliation, and fear, even concerning events of the present, as if the memory of the past trauma amplified the sense of exposure to risk with respect to the present (Canetti et al. 2018). It may also be—and once again the case of the Holocaust is paradigmatic—that the trauma of the past makes the group more vulnerable insofar as it makes the belonging to the group itself less justifiable and comprehensible for its members: the enormous amount of reflection on theodicy and the “silence of God” for the extermination of the Jews (Néher 1981; Jonas 1987) testifies, among other things, to the need to

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rethink the reasons for the religious identity of Judaism, and the intensity of the vulnus that the experience of extermination, even for later generations, represented for the reasons and elements of the identity itself (Morgan 2018). Finally, the trauma at the origin of victimhood can be interpreted as a form of violence (except, of course, in the case of natural events) against a specific group of people, who are thus made vulnerable, consisting of a sum of discriminatory, marginalising, exploitative, and violent acts committed against persons belonging to that group. However, if on the one hand collective trauma can jeopardise the permanence of the group itself, and make the belonging to the group be perceived as something risky, on the other hand, they can generate positive effects on the identity of the group itself: the memory of the trauma represents a factor in the construction of identity, an element that consolidates a historical identity and favours social cohesion, at least as a commitment of individuals towards the group itself (Hirschberger 2018; Alexander et al. 2004). A social group whose identity is built (also) on the memory of a past trauma does not necessarily manifest elements of collective vulnerability: such elements may certainly be present, but in a contingent way, and in any case next to elements that represent factors of development, or of cohesion, or in any case that cannot be placed in a framework of particular vulnerability. For instance, although there are elements of proximity between the condition of group vulnerability, on the one hand, and the processes of victimisation linked to intractable conflicts, consistent elements suggest that these categories should be kept distinct. The element of greatest closeness is the fact that group vulnerability—understood as exposure to a particular type of risk, in this case—becomes an identity factor, within a narrative that constructs for a group the role of victim, and assigns to the other group the role of perpetrator. In this sense, some emphasised not only the role played in the dynamics of intractable conflicts by the mobilisation of psychological forces and resources in the population (Coleman 2003; Burton 1990), such as to make the conflict inseparable from its own daily lives, but also argued the importance of processes aimed at incorporating the “culture of conflict” into the group’s identity (BarTal 2004), and at modelling these identities around feelings of physical annihilation, destruction, and death. The work of Daniel Bar-Tal, a leading scholar of intractable conflicts, highlights some central elements of these dynamics. Developing what he defined as the Masada syndrome or the “siege mentality” (Bar-Tal and

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Antebi 1992, 633) (the idea, shared by a group of people or by a community, of being constantly under attack, oppressed, and subject to constant threats from a hostile environment), Bar-Tal develops an interpretative framework of the psychology of groups in the contexts of intractable conflicts. Within this framework, three elements shape the identity of the groups involved, to make it compatible with the conflict situation or functional to it: the construction of collective memory, the maintenance of an ethos of conflict, and a collective emotional orientation (Bar-Tal 2013, 247). Collective memory is a representation of events or facts of the past that is functional to the present needs of a community living in a conflict situation: it may therefore not be fully consistent with the historical truth, while it is a narrative of the past—whether popular or official—that is functional to present needs. The culture of conflict (literally, the ethos of conflict) is a kind of ideology that stems from such a representation of the past, and provides an epistemic basis for the action of individual group members, enabling them to deal with the consequences on their lives of a conflict that lasts for years or decades (Bar-Tal et al. 2009, 240).2 In both these aspects, the sense of victimhood is crucial for the groups involved: the awareness of being victims of the opposing group, of being exposed to the risk of annihilation, of being vulnerable as a group (and not only as individuals) is essential to the construction of both the collective memory and the ethos of conflict. Finally, as a third aspect, Bar-Tal emphasises the importance of a collective emotional orientation by the members of the group: in the Israeli–Palestinian conflict—the main topic of Bar-Tal’s analyses and a paradigmatic case of the category of intractable conflicts— the feeling of fear, for example, plays a crucial role (Bar-Tal 2007, 1439). Even though each member of the group may be positioned differently 2 They argue (p. 240) that in the context of intractable conflict, such an ethos emerges with eight traits: societal beliefs outline the justness of one’s own goals, indicate their crucial importance, and provide explanations and rationales for them. Societal beliefs about security highlight the importance of both personal safety and national survival, at the same time outlining the conditions for their achievement. People tend to attribute positive traits, values, and behaviour to one’s own society, in an ethnocentric manner. The collective sense of one’s own condition produce a self-presentation as a victim, especially in the context of the intractable conflict. Opponents are delegitimised, also through beliefs that deny the adversary’s humanity. Attachment to the country and society generates a form of patriotism that propagates loyalty, care, and sacrifice. Societal beliefs about unity stress the importance of ignoring internal conflicts during intractable conflict in order to join forces in the face of the external threat. Finally, societal beliefs about peace make it the ultimate desire of the society.

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with respect to the concrete risk represented by the conflict (because some people are less exposed, less involved, physically distant, more protected, etc.), some feelings, such as fear, are shared: these feelings are experienced by the group independently of the condition of the single individual (Bar-Tal et al. 2009, 239). The perception of vulnerability, therefore, is meta-individual: people who identify themselves with the group, or who belong to it, perceive a condition of vulnerability that goes beyond individual vulnerability, and that is on the one hand socially constructed, and on the other hand, conveyed through emotions shared by the group itself. While there are undoubtedly elements of proximity, or interdependence, between the category of group vulnerability and collective victimhood, elements of strong distinction remain. Not only because, clearly, not all vulnerable groups are at the same time exposed to processes of victimisation, but also because not all groups that are exposed to such processes can actually be considered vulnerable. Vulnerability, for these groups, is above all a kind of self-perception, functional to the construction of conflicting collective identities: it is therefore not an objective condition, or at least not necessarily. The political dimension of victimhood, or more precisely the twisting of victimhood for political purposes (linked to the strengthening of identity, but in some cases also to war), makes the relationship with the category of vulnerability highly problematic. As mentioned in the previous chapters, group vulnerability can be interpreted—at least in a first sense—as a condition determined or linked to systemic forms of violence or oppression, directed towards certain people as members of a group: now, what is not compatible with this definition is the use of vulnerability for identity purposes, in the framework of a friend–enemy distinction, which is considered functional to the conflict situation. The collective memory, and the shared emotional orientation, are used to reinforce representations of identity within this binary logic, whereby the distinction between insiders (victims) and outsiders (perpetrators) is clear and immediately perceptible. In this sense, for example, one can understand why a group may continue to understand itself as a victim despite the fact that the international community does not recognise such a victimhood, or even considers this same group as a perpetrator (Bar-Tal et al. 2009, 240). Even more nuanced is the situation in which some vulnerable groups (or subgroups) find themselves playing the role of both perpetrators and victims: if one considers the condition of children recruited by armed forces, it has been pointed out by some scholars that while the

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status of vulnerable victims is justified by their limited capacity to act, the description in terms of passive victims without responsibility is not always adequate to understand their reality (McEvoy and McConnachie 2012, 531; Drumbl 2012). In all these cases, therefore, the presence of elements of undeniable closeness between the category of group vulnerability, on the one hand, and the condition of groups that have suffered or experienced processes of victimisation, on the other, is not sufficient to justify a perfect overlap between these categories: although they may be linked and mutually conditioned, they are independent of and irreducible to each other.

Vulnerable Groups and Minorities At first glance, the relationship between group vulnerability and minority status seems fairly straightforward: a minority is, as such, exposed to a power asymmetry with respect to the majority, and therefore per se vulnerable. However, such relationship is less linear than it might appear: not only because not all minorities are actually vulnerable—think of the elites, that, although minorities on a factual level, do not find themselves in a condition of vulnerability or absence of power—but also because even non-minority groups can be vulnerable, regardless of their numerical consistency: the black majority in South Africa, during Apartheid, could certainly be qualified as a vulnerable group, but not as a minority. It is, therefore, necessary to analyse the connections between these two dimensions, and to understand to what extent, and under what conditions, the condition of minority translates into that of group vulnerability. At the same time, it is necessary to understand whether the protection of minorities meets the needs linked to group vulnerability, or whether the necessary strategies of protection are independent, and oriented towards different goals. If Susan Moller Okin is right—and she is right—the protection of minorities can in some contexts even be counterproductive, to aggravate the vulnerability of some people, or some categories/groups of people: from a feminist point of view, she argues, minority group rights aren’t necessarily an acceptable solution, because sometimes they may exacerbate the problem. In the case of a patriarchal minority culture, which is settled in the context of a less patriarchal culture, it is very difficult to find arguments which, on the basis of the right to freedom or self-respect, would suggest that the women members of such a group have an interest in its preservation. On the contrary, it is reasonable to

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think that they would be much better off if the patriarchal culture in which they were born and lived were not preserved, and the members of the group were assimilated into the less sexist surrounding culture (Okin 1999, 22). The concept of minority is indeed much debated and difficult to define (Hannum 2007; Pentassuglia 2002), as well as potentially infinite, because the possible elements of distinction are infinite: one can belong to a minority as a man or as a woman, as a religious person or as an atheist, as an illiterate person or as a university graduate. However, when we refer to a minority, we tend to highlight the condition of groups that, (a) identify themselves by particular ethnic, linguistic, or religious ties; (b) because of these ties are different from the rest of the community of the country under consideration and, according to the well-known definition of Capotorti, c) manifest—even implicitly—a feeling of solidarity, tending to preserve their culture, their traditions, their religion, or their language (Caportoti 1977, 9). In this perspective, the concept of minority can be variously declined as a national, ethnic, linguistic, cultural, religious minority, excluding other types of minority groups with less or no identity characteristics (Deschenes 1985). However, even with these limitations, Capotorti’s definition highlights three characteristics of the minority condition, which may allow its application beyond the cases indicated: minorities are in fact groups of people linked to each other, and distinct from people external to the group, by objective elements (here language, religion, ethnicity, but others are of course possible), subjective elements (a sense of solidarity), and by a condition of powerlessness or by a power asymmetry with respect to the “majority” (numerical inferiority matters, but also the condition of subjugation) (Jackson-Preece 2014, 5). Of these traits, at least two are common to those used to define vulnerable groups. In particular, the fact that belonging to a minority group is understood in terms of identity is first of all relevant: minority identity refers to a group of people distinguished—with respect to the majority— by (real or presumed) characteristics or attributes of that particular group, and by a common collective denomination, whether that group identity is used (and perhaps claimed) by the people so designated, or only by others regardless of the will of the individuals. For instance, this is the case of “gypsies”, “nomads”, and even—with a more cultured and benevolent label—Roma or Sinti. Although they should be understood as a galaxy of minorities, they are lumped together within the same minority group, to include in a single category a fairly composite variety of people, with

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considerable cultural differences, whose only trait is, perhaps, the negative stigmatisation by those who did not consider themselves Gypsies (Piasere 2004; Bhopal and Myers 2008; Brodersen et al. 2021). Similarly to what I’ve said for vulnerable groups, I’m not arguing that there is a minority identity, something like an essential trait around which it is possible to construct the identity of a minority group, and by reason of which to define the membership of individuals. More simply, I mean that the identity of the minority group (like, precisely, that of a vulnerable group) can be socially constructed and attributed, at least to the extent that such an identity is used from outside (by the wider community, the media, or even just linguistically) to designate a group and the people who belong to it. Whether such an identity does exist or not, from this point of view, it is not so relevant: what matters are the effects of such ascription on the lives of the members of the group, legally, politically, socially, and so on. It is known that the identity of the black minority in the United States has been socially constructed, at least in part: the effects of the one-drop rule are widely documented and discussed, precisely concerning the construction of an identity that does not exist in itself. And yet, the fact that this identity is the product of social construction and not an ontological trait, while crucial from a theoretical point of view, does not prevent it from being factually (politically and legally) used and producing a minority, grouping people around a trait, however small (a drop of blood, in this case) (Davis 1991). The second aspect, which is as relevant for minority groups as for vulnerable groups, is the condition of powerlessness, or the asymmetry concerning the access to power, its exercise, and the control over those who are in power. A minority is therefore not only a numerically inferior group (as could be, for example, people with a PhD), but a group whose possibilities of access to power are limited, or derisory: the group identity, in this case, may become a factor of disesteem, or of exclusion and marginalisation, a disempowering element for individuals. Francesco Capotorti uses the category of “non-dominance”, which is also indicative of this condition, and which is a relative or positional condition: a minority is a group of people characterised, with respect to the majority, by an absence or limitation of power, a condition of exclusion concerning the possibilities of access that the majority enjoys. In communities aimed at defending the privileges of the insiders, there is no much room for the outsiders: for this reason, as some argue, the space of permanent minorities in European democracies is rapidly shrinking, highlighting the

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condition of disempowerment to which minorities are kept (Fiorita et al. 2010, 8). The combination of these elements makes a minority very close to a vulnerable group, at least where this is understood as identity-based. Just as a vulnerable group is a group of people who experience forms of violence or systemic oppression, and who live conditions of marginalisation, discrimination, asymmetry of power, exclusion, because they belong to a group, in the same way, a minority finds itself in conditions of “unequal citizenship”, being excluded from the substantial enjoyment of many political and civil rights that it is formally recognised as having as part of the larger community (Castles 2005, 689). People belonging to minority groups are mostly excluded from political and civil life, and therefore have fewer resources to cope with their difficulties and needs: whether it is to protect a certain tradition, or to claim forms of recognition, or to ask for policies of economic support, or whatever, those from a minority position experience a lesser chance of obtaining what they need (Pinto 2015, 523). It must be stressed that, beyond the factual scarcity of political and— possibly—legal resources, the position that minority groups take in the face of exclusion and inequality can be very different. Such a difference depends on whether they are “minorities by force” or involuntary associations, groups that are created by outside designation, mainly for negative purposes, and “minorities by will”, i.e. groups who think of themselves as possessing a distinct cultural identity and who evidence a desire to protect it (Thornberry 1991, 9–10). In the first case, the opposition between the majority and the minority results in forms of discrimination against the members of the minority, concerning numerous aspects and sectors, and therefore produces demands for greater equality and the elimination of such differential treatments. In the second case, on the contrary, the opposition derives from resistance to attempts by the majority to obscure the specific difference and identity of the minority group, imposing egalitarian treatment from the point of view of the majority itself: such an opposition, therefore, does not produce claims for equal treatments but demands for recognition, as opposed to attempts of assimilation (Wheatley 2002). Because of this distinction, the relationship between vulnerable groups and minorities is anything but linear: in the first case—minorities by force—the minority group can also be considered vulnerable insofar as it is marginalised and deprived of real possibilities of access to power. In the second case—minorities by will—vulnerability

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could derive from the lack of recognition of certain differential traits, and the absence of specific protection of these traits, provided that these traits are effectively considered essential by the members of the group itself. In other words, while in the first case the discrimination suffered by the group affects the members of the group (similarly to what has been said for vulnerable groups), in the second case it is not necessarily so: the vulnerability of the group is experienced by its members only if, and to the extent to which, they perceive the group’s identity traits as effectively crucial for them individually, and not socially recognised or protected by the legal system. Therefore, the protection of minorities and vulnerable groups cannot be overlapped. To be more precise, it can take similar forms only if, and to the extent that, a vulnerable group is also a minority, and vice versa. The protection of minorities, as mentioned above, aims at more than non-discrimination, thereby removing rules and policies from which discriminatory consequences may derive: it may also imply the adoption of measures in favour of minorities aimed at preserving their distinctiveness.3 Now, while the protection of substantive equality through promotional interventions is certainly suitable for protecting vulnerable groups, the promotion of differential traits is merely possible: it depends on the factual coincidence of the situation of vulnerability with the presence of identity factors that are relevant to the members of the group, and whose non-recognition is at the origin of the condition of vulnerability. One area in which the coincidence between vulnerability and minority status appears more direct is that of clinical research. For instance, ethnic minorities are typically included in the lists of vulnerable groups in clinical trials, but this leads to ambivalent consequences: on the one hand, this label of vulnerability motivates additional protection and precautionary measures, but on the other hand it contributes to an under-representation of ethnic minorities in clinical trials (Ranganathan and Bhopal 2006, 44; Macioce 2019). Therefore, belonging to a minority may be a source of vulnerability for an individual in the research context, insofar as the research team might lack information on health-relevant characteristics linked to it, for instance in terms of propensity to certain diseases. At the same time, the uncertain applicability of research results to minority populations, and the consequently reduced access to treatment, may also be

3 Italian Constitutional Court, Judgement no. 88 of 2011.

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considered a vulnerability factor (Bartlett et al. 2005; Bhopal 2014):given the higher rates of morbidity and mortality among ethnic minorities compared to the majority population, it has been correctly pointed out that this lack of representation in research produces a particular vulnerability of minorities in terms of decreased access to interventions and relative undertreatment (Rogers and Lange 2013, 2141). It is not always the case, however, that minority status is in itself the true source of vulnerability, even if it is understood—continuing with the example just given—as depending on an under-representation of ethnic minorities in clinical trials: in fact, the picture is much more complex and multifaceted. While it is indeed true that ethnic minorities are underrepresented in such contexts, with the aforementioned outcomes in terms of vulnerability, there is a risk of the “post hoc propter hoc” fallacy. The non-participation of members of a minority in clinical trials is related not so much to the minority status per se, but (to a large extent) to the limitations and difficulties that members of such groups may experience, in various ways: lack of opportunities to participate offered by research teams, worse health conditions—also linked to less healthy living conditions for economic reasons—circumstantial reasons such as lack of flexibility in childcare or employment preventing participation in research, travel difficulties, etc. But barriers to access can be also identified in administrative obstacles, language barriers, conditions of unfamiliarity with practices in health care, gaps in health literacy, and so on (Rechel 2013; Montesi et al. 2016; Macioce 2019, 231). Consequently, the link between group vulnerability and minority status, if any, is a mediated one: minority status is a condition that may translate into (or be accompanied by) a lower availability of social, legal, and personal resources, and this may, in turn, determine a vulnerability for subjects belonging to the minority group. It is therefore important not to think of the link between minority status and vulnerability as direct and bidirectional, because in doing so one risks producing conditions of vulnerability that would otherwise not exist. To remain in the health context, the health personnel or the research team must be aware that the low participation of minorities has primarily specific social and legal causes, and that labelling a minority group or population as vulnerable could even be counterproductive. The just and understandable objective of avoiding the exploitation of minority populations for research purposes may lead—for the reasons mentioned above—to an under-representation of such populations in clinical trials, and produce an actual vulnerability in

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terms of decreased access to interventions and undertreatment. As Rogers and Lange rightly affirm, there is no evidence that members of minority groups are less able to give informed consent than members of majority populations. If information processes take place in the relevant languages, and the appropriate information is provided, there is no reason to think that minority groups lack capacity to consent (Rogers and Lange 2013, 2142). It is not by imposing a more restrictive regime on the enrolment of minority members in clinical trials that their vulnerability is reduced, rather by removing (social and legal) barriers to such participation, and enhancing the opportunities offered and the capabilities of individuals. At the same time, there is some reason to consider minorities as vulnerable groups, and this should be noted. If in general, these groups are underrepresented in clinical trials, the participation of members of minority groups in trials in the “first in human” phase is unbalanced in the opposite direction: the percentage of participants belonging to ethnic minorities is much higher than the percentage of that same minority in the general population (Fisher and Kalbaugh 2011). The relationship between minorities and vulnerable groups is therefore ambivalent, and in any case not direct. Minorities can certainly be vulnerable groups, and in many cases they are indeed, but this is not necessarily so, nor does it happen in the same way. Above all, minorities claim to be protected through specific legal instruments and policies, mostly stated in constitutional texts or international treaties, which however aim at both the protection of minority identity and the contrast of forms of discrimination. These instruments are therefore suitable for reducing the vulnerability of the group only when this vulnerability depends on such factors, or when the minority condition is in itself the factor at the origin of the group’s vulnerability, or eventually when the specific condition of the minority is predictive of conditions of vulnerability shared also by non-minority groups: in such cases, the discriminated minority plays the role of the miner’s canary, which alerts a problem that could soon turn out to be harmful even for those who do not identify with that minority (Zanetti 2019, 25; Guinier and Torres 2009). Minorities are not only groups susceptible to being discriminated against, but they are also places where discrimination that other groups may suffer from occurs with greater intensity or earlier. In other cases, as mentioned, the relationship between minority status and vulnerability is much more nuanced and ambivalent.

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Vulnerable Groups and Discrimination The conclusion of the previous section highlights, if proof were needed, the link between vulnerability and discrimination. Such a link was evident in the definitions of vulnerable groups already introduced and discussed: if power structures, cultural mechanisms, or systems of resource distribution, create heightened conditions of vulnerability against those who are perceived as groups of individuals, it is clear that forms and conditions of discrimination, which are the most evident manifestation of such systemic oppression, are at stake. However, group vulnerability does not come down to this: it can also be seen in a more subtle but not less conditioning sense, as the positioning of several individuals within the same context, such as to affect their possibilities of action, their ability to protect themselves from risks and uncertainties, and their ability to cope with the consequences of such risks. In this case, the link between group vulnerability and discrimination is less strong, although discriminatory profiles are still present and detectable, since a vulnerable group may be exposed to discriminatory practices and policies, and less able to cope with them, precisely because of this vulnerability. Therefore, I will analyse in this section the relationship between discrimination and group vulnerability, not only to ascertain the extent to which there is a relationship between these categories, but also to determine whether and to what extent the protection afforded by anti-discrimination law, at various levels, is adequate to meet the needs of vulnerable groups. To this end, I will take into consideration the negative meaning of discrimination, i.e. discrimination against, and not the more neutral meaning of discrimination as the result of mere discernment, and of assigning differential treatment due to different conditions/characteristics, nor the positive meaning of discrimination in favour of. In other words, I do not enter into an examination of what are the reasons for a discriminatory act, in order to assess its possible justifications: I place the analysis downstream of this question, and I discuss whether, and to what extent, unfairly discriminatory acts are also productive of vulnerability, whether group discrimination and group vulnerability are two overlapping dimensions, and finally whether anti-discrimination legislation is an adequate response to group vulnerability. If we look at some of the normative formulations of the prohibition of discrimination (Hellman and Moreau 2013; Khaitan 2018) we can

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see, even on first analysis, an undoubted closeness between the condition of group vulnerability and discrimination. Consider, for example, Article 21, Charter of Fundamental Rights of the European Union: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited”; similarly Art. 14 of the ECHR: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”; or consider the texts— of secondary legislation—that deal with discrimination based on ethnicity and race,4 or disability,5 or age, disability, religion, or sexual orientation in employment,6 or gender in access to goods and services.7 In regulating and punishing discrimination, these instruments refer more or less directly also to the group dimension, both in an identity-based perspective (with all the caveat already mentioned) and in a positional one. In other words, the phenomenon of discrimination, at least at a normative level, is understood as being relevant not only at an individual level, but also at a collective level, or at least as being relevant for individuals also when they are affected by direct discrimination against groups or categories they belong to.

4 The Racial Equality Directive (2000/43/EC), Article 2(1)(a). 5 So the Principle 17 of the European Pillar of Social Rights, dedicated to people with

disabilities: “People with disabilities have the right to income support that ensures living in dignity, services that enable them to participate in the labour market and in society, and a work environment adapted to their needs”. See also the new European strategy on the rights of persons with disabilities for 2021–2030, at https://ec.europa.eu/info/sites/ default/files/social-summit-european-pillar-social-rights-booklet_en.pdf. 6 Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), (2006/54/EC), Article 2(1)(a); and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. 7 Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, Article 2(1)(a).

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From a conceptual point of view, discrimination can be considered—or can also be—an act that affects certain individuals based on a characteristic peculiar to the group to which such persons belong, i.e. on account of a (perceived) differential element, typical of a group or category, which is deemed socially relevant. More precisely, discrimination is an act, a policy, a social practice that entails differential treatment for people, in a negative sense, based on their (perceived) membership of a group with socially relevant characteristics, i.e. a trait that is in some way significant for social interaction (Lippert-Rasmussen 2014, 26–30). In this sense, historical experience confirms the lists contained in the aforementioned legal texts, because it shows how discrimination has occurred not against generically identified groups of people, but against groups that share factors such as race, religion, nationality, ethnic identity, sexual orientation, and other factors linked to aspects considered, in one way or another, socially salient. That some factors—such as those listed—matter more than others, at least historically, is undeniable. Although it is conceivable, discrimination based on eye colour is certainly irrelevant compared to discrimination based on skin colour, as well as discrimination based on sexual orientation. According to some scholars (Baber 2001, 53), this difference can be traced back to the capacity of a given trait (which is considered socially salient) to predict or explain behaviour, beliefs, or other psychological characteristics of people, thus showing itself to be socially relevant. According to others (Lippert-Rasmussen 2014, 30), the relevance of the trait with reference to which the group is identified depends not so much on how much it influences the behaviour of people, but on how relevant that trait is from the point of view of general social interaction, i.e. in relations with other individuals, regardless of how significant that trait is for the person associated with it. Even if that trait were not particularly significant from a subjective point of view, in short, it would be impossible for that person to ignore the socially salient trait in his or her social interactions. In what sense, therefore, is discrimination linked to group vulnerability? It can be argued that discrimination, when it is understood as negative differential treatment towards individuals because of their belonging to a category or group, which is targeted on the basis of a socially salient trait, necessarily highlights a situation of vulnerability for the group as a whole, even if such a vulnerability may have different characteristics. First, it can arise from subordination: a group is discriminated

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against because it is subaltern, marginalised, and under-represented, i.e. it is not able to (or does not have the political force to) represent its interests and needs in the public arena (Hellmann 2008, 13). A minority, from this point of view, can be both considered a vulnerable group and at risk of discrimination, precisely because—without anti-discrimination policies— the majority rule will fatally lead to the downplay of the group’s interests. Second, the salient characteristic of a group may be the object of devaluation and denigration in the social context, regardless of the numerical consistency of the group itself (Hellmann 2008, 13): in this sense, persons belonging to a group, which is identified by such a characteristic, find themselves in a condition of vulnerability, because they are deprived of what we might call, à la Rawls, the social bases of self-respect, regardless of the numerical consistency of the group itself, but simply because they are discriminated against. For instance, gay or lesbian people, or people with disabilities, can be considered as belonging to vulnerable categories insofar as they are subject to discrimination and humiliation, thus made vulnerable because of discriminatory acts and policies that affect them explicitly or implicitly. A third possibility is to identify both the vulnerability, and the condition of those who deserve anti-discrimination protection, with the relative disadvantage of individuals belonging to a given group, compared to the generality of subjects: it is not the socially salient trait that matters, nor the history of discrimination of a given group, rather it is the relative position of a group compared to another homologous one, from which it differs by that specific trait (Khaitan 2018, 51; Consiglio 2020, 61). Discrimination against the elderly (Butler 1980, 8–11) can be an example of this third model: in this case, people share analogous positions of disadvantage (in the job market, or in the access to treatments, for instance) that is not necessarily motivated by a discriminatory intent on the part of the discriminating group, and without there being a real or fictitious identity trait at the origin of the processes of marginalisation and devaluation: and yet, it is still a disadvantage, compared to the treatment received by other social groups, which are, however, different in terms of age. In this case, people can both be vulnerable and discriminated against, but the relationship between vulnerability and discrimination is not unidirectional, because they can implement each other. This third perspective, among other things, makes it possible to highlight the closeness between the condition of discriminated groups and group vulnerability in the positional sense, as illustrated above. While

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the condition of subordination, as well as processes of devaluation and denigration, can contribute to an identity-based condition of group vulnerability, in this case, we deal with discriminatory processes that condition the possibilities of action of the people affected by them, as well as the ability to protect from risks and uncertainties, without however being accompanied by forms of devaluation and humiliation based on real or presumed identity traits. In the case of the elderly, for example, people who share a similar position of disadvantage—albeit within a range of subjective variability—are not subject to systemic processes of marginalisation or oppression. Whether they face discrimination at work (Stypinska ´ and Nikander 2018), or discrimination in access to health care and treatment (Wyman et al. 2018), this discrimination doesn’t arise from actual processes of marginalisation and oppression, nor it is motivated by devaluing and humiliating intentions towards the elderly (if not occasionally), and yet they determine a position of objective disadvantage for those who belong (or are considered to belong, regardless of subjective perception) to this category. Additionally, discrimination can accompany group vulnerability (either in the sense of being a determinant of it or in the sense of being determined by it) regardless of whether it takes the form of direct or indirect discrimination. According to a traditional definition, direct discrimination occurs when certain disadvantageous practices or policies are explicitly directed against certain socially relevant groups. Indirect discrimination occurs when such acts are not directed—either explicitly or surreptitiously, knowingly or unknowingly—to disadvantage persons as members of a certain social group, but have the effect of disproportionately and unjustifiably8 disadvantaging such persons. In a similar vein, the ECHR holds that “when a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group”.9 However, whether a group is discriminated

8 See, for example, Griggs v. Duke Power (401 U.S. 424 (1971), where the Supreme Court held that formally race-neutral provisions can have discriminatory effects in practice, regardless of the author’s intention to discriminate. 9 Shanaghan v. U.K. 2001 (Application no. 37715/97), para. 12; see also D.H. e a. c. Czech Republic [GC] (Application no. 57325/00). In the United States, Courts introduced indirect discrimination in Griggs vs. Duke Power (401 U.S. 424, 1974), where “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,

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against directly or indirectly does not change much: systemic oppression directed towards members of a group can occur either as direct discrimination or as indirect discrimination. In other words, while the distinction between these forms of discrimination is relevant in itself and in many specific respects, it seems to me that from the perspective of the present analysis, it is plausible to consider that in both cases discrimination can be accompanied by conditions of vulnerability for the groups that are victims of it. Discrimination, therefore, can either determine vulnerability or be determined by it. In the first case, discrimination can be a factor of vulnerability for a group, which may be discriminated against and excluded from access to political, cultural, economic, and social resources, and therefore is made vulnerable. In the second, discrimination may be the consequence of the group’s vulnerability, in the sense that a group that is vulnerable for being a minority, or for being deprived of resources, may be exposed to discriminatory policies and practices by more powerful groups. Therefore, between vulnerability and discrimination, there is—there can be—a circular relationship, in a self-implementing dynamic: “Discrimination often resembles a snowball rolling down a hill: as a group is discriminated against, they become more ‘disadvantaged or marginalised,’ (…) and thus can be more susceptible to further discrimination” (Chapman and Carbonetti 2011, 727). However, while there are many similarities between discrimination and vulnerability, there are also some substantial differences. First, it should be emphasised that discrimination does not necessarily produce vulnerability, although being morally negative and legally relevant: this is the case, for example, when discriminatory practices are merely occasional, or in cases where discrimination is not structural and/or systemic. In these cases, even if discrimination must be punished because of its unfavourable and arbitrary effects on people affected, it does not produce group vulnerability, but mere conditions of (individual) disadvantage for the victims. On the contrary, a vulnerable group may not be exposed to discriminatory practices or policies, because its vulnerability stems from conditions that are not ascribable to forms of direct or indirect discrimination: the condition of prisoners certainly is a condition of vulnerability, due to the limited resources available to them, but it doesn’t depend (if not in specific cases) cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices” (401 US 430).

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on forms of direct or indirect discrimination. Similarly, the condition of minors, who represent a vulnerable group in many respects, is certainly not linked to discriminatory practices and rules. Second, discrimination relates—whether in its direct or indirect form— to practices or policies that intentionally or factually result in a disproportionate disadvantage to individuals, where such practices are unjustified or unjustifiable. Vulnerability, although it can refer to situations of this kind, can also be rooted in structural elements rather than, as mentioned, in specific practices, actions or policies: it may depend on conditions, facts, and contexts that produce inequalities, by reducing people’s availability of resources and their capacity to protect from risks and uncertainties. Homeless people, for example, can be considered a vulnerable group because they run a greater risk of harm and violence, or of contracting infectious diseases related to their living conditions (the difficulty of social distancing and lockdown during the Sar-Cov2 pandemic is an example of such vulnerability). However, although homeless people can also be victims of discrimination—and they are, very often—this condition is merely possible and not dependent on their being vulnerable Brock 2002): their vulnerability does not depend on factors attributable to discriminatory practices (which may rather be the consequence of the vulnerability itself), rather it may be the outcome of the functioning of the economic system or the absence of an adequate social welfare system. As Fineman writes, “nestled safely within the rhetoric of individual responsibility and autonomy”, discrimination doctrine advocates the idea that America does indeed offer equal opportunities and rights to all, and that any discrimination is an exception—which can be identified and corrected—within an inherently fair system (Fineman 2010, 254). Equal access to the market, equality of opportunity, equality of rights, and the absence of policies that are factually productive of discrimination, in short, do not prevent the presence of conditions of vulnerability for individuals and groups, not only because these conditions can be produced as manifestations of radical and intrinsic human vulnerability, but also because they can depend on the standard functioning—that is, non-discriminatory—of economic and social systems, and on their marginalising outcomes. Finally, vulnerability and discrimination can be completely independent, even when they both refer to groups, because the concept of vulnerability includes a reference to need, deprivation (of resources, for

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example), exposure to harm, injury,10 which is not necessarily present in the concept of discrimination. In Paris, in 2020, the municipality was called to account for discrimination resulting from the violation of the Loi Sauvadet of 12 March 2012, which imposes a minimum gender quota for each sex of 40% in appointments to management positions. However, in this case, the discrimination—and so the activation of anti-discriminatory protection—was due to the under-representation of the male component, compared to the female component.11 Regardless of the political and media contours of the case, it is clear that even if we admit that the municipality committed unjust discrimination because it did not meet a standard on equal distribution of management positions between the sexes, the group affected by such discrimination (the males) cannot be considered a socially vulnerable group in any respect. And even if we restrict the analysis to the subgroup of male candidates for positions in the administration, it is not possible to find any evidence of vulnerability in this group. To conclude, group vulnerability and discrimination are closely linked phenomena, although this link is neither necessary nor clear-cut. It is not necessary because, as we have seen, group vulnerability can be completely independent of discrimination, either in the sense of not being determined by it, or in the sense of not contributing to it. Additionally, it is not clear-cut because the relationship between these dimensions is rather circular and bidirectional: vulnerability can be as much the effect (one of the effects) of discrimination as one of its causes. In a circular dynamic, a discriminated group can, because of such discrimination, become vulnerable, and being vulnerable it can be less equipped to resist further discriminatory practices or policies. In this sense, group vulnerability can be linked to exclusionary, discriminatory, and oppressive practices and policies, i.e. dynamics that systematically affect certain groups or categories of people, thereby affecting their ability to act,

10 On the etymology of the term vulnerability, see the Merriam-Webster: Vulnerable is ultimately derived from the Latin noun vulnus (“wound”). “Vulnus” led to the Latin verb vulnerare, meaning “to wound,” and then to the Late Latin adjective vulnerabilis, which became “vulnerable” in English in the early 1600s. 11 On the matter see https://www.lemonde.fr/politique/article/2020/12/11/la-villede-paris-mise-a-l-amende-pour-avoir-nomme-trop-de-directrices_6063019_823448.html, accessed 23 December 2021.

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fully enjoy their rights, and achieve their goals. In this case, discrimination is one of the factors that produce pathogenic vulnerability (Parolari 2019, 95). In another perspective, group vulnerability (in the positional sense) can be linked to the social, legal, economic, and political context, or environmental conditions, and can foster (in the sense of favouring or accentuating) discriminatory phenomena to the detriment of people whom this context has made vulnerable, and who have fewer resources to protect themselves. This mismatch between group vulnerability and discrimination also explains a further difference. Anti-discrimination law may be oriented— depending on the case, and depending on the theoretical horizon considered—towards different goals, such as equality, freedom, the enjoyment of certain goods, dignity, or others, but it certainly stems from the idea that discrimination, insofar as it is arbitrary and prejudicial, must be prevented and/or eliminated. Discrimination is something to be removed, at least as a final goal, and to be prevented, if it has not yet occurred. To say that discrimination is to be combated because it involves treating people arbitrarily (Flew 1990, 63), is to say that people should not be treated that way, and that such an objective is not only desirable but also possible. Those who hold that discrimination is wrong, because it calls for differential treatment based on characteristics that people cannot control (Kahlenberg 1996), hold that such factors should not be considered as justifying these differences. Similarly, those who argue that discrimination is wrong, because it prevents people from being treated according to their merits, distorting distribution on the basis of irrelevant criteria (race, sex, religious opinions, etc.) (Hook 1995, 145), argue that a purely meritocratic criterion should be adopted instead, in these same contexts. One could continue along these lines. However, when dealing with the question of vulnerability, the approach must be different: one cannot simply argue that certain conditions producing vulnerability should be eliminated, tout court. It is certainly possible to believe that law should lead to the recognition of rights hitherto denied, or to compensate for a situation of disadvantage, or to forms of guarantee (also with the risk of paternalism), but the question of vulnerability is never reducible to these immediate solutions: it goes deeper. For example, if in a clinical context additional protection elements are required—compared to the standard—for vulnerable categories, this does not stem from the idea that such protections will eliminate the condition of vulnerability: more simply, they are provided (effective or not) to increase the resilience, autonomy,

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capacity of the people involved, without cancelling the condition of vulnerability in which they find themselves. The difference, in short, is that discrimination deserves to be fought and prevented (anti-discrimination law has been developed precisely for this purpose) without this implying a more radical questioning of the structures and systems within which discrimination is produced. Conversely, not only does vulnerability need to be seen, recognised, named, not to mention our providing tools and resources to reduce it, but rather it calls for questioning the very structure within which it is understood as a defective trait. In other words, the issue of vulnerability requires the contestation of oppressive and marginalising logics, of power systems, of the economic and legal structures producing distributive asymmetries. Vulnerability has to do with freedom from domination and constraint, therefore with the liberation from violence, in its nature intrinsically aimed at subjugation, oppression, and marginalisation. The condition of vulnerable subjects and groups displays a force of contestation that cannot be cancelled—even if it can be betrayed or misunderstood. While antidiscrimination law can and does work within the existing social and legal system, because it merely targets specific practices and individual policies or norms, the recognition of vulnerability implies challenging an anthropological model that makes autonomy and rationality two natural absolutes, that makes the male the universal neutral subject, that makes independence and self-determination the goal of freedom: it implies challenging political, legal, and economic structures that produce, beyond individual intentions, subjugation and domination, marginalisation and exploitation, caste differences between insiders and outsiders, and so on. This is why, in short, the issue of group vulnerability cannot be resolved by means of the tools of anti-discrimination law.

References Alexander, Jeffrey C., et al., Cultural Trauma and Collective Identity. University of California Press, Oakland, 2004. Baber, Harriet E., “Gender Conscious”, Journal of applied philosophy (2001) 18.1: 53–63. Bar-Tal, Daniel and Dikla Antebi, “Beliefs About Negative Intentions of the World: A Study of the Israeli Siege Mentality”, Political Psychology (1992) 13.4: 633-664.

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Bar-Tal, Daniel, “Psychological Dynamics of Intractable Conflicts, Beyond Intractability”, 2004, at: http://www.beyondintractability.org/essay/psycho logical-dynamics (accessed 26 December 2021). Bar-Tal, Daniel, “Sociopsychological Foundations of Intractable Conflicts”, American Behavioral Scientist (2007) 50: 1430–1453. Bar-Tal, Daniel, Intractable Conflicts: Socio-Psychological Foundations and Dynamics, Cambridge University Press, New York, 2013. Bar-Tal, Daniel, Lily Chernyak-Hai, Noa Schori, and Gundar Ayelet, “A Sense of Self-Perceived Collective Victimhood in Intractable Conflicts”, International Review of the Red Cross (2009) 91.874: 229–258. Bartlett, C. et al., “The Causes and Effects of Socio-Demographic Exclusions from Clinical Trials”, Health Technology Assessment (2005) 9.38: iii–152. Bhopal, Kalwant, and Martin Myers, Insiders, Outsiders and Others: Gypsies and Identity, University of Hertfordshire Press, 2008. Bhopal, Raj S., Migration, Ethnicity, Race, and Health in Multicultural Societies, Oxford University Press, Oxford, 2014. Brock, Dan, “Health Resource Allocation for Vulnerable Populations”, in Danis, Marion, Carolyn M. Clancy, and Larry R. Churchill (eds.), Ethical Dimensions of Health Policy, Oxford University Press, New York, 2002. Brodersen, Marianne Blom, and Emil André Røyrvik. “The Stable Stranger: Constructing “the Roma” within the European Neoliberal Culture Complex”, Focaal—Journal of Global and Historical Anthropology (2021): 1–14. Burton, John (ed.), Conflict: Human Needs Theory, Palgrave Macmillan, London, 1990. Butler, Robert N., “Ageism: A foreword”, Journal of Social Issues (1980) 36: 8– 11, at: https://doi.org/10.1111/j.1540-4560.1980.tb02018.x (accessed 22 December 2021). Canetti, Daphna, et al., “Holocaust from the Real World to the Lab: The effects of Historical Trauma on Contemporary Political Cognitions”, Political Psychology (2018) 39: 3–21. Caportoti, Francesco, “The International Protection of Persons Belonging to Ethnic, Religious and Linguistic Minorities since 1919”, United Nations Economic and Social Council, 1977. Castles, Stephen, “Hierarchical Citizenship in a World of Unequal NationStates”, PS: Political Science and Politics (2005) 38.4: 689–692. Chapman, Audrey R., and Benjamin Carbonetti, “Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights”, Human Rights Quarterly (2011) 33: 682. Cole, Alyson, “All of Us Are Vulnerable, But Some Are More Vulnerable Than Others: The Political Ambiguity of Vulnerability Studies, an Ambivalent Critique”, Critical Horizons (2016) 17.2: 260–277.

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Coleman, Peter T., “Characteristics of Protracted, Intractable Conflict: Toward the Development of a Metaframework-I”, Peace and Conflict: Journal of Peace Psychology (2003) 9.1: 1-37. Consiglio, Elena, Che cosa è la discriminazione? Un’introduzione teorica al diritto antidiscriminatorio (What Is Discrimination? An Introduction to Anti-discrimination Law), Giappichelli, Torino, 2020. Davis, F. James, Who Is Black? One Nation’s Definition, Pennsylvania State University Press, University Park 1991. Deschenes, Jules, “Proposal Concerning a Definition of the Term Minority”, UN Doc. E/CN.4 Sub2/1985/31 (May 14, 1985), at: https://digitallibrary.un. org/record/88267 (accessed 22 December 2021). Drumbl, Mark A., Reimagining Child Soldiers in International Law and Policy, Oxford University Press, Oxford, 2012. Fineman, Martha Albertson, “The Vulnerable Subject: Anchoring Equality in the Human Condition”, Yale Journal of Law & Feminism (2008) 20: 1. Fineman, Martha Albertson, “The Vulnerable Subject and the Responsive State”, Emory Law Journal (2010) 60: 251. Fiorita, Nicola, and Orsetta Giolo, Lucia Re (eds.), La “minoranza insicura” I rom e i sinti in Europa (The ‘insecure minority’. Roma and Sinti in Europe), Jura Gentium, 2010–2011, vol. VIII. Fisher, Jill A., and Corey A. Kalbaugh, “Challenging Assumptions About Minority Participation in US Clinical Research”, American Journal of Public Health (2011) 101.12: 2217–2222. Flew, Anthony, “Three Concepts of Racism”, Encounter (1990) 75: 63-66. Guinier, Lani, and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy, Harvard University Press, 2009. Hannum, Hurst, “The Concept and Definition of Minorities”, in Weller, M. (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies, Oxford University Press, Oxford, 2007. Hellman, Deborah, and Sophia Moreau (eds.), Philosophical Foundations of Discrimination Law, Oxford University Press, Oxford, 2013. Hellmann, Deborah, When Is Discrimination Wrong? Harvard University Press, Cambridge, MA, 2008. Hirschberger, Gilad, “Collective Trauma and the Social Construction of Meaning”, Frontiers in Psychology (2018) 9: 1441. Hook, Sidney, “Reverse Discrimination”, in Cahn, Steven M. (ed.), The affirmative action debate, Routledge, New York, 1995. Jackson-Preece, Jennifer, “Beyond the (Non) Definition of Minority”, European Centre for Minority Issues (ECMI), Issue Brief 30, 2014. Jonas, Hans, “The Concept of God after Auschwitz: A Jewish Voice”, The Journal of Religion (January, 1987) 67.1: 1–13.

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CHAPTER 6

Group Vulnerability and Power

Introduction In the previous chapters, I have repeatedly addressed the issue of the relationship between vulnerability and power. I have argued that both individual and group vulnerability may arise from certain power structures—which exclude, marginalise, discriminate, humiliate, etc.—and the functioning of economic, juridical, political, and cultural power systems: the effects of these systems, even beyond individual purposes and motivations of the subjects involved, may underlie certain forms of vulnerability. I have also argued that focusing on groups, as well as on individuals, is crucial in order to criticise these mechanisms and systems, and to bolster the formation in the public sphere of alternative counterpublics, of political actors capable of challenging the functioning of systems that are otherwise perceived as neutral, or even not easily noticeable. Finally, I have affirmed that the very opposition between vulnerable groups and subjects, on the one hand, and other (allegedly) non-vulnerable groups and subjects, on the other, is in itself functional to underpin a certain distribution of power, to an arrangement that tends to self-replicate and protect itself precisely on the basis of this distinction. Now, the aim of the following pages is to analyse the complex and often ambiguous relationship between group vulnerability and power. Such a relationship is ambiguous because, on the one hand, the attempt to © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 F. Macioce, The Politics of Vulnerable Groups, Critical Political Theory and Radical Practice, https://doi.org/10.1007/978-3-031-07547-6_6

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deconstruct the opposition between vulnerable subjects and the “others” is largely meritorious and necessary: as mentioned above, this opposition is in itself a distinction between those who are in power (and entitled to define others as vulnerable and deserving/needing protection) and those who are not. Therefore, deconstructing this distinction can serve to also deconstruct this power asymmetry. On the other hand, refusing this difference risks leading to an equally pernicious homologation, in which vulnerabilities that actually exist are diluted and—in the end—hidden or denied. In other words, the distinction between vulnerable individuals and groups, and “the others”, the allegedly normal, autonomous, rational, and independent subjects, is a hierarchical distinction, which is fully functional to a power imbalance, often translated into rules that segment the population thereby identifying the recipients of interventions of protection, limitation, exclusion, modulation/deprivation of legal capacity, etc. At the same time, the idea of recognising a common and constitutive human vulnerability, while serves to challenge this hypocritically neutral liberal anthropology (which is actually patriarchal, ableist, racist, and much more, through a series of adjectives that show the systems of power at work behind the veil of such a claimed neutrality), risks to hide the differences in the conditions between people: it risks, in short, to “unwittingly dilute perceptions of inequality” and blend important differences between particular vulnerabilities, as well as between those who are at risk and those who are already harmed (Cole 2016, 262). On a further level, the ambivalent relationship between vulnerability and power is reflected in the many meanings and declinations that are given to vulnerability: if vulnerability can be inherent but also situational or pathogenic, for example, it means that the question of power can be relevant not only with respect to the resources that are distributed (and how they are distributed) to cope with inherent human vulnerability, but also as an element that can both produce (situational) vulnerability and reduce it. The retirement system, or the inheritance law, for example, as well as more or less inclusive healthcare systems, can shape the resources that each of us has to face our constitutive vulnerability. The management of an emergency, and different choices in the allocation of resources, may also be elements which counteract situational vulnerability arising for example from a natural disaster, a pandemic, or other contingent factors. And finally, policies regarding prison treatments, or concerning the legal capacity of persons with disabilities, or regulating immigration, may be factors that produce vulnerability in a pathogenic way. In all these cases,

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as one can see, the question of power (who has the power to decide, and to decide what, and within what limits and with what effects) is crucial in determining forms of vulnerability, their extent, and their distribution among the population. Additionally, choosing to place the discussion of vulnerability within a specific conceptual framework, and defining it as social (Cutter et al. 2003; Wisner et al. 2004), moral (Urban 2014), multicultural (Shachar 2000), economic (Briguglio et al. 2009; Standing 2011), or something else, not only depicts different characters and alternative contexts of vulnerability. It also highlights, from different standpoints, a different relationship with power and its effects on the economic, social, cultural, interpersonal, and legal field. Whether certain social security or pension systems are at stake, or the regulation of certain labour relations, as well as policies aimed at protecting cultural identities and traditions, the question of power is always crucial: not only because it is the question of who is able to increase or reduce the vulnerability of groups and individuals, through the provision of different kind of resources, but also because it opens the question of who is entitled to determine or shape people’s vulnerability, by labelling, marginalising, and oppressing individuals and groups. In this chapter, therefore, I will analyse the different ways in which power relates to human vulnerability, and how group vulnerability is relevant in this context. First, I will address the issue of oppression and how power is exercised over vulnerable groups to define, confine, extend, or determine their vulnerability. I will then discuss the positive aspect of the relationship between group vulnerability and power, i.e. how group vulnerability manifests itself as a site of resistance to oppression, and as a context in which claims and positive actions arise, also highlighting how (vulnerable) groups may occupy, create, and define spaces of public action and discourse. In the last part, I will analyse the issue of power in resource allocation and definition of distributive priorities, and I will analyse group vulnerability as an opportunity to represent and negotiate, giving public prominence to shared needs.

Vulnerability, Power, and Oppression The relationship between vulnerability and power is pervasive and transversal to social relations. Within the system of social relations, the qualification of vulnerability, its identification, its very definition, are all

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manifestations of the power held by some subjects over other groups and other people. As Erinn Gilson has effectively pointed out, the idea that vulnerability can be defined as exposure to risk and injury, and therefore as weakness, and as a defect, implicitly carries out not only the devaluation of the condition of vulnerability itself but also an affirmation, by contrast, of the condition of someone else, and his/her power (Gilson 2011, 312). When we identify some people as vulnerable, we highlight a distinctive and peculiar trait, something that is present in them, and that places them in a condition of minority, or at least in a defective condition (so that these people are depicted as less autonomous, less rational, less able, less capable, less resourceful, etc.). In this first perspective, power manifests itself in subtle and often not even perceptible forms. It exhibits itself as both the capacity to draw the line between the vulnerable and the invulnerable, and the power to conceal what is common among people in their experience of vulnerability. This is an aspect discussed very carefully by Tronto, about the devaluation of care activities (Tronto 1993): identifying vulnerable subjects or groups as distinct and defective is functional to an affirmation of power because it serves, even implicitly, to justify the current power structure and distribution. It serves to validate a difference in terms of possibilities, opportunities, and resources, which are experienced at both an inter-individual and social level. Whoever looks at the vulnerable subject as someone “other” than him/herself, as someone whose weakness and fragility he/she does not share, can be permitted—in such a privilege of ignorance—to ignore the amount of help and care he/she has been the object of, and how much of his/her power and autonomy is indeed dependent on this help and care. He/she can, therefore (by placing him/herself in an illusory condition of a self-made person) justify the disparity of power, resources, and opportunities that he/she is offered (Tronto 1993, 111). This operation of confinement and delimitation is not linear, nor is it merely vertical. It is not a question of dividing society into “high” and “low”, in a sort of pyramid in which at the top there are non-vulnerable subjects, and descending all those who manifest some form or condition of vulnerability. The privilege of the distinction between the vulnerable and the non-vulnerable is multiform and fragmented, and it is constructed in an intersectional logic, on multiple dimensions: but in such a way as to always affirm a distinction, by obscuring something. Gender, economic conditions, age, condition of health or illness, citizenship, and so on, are

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all dimensions within which the category of vulnerable subjects can be shaped in various ways, allowing each subject to come closer to power positions (within the family, at work, in business, in culture, etc.…). Tronto writes very clearly on this point: “a policy of ‘divide and conquer’ (…) also allows for a situation of partial privilege among those who have been excluded, but who are admitted in part”. In this vein, women can enjoy certain privileges of the powerful, depending on their education, economic status, race, religion, and sexual orientation; thus, they can get closer to the centres of power than other people who do not enjoy such privileges. The boundaries between the centre and the periphery of power, Tronto argues, are not rigid, and can be crossed in part and to different degrees by admitting certain groups to forms of partial privilege (Tronto 1993, 16). In short, the identification of the vulnerable, and the qualification of subjects and groups through the category of vulnerability—whereby vulnerability is not an inherent human condition, but a sort of ontological qualification that makes some subjects vulnerable unlike others—are manifestations of power, and are functional to the maintenance of an existing power system. On the one hand, they are co-extensive with the privilege of ignoring personal vulnerability: they allow people to understand the things they own as justified and private achievements, bolstering people’s claims to certain social goals (Gilson 2011, 314) (which would be otherwise hindered by a clear understanding of the deceit beyond their alleged autonomy). On the other hand, the identification of others as vulnerable also contributes to devaluing vulnerability, reducing it to something occasional and linked to “bad luck”, adversity, ineptitude, thus hiding the structural mechanisms that produce it, and from which those who are not vulnerable continue to benefit. If I devalue vulnerability to the condition of a few individuals in need of help and protection, I can afford not to see the economic and cultural mechanisms that are the main factors of production of that vulnerability, and I can continue to benefit from the distributive advantages that—on the contrary—these mechanisms represent for me. The distributive advantages of being, say, a male, white, European citizen, financially endowed, educated, etc., can be concealed, and thus somehow reinforced, when human vulnerability is devalued as a contingent condition, as an adverse event, and not as a result of the standard functioning of specific legal, cultural, economic, social, and other systems (Sullivan and Tuana 2007; Logue 2013, 53; Code 2014).

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Such power to define and separate manifests itself with greater intensity, and greater evidence, the more it is disciplinary and normative. In other words, if we move from the level of individual relationships to the political-normative level, the use of vulnerability as a criterion for identifying and qualifying groups and categories of people has been in many cases functional to paternalistic policies, if not to projects which are directly oriented towards exclusion and marginalisation, precisely on the basis of a pathological and devaluing understanding of vulnerability (Brown et al. 2017, 503). Thus, for example, describing minors (or pregnant women, or the elderly, or people with disabilities) as vulnerable people, not only justifies paternalistic solutions, but also nurtures processes of exclusion towards these categories, and reinforces a reading of their condition in terms of weakness, deprivation, inability, and incapacity. In short, from a legal perspective, the understanding of vulnerability in pathological terms is typical of regulations oriented to the protection of certain categories, which often—at least in the past— meant the implementation of such protection through the replacement of vulnerable subjects with other decision-makers, non-vulnerable subjects who were asked to act in the interest of the vulnerable person, but also to determine and define their own interest. Moreover, even when vulnerability did not result in a replacement of the subject and a limitation of his or her capacity, it produced marginalising effects to the extent that it has been translated into public labels by bureaucratic mechanisms. This still happens when, for instance, protection measures are implemented through welfare mechanisms: they can have stigmatising and marginalising effects, thus contributing to further deny autonomy and resilience to those who have been this way labelled as vulnerable (Becker 1997). In other words, we can say that power plays a role in the context of vulnerability in three ways: first, as a justification for paternalistic attitudes and policies, where protection is implemented through the substitution of subjects in decision-making; second, as a mechanism for extended social control, towards subjects whose vulnerability is understood (also) as deviance; third, as a stigmatising and labelling force, where vulnerability tends to take on the contours of guilt or non-innocence. In the first sense, then, vulnerability is used to justify paternalistic solutions that deny, or obscure, structural mechanisms of disablement: an example of these kinds of policies, which produce power asymmetries instead of reducing them, can be the regulations protecting people with disabilities (Dunn 2013; Mosoff 2000; Batavia 2001), where a de jure presumption of incapacity

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justifies custodial measures that completely expropriate people’s decisionmaking capacity. In a similar vein, it has been noted how an emphasis on minors’ constitutive vulnerability tends to produce care practices in which the will of the minor is continuously neglected and disregarded (Brown 2011, 315; Daniel 2010), in a logic that deprives them of any decisionmaking power and relegates them to passive subjects. In the second sense, the reference to vulnerability can allow forms of social control, as in the case of social assistance programmes for drug-addicted people, where clients are asked to attend treatment to avoid losing governmentprovided benefits or custody of children, and where different formal and informal social controls overlap (Wild 2006). Finally, in the third hypothesis, vulnerability may be used as a label with exclusionary and marginalising effects: this is for instance the case of migrants and asylum seekers, among the many, due to policies that link migration and illegality, thereby paving the way for misrecognition, exclusion, othering and even racism (Furusho 2018). The discourse conducted so far is as applicable to individuals as it is to groups: to be more precise, this discourse is also referable to groups of vulnerable people, but it is in itself applicable to individuals who, insofar as they are labelled as vulnerable, become the object of processes of marginalisation, stigmatisation, and discrimination by those who, in contrast, self-qualify as non-vulnerable and endowed with power. In a classroom, in a workplace, in a family, in any community, some individuals may be subjected to a power that identifies and defines vulnerability, i.e. being the object of processes of confinement and disempowerment by other individuals, who thereby consolidate their own “privilege of ignorance” and power as autonomous, independent, non-vulnerable subjects. There is, however, a different dynamic in the relationship between vulnerability and power that directly concerns groups, primarily and more than individuals, and it is the dynamic that manifests itself in mechanisms of oppression: and it is, as we will see, a dynamic that concerns first and foremost groups, both as the object of these processes of oppression, and as the subjects of claims and practices of resistance to oppression. Oppression, in a very general sense, can be understood as “a situation in which people are governed in an unfair and cruel way and prevented from having opportunities and freedom”,1 therefore as an abuse of power 1 Cambridge Dictionary of English, also available online at: https://dictionary.cambri dge.org/dictionary/english/oppression.

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against a class, a category, a population: in sum, as a synonym for domination. If, in this sense, oppression is linked to the condition of unjust subordination of a social group, it can nevertheless occur both under the intentional action of a dominant group, and because of constraints, restrictions, social and institutional mechanisms, stereotypes, and prejudices, which affect individuals belonging to a given group in such a way as to limit their possibilities of action and social interaction (Taylor 2016, 520). What the essential elements of oppression are is the subject of debate: according to some scholars, however, for there to be oppression there must be harm linked to the functioning of a practice; this social or institutional practice targets a given social group (and not only unrelated individuals); another social group enjoys, symmetrically, a condition of privilege, and a force that makes this condition not easily avoidable or modifiable (Cudd 2006, 25). In any case, oppression is linked to some elements that we have argued to be typical of group vulnerability, at least in some cases. In the first place, oppression is produced not only intentionally, but also in a systemic way: that is, it can arise not only from an abuse of power by one group over another, but also from the functioning of certain social systems and structures. Oppression, in this sense, operates through social, political, and economic systems, which at the same time limit the opportunities for members of certain groups, and penalise them in different but inevitable ways. Using an effective metaphor, oppression has been described as a cage (Frye 1983, 3) whose limiting potential does not depend on a single factor, but on a set of factors (like the bars of a cage): in this vein, oppression does not depend on the single discriminatory act or limiting condition—which could, in principle, be overcome or circumvented—but on the joint functioning of multiple forces and mechanisms, all operating autonomously but tending to disable or limit. Legal rules, social and cultural norms, institutional mechanisms, practices and habits, symbols and mechanisms of mass communication, each of these forces can represent a vehicle of oppression, in a structural perspective, and independently of the will of the subjects involved in these mechanisms (Cudd 2006; Young 1990, 41). In this sense, for example, one cannot understand the oppressive impact of anti-Semitism (or sexism, or ableism, or racism, etc.) if one reduces it microscopically to the single discrimination, the single insult, the single limitation, rather than understanding it from a systemic perspective, as the macroscopic product of a set of

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injustices: anti-Semitism is a dimension of oppression because it is structurally produced by cultural systems that feed prejudice, by social practices that produce marginalisation, by symbols and mechanisms of communication, and so on (Bailey 1998, 105). Similarly, racism is the result of oppression and colonialism, which—with Fanon’s words—“fabricated and continue to fabricate” the colonised and racialized subject (Fanon 2008, xi): specific discriminatory acts or rules are only vehicles of oppression, but its mechanisms are systemic and rooted in economic, cultural, and social structures. Secondly, oppression affects groups rather than individuals: in Frye’s words, “The ‘inhabitant’ of the ‘cage’ is not an individual but a group” (1983, 8). Unlike discrimination—which can affect individuals as well as groups—oppression involves groups, and individuals are affected by oppression because they belong to a group: while a single action, that is unfairly unfavourable or harmful to an individual, may be discriminatory, it becomes a form of oppression when it targets the group to which that person is ascribed, and the single individual merely is its immediate object. The question concerning the nature of groups, and their “essence”, is complex and debated, and not exclusively relevant to vulnerable groups. For some scholars (Cudd 2006, 46), “groups” are just names, mere aggregates of individuals that for linguistic and conceptual utility are unified within the same category. According to others (Young 1990, 42), they are instead specific types of collective entities, whose presence affects the way people understand one another and themselves, and that are differentiated because of certain characteristic traits. As said, such a question is widely debated, and its origin dates back, at least, to mediaeval nominalism. It is indeed with nominalism—and particularly with the philosophy of William of Ockham—that the idea arises that there is nothing in reality above and beyond individuals (Villey 1964, 2013): only individual entities are real, only individuals are knowable, only individual substances exist. What is not individual substance, such as universal categories (the citizen, person, society, and so on), is not real, but only a linguistic tool, a sign for constructing categories of individual entities, putting together individual phenomena based on similarities or common features (Coing 1959, 7; Lagarde 1963). To put it succinctly, being is referable only to individual entities, and not to sets of individuals or to their relations (in the authentic sense, only Peter or Paul are, not humankind or Italians, which are only names by which a set of entities

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are labelled); being does not belong to universals, in the sense that it is not referable to them (Villey 2013, 181–2). Now, it seems to me that here such a question can be set aside or at least be considered as not central. As I stated in Chapter 3, it is not a question of establishing whether a vulnerable group, and/or a group that is a victim of oppression, may be labelled as such on an essential level, or whether there is a common substance, which is equally shared by the members of the group. It is sufficient to admit, as Cudd does (2006, 47), that the existence of groups is necessary for the understanding of social phenomena and their occurrence in certain ways. To further stress what I have already argued in Chapter 3, it is the systemic oppression perpetrated against (what is even only perceived ab extra as) a group, which shapes a form of group identity. And similarly, we can speak of group vulnerability when it is not merely individual, but depends on the functioning of power and knowledge structures, or systems of distribution of resources: these systems structures combine to bring about conditions of vulnerability against groups of individuals, without this implying the assumption of an essentialist perspective, and even if these groups are simply perceived as such (Bailey 1998, 106). However, I consider Young’s observations to be highly pertinent, especially where she stresses the importance of the identity factor in the construction of such social groups. In this sense, talking about groups does not mean postulating the existence of entities distinct from the individuals that make them up, nor does it mean substantiating identities, but rather it means recognising that at a social level there are systems of relationships and mutual recognition that cannot be reduced to the mere occasional sharing of certain characteristics, but which have a profound influence on how individuals think about themselves as well as the relationships in which they are inserted (Young 1990, 44). What oppression highlights, once it is taken as a point of observation, is that group vulnerability is, at least in its strongest sense, a question of power. This is not so much in the sense of being a manifestation of domination, as if the exercise of power were purely binary and exhausted in a vertical relationship between sovereign and subjects: rather, the vulnerability stems from power asymmetries in the sense that it is the result of the functioning of social practices and systems whose effect, regardless of individual will or action, is disabling, and brings about situations of lack of power and incapacity. In other words, oppression reinforces and underpins power asymmetries between vulnerable groups on the one hand, and privileged groups on the other. These asymmetries should not

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be understood as a direct expression of the sovereignty of some groups over others, or a caste-like order in society, but rather as a consequence of the specific functioning of social systems with vulnerable outcomes. For example—but I will return to this in depth in the last chapter—the system of granting citizenship, or residency and work permits, does in itself create and reinforce differences in power between groups, between insiders and outsiders, independently of the will of the subjects who act within this system and who contribute to making it work (Newman 2003; Balibar 2004; Mezzadra and Neilson 2013). For this reason, the oppression of one group—and therefore the condition of vulnerability in which a given group finds itself—almost always corresponds to a condition of privilege of another group. Not in the sense that one group is dominant over the other, or intentionally oppressive of the other, but in the sense of being able to enjoy resources, opportunities, and spheres of action, which are denied to the other group, and to enjoy them in a way that is just as systematic and not dependent on its own merits. In the same way, as one group is vulnerable insofar as it experiences a condition of systemic oppression, another group is privileged insofar as it enjoys, through the pure functioning of these same systems, opportunities, and resources that are denied to others. To stay with the example given above, having an Italian passport in my pocket, instead of a Syrian passport, is a privilege that allows me to travel, to ask for and obtain entry to any country in the world, without being subjected to particularly strict controls upon arrival, to be able to decide whether, how, when, to leave my country and return, and so on. And it is a reality that I may even fail to notice, or that I can afford to ignore, precisely because it is a privilege, or precisely because I am so privileged that I do not have to worry about the question of the value of my passport.2 In a similar vein, the fact of being white allows me not to worry about the question of the “colour” of my skin, and to consider it an irrelevant question (for me), because the cultural system works in the sense of attributing to me, as a white person, such a privilege of ignorance, which I would not enjoy if I had been born with a different skin colour. The privilege, in this sense, is a sort of pre-formatted schema that is perfectly fit for my needs: I can act, 2 The updated ‘ranking’ of passports, calculated on the number of countries you can enter without a visa, or with a visa required on departure or arrival, can be consulted at: https://www.passportindex.org/byRank.php. The Italian and Syrian passports, mentioned in the text, are respectively at the top and bottom of the list.

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and operate in the world, without having to worry about this basic frame, because the world functions in a way that is perfectly compatible with it. And among the many axes of privilege, the “white, male, and heterosexual privilege are default positions. Either I can choose to be aware of these default positions or I can ignore them” (Bailey 1998, 113), but as a member of a dominant group, these positions will always count in my favour.

Group Vulnerability and Resistance The relationship between group vulnerability and power is not, however, merely negative. I argue that it should not be reduced to the idea that vulnerability is the consequence, and the expression, of a power that is distributed asymmetrically, creating structures of oppression, and condemning certain groups (the vulnerable groups) to the condition of marginalised and subordinate groups. In other words, vulnerability shall not be only understood in its victimising aspect, as a consequence of a power that relegates certain groups to the condition of victims, but can also be a place of resistance to oppression, and a context in which claims and positive actions emerge: as Butler writes, vulnerability “becomes a potentially effective mobilizing force in political mobilisations” (Butler 2016, 14). This positive side of vulnerability has been analysed by many as referring, first and foremost, to the condition of individuals: Anderson and Honneth (2005, 131–32), for example, emphasised the links between autonomy and vulnerability through a critique of the liberal model of autonomy, and through a relational reading of both these dimensions, thereby subverting the—typically liberal—idea that vulnerability is synonymous with reduced autonomy and reduced decision-making capacity (Anderson 2014, 146; Macioce 2019, 23). On the contrary, according to these authors, the person’s autonomy is enhanced all the more the greater the recognition of the person’s vulnerability, and the role of available relational resources. Others (Campbell 2005, 101) emphasised the importance of recognising the universal dependence of the human being for true and full agency, against perspectives—not only liberal—that identify care with paternalism. Scholars such as Kittay (2019) and Dodds (2007), again, highlighted the importance of using the category of vulnerability and dependence in a positive sense, in order to gain social recognition of the role of caregivers and to assign a positive value

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to the care of people in a condition of vulnerability and dependence. Even more, Goodin (1986) tried to develop a theory of rights on the recognition of vulnerability, arguing that responsibility for others can be based, first of all, on the condition of vulnerability to the action of others. And Turner (2006, 44), in a substantially similar direction, argued that the entire structure of human rights can be based on the recognition of universal vulnerability, and on the consequent need to build institutions and powers with protective functions. However, at least in these last two authors, these attempts seem to push for the reworking of the Hobbesian model, and more generally of models internal to the social contract tradition, according to which the need for political order stems from the experience and awareness of individual vulnerability, thereby producing security through processes of “legal immunization” (Esposito 2002) of individual vulnerability. More radically—and more interestingly—vulnerability can be seen as a point of observation from which to critique dominant legal paradigms (Fineman 2010, 251), highlight their exclusionary and victimising effects, and propose different models in which the vulnerable are within and not at the margins of society, and in which the logic of rights is coupled with the logic of needs. On the one hand, therefore, the experience of pain and subordination, as experiences of intrinsic and situational vulnerability, are the positive source of critique of the existing power structure, and the basis for claiming rights and responses to oppression (Feinberg and Narveson 1970, 260): vulnerability is the existential basis from which to exercise a public claim, against the logic—as seen in the previous section—that places vulnerability in a condition of marginalisation and invisibility. On the other hand, vulnerability makes it possible to balance the universalistic logic of rights with the radical particularity of needs (Pastore 2021), bringing out the importance of contexts, characteristics, and specific conditions, to support projects of emancipation and liberation. Vulnerability, in this vein, allows subordinated individuals and groups (starting from the recognition of inequalities) to enjoy the benefits of public awareness of the specific conditions of subordination, and therefore it allows them, through techniques that re-shape social and institutional spaces, the achievement of equal dignity. This way of thinking about vulnerability, which tends to emphasise its positive and emancipatory value, is internal to an approach that abandons the paradigm of independence and perfect individual autonomy, and claims the value of bodies, of dependence, of caring relationships, and

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the link with the social environment. Moreover, it is consistent with an enabling conception of justice, at the heart of which is the need for mutual responsibility between subjects, and for institutions capable of accommodating vulnerability and separating it from mere disadvantage. Above all, however, such an understanding of vulnerability highlights its active rather than merely passive character and emphasises its potential rather than defective characteristics: according to Castel, vulnerability is “un espace social d’instabilité, de turbulences, peuplé d’individus précaires dans leur rapport au travail et fragiles dans leur insertion relationnelle” (Castel 1994, 16). In other words, it is a space that is as much open to marginalising and exclusionary outcomes as it is capable of generating spaces for collective action, and for claiming material and relational resources that are functional for modifying the conditions that give rise to vulnerability. Vulnerability, in other words, is a space of potential, more than a defective or negative condition. It certainly includes passivity, subjection, but also pressure to change and openness to sociality: taken as a fundamental state, vulnerability is “a condition of potential that makes other conditions possible” (Gilson 2011, 310). Vulnerability can also be a condition that enables people, presenting opportunities for innovation, creativity, as well as for building relationships and institutions (Fineman 2012, 126). This ambivalent and even positive, or at least enabling, dimension of vulnerability is particularly evident if we consider groups, rather than individuals: in other words, the positive and enabling value of vulnerability is even more evident, in my opinion, when we refer to vulnerability as a condition that is relevant for groups, rather than a purely individual one. I argue that group vulnerability can be understood as a constitutively political dimension (Cixous 1975; Casadei 2015, 78), as an opportunity for redemption and a place for dissent, as a context in which to develop demands for visibility and struggles for recognition. It cannot be denied that this can also be true when individuals are at stake: however, it is the collective dimension that, par excellence, allows for the occupation of public space, gives social exposure, and enables the exercise of the right to enter the public debate and make one’s voice heard. As Butler argues, vulnerability can be understood as a deliberate bodily exposure to power, thereby becoming part of the very meaning of political resistance (Butler 2016, 22). This is for two reasons: on the one hand, because in order to enter the public space it is necessary to demonstrate that the vulnerability experienced by each individual is not reducible to a merely private affair, it being instead a shared condition which influences relations between

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human beings. In doing so, vulnerable people forge new political subjectivities and new forms of participation in public life. On the other hand, the collective dimension is relevant because the object of people’s claims, and the aim of their political action, is in itself a meta-individual element, which cannot be privatised or reduced to private spheres. The political target is, as mentioned, the systemic oppression, the functioning of legal, political, economic, and cultural structures that determine conditions of vulnerability for groups of people, and privilege others. And as Young argues, without assuming groups as actors in these emancipatory movements, not only is it not possible to conceptualise oppression as a systemic process, because it ends up being reduced to the “faults” and choices of the individuals involved: but above all the “structural and political ways to address and rectify the disadvantage are written out of the discourse, leaving individuals to wrestle with their bootstraps” (Young 1994, 718). In other words, focusing on groups highlights that the vulnerability experienced by each individual is not reducible to a merely private matter and that the object of claims, as well as the aim of the political action, is in itself a meta-individual element. What is not fully grasped by theories on situational vulnerability, is the fact that groups can forge new political subjectivities, as well as new forms of participation in public life, being the vulnerability a shared condition that influences relations between human beings. As Young correctly writes, the democratic discussion is a process in which social groups, paying attention to the situation of others, should be willing to work out just solutions to their collective problems by going beyond their situated positions (Young 2000, 7). Therefore, focusing on the condition of single individuals not only overshadows our ability (as observers) to grasp the systemic dimension of their vulnerability but makes it also difficult for people to perceive themselves as connected by relations or structures that are beyond their will. Even if relational understandings of vulnerability (where the system of social, political, and institutional relations is correctly taken into consideration) render intelligible the significance of such relations for the experience and opportunities of any vulnerable person, only the consideration of groups highlights the conditions that create the possibility for people to collectively make claims (Woodly 2015, 214). While relational theories and consideration of situational vulnerability correctly conceptualise the impersonal and systematic forces that affect individual lives, the recognition of groups fosters people’s mobilisation for change and redress of their conditions.

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When vulnerable groups become, at the same time, both the subject and the object of the criticism towards a given power structure (which is oppressive for some groups and a source of privilege for others), they can contribute to the emergence of precarity within the public debate, without entering into the logic—which is still internal to the liberal model—of the alternative between vulnerability and autonomy. However, the debate on the condition of vulnerable people risks being politically irrelevant if it is aimed at emphasising the opposition with the status of an alleged in-vulnerability, while leaving unquestioned the mechanisms that are at the origin of vulnerability itself. For this reason, it is certainly possible that at an individual level claims are raised with the aim of reducing one’s vulnerability, to acquire more resources and capacities, and gain greater autonomy and independence. However, at a collective level what counts is rather the contestation of the functioning of a given system (economic, social, cultural…) that not only produced specific vulnerabilities but also devaluate and marginalise them. Collective action, in short, is not limited to the achievement of results—however important they might be—in terms of resources, opportunities, rights, but it aims at providing a new understanding of the condition of vulnerability, showing its roots, intrinsic traits and pathogenic factors, as well as its value and positive meaning: for example, by offering a different reading of the human condition, relationships, care labour, corporeity, and by escaping approaches that see in vulnerability only the sign of a weakness to be filled or resolved (Giolo 2018, 350). It is clear that collective action has fundamental repercussions on the condition of individuals, and that the public and critical presence of a vulnerable group can lead to results for individuals in terms of both more rights, and greater resources. However, what is in the balance regards not only improving the condition of individuals, but also the contestation, and perhaps the modification, of the actual structural mechanisms of oppression and privilege that underlie this condition of vulnerability. In this vein, the value of care work must be reconsidered not only to allow caregivers (mainly, women) to emerge from a condition of vulnerability, and enable them to exercise their rights, enjoy opportunities and chances, but also as a means to challenge the cultural roots of the devaluation of this work, as well as the systemic mechanism by which it is assigned to women and made a job that is neither paid nor socially valued. Many studies point out that in Europe the care labour is one of the main employment sectors for migrant women, in regular or irregular legal status, and shows a tendency

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to import “care and love” from poor countries to rich ones (Hochschild 2012; Anderson 2000). More in detail, domestic work provides a typical example of under-utilisation of the human capital of the immigrant labour force, because whatever the level of education, previous professional experience, skills, abilities, and aspirations, the receiving societies often find it difficult to offer immigrant women occupations other than those of family and elderly care worker (Ambrosini 2015). Similarly, contestation of the dualism between able-bodied and disabled people certainly had and has the aim of promoting equal opportunities, social participation, independence, and access to the labour market for people with disabilities, but it has also had (first and foremost) the aim of contesting a cultural and social model that produced segregation and marginality.3 Again, we can mention the masses of precarious workers who filled the streets of Milan in 2001, and from 2005 onwards gave birth to a pan-European movement (EuroMayDay): these groups brought to the public stage a strong contestation of the mechanisms of oppression and privilege that underlie their condition. In other words, they did not limit themselves to making specific demands, in terms of access to benefits or subsidies. They have shed light on the systemic consequences of contemporary economics and finance, and the vulnerability it produces in terms of insecurity and social alienation (Standing 2011, 1). Above all, they changed the narrative of class conflicts and trade union struggles. Not being a real class, and especially not having—precisely because of the nature of precarious work—a labour-related identity, their protest was not directed towards specific targets in terms of wages or other benefits, but rather against the current structure of the global economy, social hierarchy, and distribution system. And indeed, as a global movement uniting precarious workers from Europe with those from North America and Japan, they presented themselves as a class that wants to abolish itself: more precisely, as a class that wants to abolish the conditions of its existence, not simply improve some aspects of it (Standing 2018). 3 The 1970s Fundamental Principles of Disability, drawn up by one of the first and most active groups of people with disabilities, and aimed at challenging the medicalindividualist model then prevailing, states: “Disability is something that is imposed on top of our impairments, by the way we are unnecessarily isolated and excluded from full participation in society. Disabled people are therefore an oppressed group in society. It follows from this analysis that having low incomes, for example, is only one aspect of our oppression”: UPIAS, Fundamental Principles of Disability, Union of the Physically Impaired Against Segregation, London 1976.

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The condition of black and migrant women, who are employed as caregivers and domestic workers, can be a further example: even if their vulnerability may vary in magnitude for factors that are specific of any single person, as a group of people similarly positioned—with regard to the visas, wages, family burdens, the discrimination they experience— “they are simultaneously exploited and expropriated, forced to work precariously and on the cheap, deprived of rights, and subject to abuses of every stripe” (Arruzza et al. 2019, 45). Highlighting the group dimension makes visible the forms of exploitation and privilege and builds political solidarity among vulnerable people: in this way, by “struggling in and through” their diversity, vulnerable people can achieve the power they need to transform society (Arruzza et al. 2019, 46). To this end, the action of groups is crucial. In place of a conception of public space as a regulated arena in which individuals meet each other to rationally discuss issues of common interest (or public importance), and as a place in which anyone can—formally—enter as long as he/she respects the rules, the action of vulnerable groups fosters a different model, which is neither marginalising nor formal. Nancy Fraser, when discussing the role of subordinate groups as alternative publics, points out that the liberal conception of public space does not take into account two elements: first, the fact that public discourse tends to mask (and reinforce) power differences, because not everyone has equal access to the media, not everyone has equal ability to influence the debate, not everyone can determine the agenda and define the object of discussion, but rather all these opportunities are primarily attributed to groups that already enjoy (economically, politically, culturally) a position of privilege. Secondly, this idea of a rational public space tends to monopolise social debate, excluding other opportunities and places for discussion, other modes and languages, which are therefore silenced (Fraser 1990, 66). In this sense, vulnerable groups can influence the context of oppression and privilege if, and to the extent that, they can modify this way of conceiving the debate and the public space, to propose different narratives, to formulate different and alternative points of view, to convey a different language. Thus, in a similar vein, it seems to me that vulnerable groups (and not scattered individuals who experience conditions of vulnerability) have the opportunity to open up new arenas of discussion, to propose different interpretations, to convey interests and needs not only in the public sphere, but also in other arenas of discussion (Fraser 1990, 67; Young 2000, 167).

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In short, these groups perform an emancipatory and enabling function because, on the one hand, they allow the sharing of experiences of vulnerability, which in this way leave the individual dimension and are proposed—at least in part—as shared experiences: they make evident, both internally (towards individuals) and externally (towards society as a whole), the fact that these experiences are not reducible to the level of individuality. On the other hand, they function as a sounding board, and as a magnifying glass, for claims and demands for recognition, for attempts to broaden the scope of public discourse, and to reset the political agenda and the topics of public debate (Fraser 1990, 71). As Gambetti rightly notes, in her analysis of “Occupy Gezi” protests, multiple and variable individual positions gathered in a collective moment of acting, where social identities emerged as performative positions giving rise “to a new vocabulary, novel claims and repertoires, and a new mode of relating” (Gambetti 2016, 42).

Group Vulnerability and Resource Distribution When I argued that the role of vulnerable groups is to act as alternative publics and propose different narratives and different points of view, thereby uncovering the mechanisms of privilege and oppression, I was mainly referring to groups whose vulnerability is identity-based. That is, groups whose condition depends to a large extent on systemic forms of violence or oppression, directed towards certain persons as members of that group. Therefore, the positive meaning of group vulnerability, in terms of the capacity to act politically and challenge mechanisms of oppression, mainly concerns these kinds of groups. However, this does not mean that vulnerable groups in a positional sense cannot act politically, with their vulnerability only having a negative meaning: on the contrary, their action is crucial in shaping distributive policies and addressing people’s needs. The role and impact of welfare policies, primarily understood as a way of taking charge of and managing vulnerability itself, are a further aspect where the collective dimension of vulnerability is intertwined with the question of power. The system whereby the state undertakes to protect the health and well-being of its citizens, especially those in financial or social need, is not only a way of balancing the effects of the market economy, and in general a powerful strategy for allocating resources to deal with the many dimensions (constitutive, situational, pathogenic) of

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human vulnerability, but also aims at responding directly to the ambitions of an enabling and inclusive democracy (Morondo 2018; Briggs 1961, 2006). The welfare state, at least in part, stems from the recognition of the embodied condition of the subject: but above all, it brings to the surface and legitimises the social conflict (Preterossi 2015, 209), that is, the presence of groups (and not only of single individuals who act in the market, driven by specific interests) that are the bearers of shared but conflicting interests, and of groups capable of giving voice to conditions of marginality and weakness that would otherwise not be perceived. In this sense, the history of the welfare state demonstrates how people who were at the margin of history emerged in public life, no longer as mere objects of the public system, but as its actors (Preterossi 2015, 211). The welfare state grows on—and continues to be shaped by—mechanisms of collective negotiation, as an arena of confrontation and conflict whose main actors are groups capable of representing shared interests and needs, without requiring real or presumed collective identities to be brought into play. In other words, what is at stake is the engagement and political action of groups that are vulnerable (also) in a positional sense, and involves not only groups whose vulnerability is identity-based: that is (to say), groups where vulnerability depends on a similar positioning of several individuals within a given context, so as to condition their possibilities of action, affect their ability to protect themselves from risks and uncertainties, and cope with the consequences of such risks and uncertainties. As mentioned, these groups include people who, in a very contingent way, are exposed to the same context of risk, and who, because of this, find themselves conditioned in their possibility of action, and coping with the consequences of these risks: but these groups can, at the same time, gain visibility and act in the public arena, giving voice to interests and needs otherwise hidden and marginalised. For this reason, the question of power is relevant here not in relation to the possibility of defining and categorising vulnerability (with its ambivalent outcomes regarding the possibilities of protection, and the risks of confinement and stigmatisation), neither as oppression (i.e. as an effect of the functioning of social, political, and economic systems), nor finally as resistance to oppression mechanisms (i.e. as the opportunity for resistance and a place for dissent, and as a context in which claims for visibility and struggles for recognition develop). In this context, the question of power

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concerns, on the one hand, the allocation of resources and the definition of distributive priorities, and, on the other, the capacity to represent and negotiate, to give voice to shared needs. In other words, the positive understanding of vulnerability relates in this case to the capacity to politicise the needs of groups and categories of people similarly positioned within certain contexts (Preterossi 2015, 212). In this sense, if the welfare state was created to minimise (and compensate for) market outcomes through the creation of a social security system (Briggs 1961), the policies and institutions of welfare shifted their scope from individuals to groups, from the protection of needy individuals to that of the interests of categories of subjects exposed to the same or similar risk factors, and groups of people whose capacities and opportunities are similarly limited: precarious workers (Campbell and Price 2016), the elderly, retired people, the unemployed, and so on. These groups certainly do not share any identity traits, nor can they be perceived ab extra as sharing the same identity, but their members are equally or similarly positioned regarding certain risk factors. The question of power, in this case, does not concern the axis of oppression-resistance, but the conflict between competing interests. While in the case of oppression, the conflict almost necessarily involves identity issues (how a group is perceived, labelled, and marginalised; how a group is excluded from the public sphere and silenced, and how, on the other hand, it is able to gain its own space of representation and visibility; the development of collective awareness and different narratives and representations; the role of stereotypes and prejudices, and the necessary contestation of these through cultural work; and so on), in this case, the conflict is between competing needs and interests, and between the strategies to balance these interests that can either increase the vulnerability of some groups or reduce it, depending on the solution adopted. One example may be the way in which the healthcare system is organised, and how it can guarantee more or less extensive coverage to people, thereby determining the degree of vulnerability and exposure to risk for individuals. As is well known, systems with substantially universal and universalistic coverage (such as, fortunately, the majority of European models) can be contrasted with other models, in which the balance between market and welfare is decidedly in favour of the former. The US model, from this point of view, represents an interesting example, not only because of its relative uniqueness within the western world,

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but also because it shows how one of the factors hindering the extension of healthcare coverage has been precisely the opposition between specific interest groups (health professionals, insurance companies, and others) and other groups (trade unions, patients’ associations…) that have been promoting this extension for decades (Quadagno 2004, 2010). This example shows that a certain structure of welfare not only depends on the action of groups with opposing interests and needs, but also that in principle the structure and implementation of the welfare state refer to groups and group vulnerability (in a positional sense), rather than to individual vulnerability: among other factors, the structure of a welfare system depends on how, in a given context, different groups have acted, how they have managed to politically translate the interests shared by their members, and how they have managed to advance them against those of other groups with opposing interests. As Raz writes, with regard to the group rights which constitute the prerequisite for social benefits, the interest of no single individual is sufficient by itself to justify holding another person to be subject to a duty (Raz 1986, 208). It is therefore necessary that the right to that particular good is functional to the protection of the needs shared by groups of individuals, which are similarly positioned within a given context. To remain in the healthcare sector, a group of patients suffering from a certain pathology (therefore, persons similarly positioned regarding a specific risk factor), can represent in the public sphere a shared interest relative to approval of a certain experimental protocol, or the off label use of a certain drug (Dresser and Frader 2009),4 or they can lobby for the financing of the research, and development and marketing of socalled orphan drugs.5 These objectives would be implausible if they only referred to vulnerable individuals, rather than to the action of groups with shared interests. In other words, vulnerable groups are the main characters of conflicts and claims for the balancing of competing interests and

4 Interesting is the recent decision on off-label drug uses of the Court of Justice of the European Union (C-29/17 Novartis Farma Spa v Agenzia Italiana del Farmaco (AIFA) and Others, ECLI:EU:C:2018:931). 5 This designation is for medicines to be developed for the diagnosis, prevention, or treatment of rare diseases that are life-threatening or very serious. Within the EU context, an orphan designation allows a pharmaceutical company to benefit from incentives, such as reduced fees and protection from competition once the medicine is placed on the market, on the basis of the opinion of the Committee for Orphan Medicinal Products.

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needs, and the distribution of resources: and the welfare system is articulated and shaped as a consequence of the action of these groups, and the balance which, from time to time, is found. As we can see, therefore, the question of power remains central, even if articulated differently. Even in this case, it is important to emphasise that group vulnerability does not come into play simply as a prerequisite for the perception of incentives and the distribution of resources (that is, in its passive aspect, as a justifying factor for obtaining certain benefits and services), but also as a propulsive and orienting factor for social policies. Vulnerability can become, in this sense, a policy orienting principle, concerning macro-allocative and micro-allocative issues. Vulnerable groups, understood in a positional sense as categories with similar exposure to risks and similar need for resources that make them able to cope with these risks, can in fact play an active role in the construction of the social system of welfare, making needs visible and giving voice to people, and promoting requests and claims. Therefore, they can also play an important role in processes of social inclusion, both by opposing the pauperization and marginalisation of the subjects (that can be) referred to in these groups, and by reaffirming their interests and needs as political priorities. Concerning this last aspect, it is important to underline that vulnerable groups play an important role in comparison, for example, with other social groups for which no condition of vulnerability is postulated. To return to the previous example, patients’ associations and insurance companies can certainly be understood as groups with opposing and symmetrical interests, but they cannot be placed on the same level. The fact that the category of vulnerability is used for some groups does not have a mere pietistic value, but serves to bring out the level of needs with respect to the level of interests. Vulnerable groups do not simply advance interests that are more or less reasonable in the public sphere, and alternative to other interests advanced by other groups: they advocate needs whose dissatisfaction determines specific conditions of vulnerability. To be more precise, the role of vulnerable groups is crucial in both allocating resources and defining distributive priorities, as well as in representing, negotiating, and giving voice to shared needs. As Fineman rightly argues, while the vulnerability is inherent, autonomy is not. The fact that some groups of people are more vulnerable than others—who are instead in a position of privilege—implies that care for the vulnerable is also achieved through public policies of resource allocation. These resources are the

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answer to people’s needs, as well as the way our society takes human vulnerability into account (Fineman 2010, 260). Therefore, vulnerable groups politicise the needs of people similarly positioned within certain contexts, claiming them to be the object of public policies. This is also why promoting the needs of vulnerable groups fosters social inclusion: because it urges to focus on the relational sphere, and does appeal to a wider public for recognition and equity, bringing to the fore the particularities of groups’ social position and experience, and favouring just solutions to particular problems in a particular social context. As Young correctly writes, social structures position people unequally in processes of power, resource allocation, or discursive hegemony. Claims for justice made from the position of groups uncover relations of power and opportunity, as well as the fact that these power imbalances produce social problems or conflicts (Young 2000, 86). Taking the vulnerability of groups into account sheds light on social relations and axes of privilege, and asymmetrically balances the needs and claims of those who speak from less privileged perspectives. In Young’s words, the legal and political relevance of group vulnerability fosters inclusion because it acknowledges social differentiation and divisions, thereby giving voice to the “needs, interests, and perspectives on the society (of) differently situated groups” (Young 2000, 119). A democratic process is inclusive because (and to the extent) it takes into account how people are positioned within social relations, and how these relations affect their opportunities, experiences, and resources (Young 2000, 83). Therefore, labelling a group as “vulnerable” doesn’t simply mean that a set of people shares similar interests: it highlights that circumstances of structural inequality, and the power asymmetries with other groups, lessen the ability of these people to raise claims and define the common good. While other groups (less vulnerable, or more powerful) can convert their perspective into authoritative knowledge and social standards, vulnerable groups cannot: to the extent that these circumstances and systems of privilege persist, promoting justice means fostering processes of public discussion and decision-making that include the particular positions of all social groups relevant to that particular issue (Young 2000, 109). Accordingly, the function of vulnerable groups is to shed light on the necessity of including people within the public decision-making process, by both encouraging the solidarity among group members and making their voice heard, thereby overcoming power asymmetries and stereotypes.

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In sum, the focus on group vulnerability (when vulnerability is understood in a positional sense) helps us to associate the focus on interests with a broader concern for needs. And while interests and projects are aspects of human experience that may be understood individualistically, talking about needs “is necessarily intersubjective, cultural rather than individual”, because “how one arrives at a need is a matter of social concern, how one arrives at an interest is not” (Tronto 1993, 164). In this sense, it is a cultural shift that drives for inclusion, which is, in turn, relational and intersubjective.

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Briguglio, Lino, et al., “Economic Vulnerability and Resilience: Concepts and Measurements”, Oxford Development Studies (2009) 37.3: 229–247. Brown, Kate, “Vulnerability’: Handle with Care”, Ethics and Social Welfare (2011) 5.3: 315. Brown, Kate, Kathryn Ecclestone, and Nick Emmel, “The Many Faces of Vulnerability”, Social Policy and Society (2017) 16.3: 497–510. Butler, Judith, “Rethinking Vulnerability and Resistance”, in Butler, Judith, Zeynep Gambetti, and Leticia Sabsay (eds.), Vulnerability in Resistance, Duke University Press, 2016. Campbell, Alastair, “Dependency Revisited: The Limits of Autonomy in Medical Ethics”, in Brazier, Margareth and Mary Lobjoit (eds.), Protecting the Vulnerable, Routledge, 2005. Campbell, Iain, and Robin Price, “Precarious work and precarious workers: Towards an improved conceptualisation”, The Economic and Labour Relations Review (2016) 27.3: 314–332. Casadei, Thomas, “La vulnerabilità in prospettiva critica” (Vulnerability and the Approach of Critical Theory), in Giolo, Orsetta, and Baldassarre Pastore (eds.), Vulnerabilità. Analisi multidisciplinare di un concetto, Carocci, Roma 2015. Castel, Robert, “La dynamique des processus de marginalisation: de la vulnérabilité à la désaffiliation”, Cahiers de recherche sociologique (1994) 22: 11–27. Cixous, Hélène, La jeune née (The Newly Born Woman), Union Générale d’éditions, Paris, 1975. Code, Lorraine, “Ignorance, Injustice and the Politics of Knowledge”, Australian Feminist Studies (2014) 29.80: 148–160. Coing, Helmut, “Zur Geshichte des Begriffs ‘Subjektives Recht’”, in Coing, H., F.H. Lawson, K. Gronfors (eds.), Das subjektive Recht und der Rechtsschutz der Persönlichkeit, A. Metzner Verlag, Frankfurt am M.-Berlin, 1959. Cole, Alyson, “All of Us Are Vulnerable, But Some Are More Vulnerable Than Others: The Political Ambiguity of Vulnerability Studies, an Ambivalent Critique”, Critical Horizons (2016) 17.2: 260–277. Cudd, Ann E., Analyzing Oppression, Oxford University Press, Oxford, 2006. Cutter, Susan L., Bryan J. Boruff, and W. Lynn Shirley, “Social Vulnerability to Environmental Hazards”, Social Science Quarterly (2003) 84.2: 242–261. Daniel, Brigid, “Concepts of Adversity, Risk, Vulnerability and Resilience: A Discussion in the Context of the ‘Child Protection System’.” Social Policy and Society (2010) 9.2: 231–241. Dodds, Susan, “Depending on Care: Recognition of Vulnerability and the Social Construction of Care Provision”, Bioethics (2007) 21.9: 500–510. Dresser, Rebecca, and Joel Frader, “Off-Label Prescribing: A Call for Heightened Professional and Government Oversight”, Journal of Law, Medicine & Ethics (2009) 37.3: 476–486.

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Dunn, Michael, “When Are Adult Safeguarding Interventions Justified?” in Wallbank, J. and J. Herring (eds.), Vulnerabilities, Care and Family Law, Routledge, London 2013. Esposito, Roberto, Immunitas. Protezione e negazione della vita, Einaudi, Turin, 2002 (English transl: Immunitas: The Protection and Negation of Life Polity Press, London, 2011. Fanon, Frantz, The Wretched of the Earth, translated by Richard Philcox, Grove Press, New York, 2008. Feinberg, Joel, and Jan Narveson, “The Nature and Value of Rights”, The Journal of Value Inquiry (1970) 4.4: 243–260. Fineman, Martha Albertson, “Elderly as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility”, Elder Law Journal (2012) 20: 71. Fineman, Martha Albertson, “The Vulnerable Subject and the Responsive State”, Emory Law Journal (2010) 60: 251. Fraser, Nancy, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy”, Social Text (1990) 25/26: 56–80. Frye, Marilyn, The Politics of Reality: Essays in Feminist Theory, The Crossing Press, New York, NY, 1983. Furusho, Carolina Y., “The ‘Ideal Migrant Victim’ in Human Rights Courts: Between Vulnerability and Otherness”, in Revisiting the ‘Ideal Victim’: Developments in Critical Criminology, Bristol University Press, Bristol, 2018. Gambetti, Zaynep, “Risking Oneself and One’s Identity. Agonism Revisited”, in Butler, Judith, Zeynep Gambetti, and Leticia Sabsay (eds.), Vulnerability in Resistance, Duke University Press, 2016. Gilson, Erinn, “Vulnerability, Ignorance, and Oppression”, Hypatia (2011) 26.2: 308–332. Giolo, Orsetta, “Vulnerabilità e forza. Un binomio antico da ripensare” (Vulnerability and Force: An Ancient Binomial to be Rethought), in Casalini, Brunella, and Orsetta Giolo, Lucia Re (eds.), Vulnerabilità: etica, politica, diritto (Vulnerability, ethics, politics and law), IF Press, Roma, 2018. Goodin, Robert E., Protecting the Vulnerable: A Re-analysis of Our Social Responsibilities, University of Chicago Press, 1986. Hochschild, Arlie Russell, “Love and Gold”, in Bertram, Hans, and Nancy Ehlert (eds.), Family, Ties and Care: Family Transformation in a Plural Modernity, Verlag Barbara Budrich, Opladen-Berlin, 2012. Kittay, Eva Feder, Love’s Labor: Essays on Women, Equality and Dependency, Routledge, 2019. Lagarde, George de, La naissance de l’esprit laïque au déclin du Moyen Age. V. Guillaume d’Ockham. Critique des structures ecclésiales. Louvain, Ed. Nauwelaerts et, Béatrice-Nauwelaerts, Paris, 1963.

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Logue, Jennifer, “The Politics of Unknowing and the Virtues of Ignorance: Toward a Pedagogy of Epistemic Vulnerability”, Philosophy of Education (2013): 53–62. Macioce, Fabio, “Informed Consent Procedures Between Autonomy and Trust”, Biolaw Journal, Special Issue (1/2019): 23–35. Mezzadra, Sandro, and Brett Neilson, Border as Method, or, the Multiplication of Labor, Duke University Press, 2013. Morondo Taramundi, Dolores, “Un nuovo paradigma per l’eguaglianza? La vulnerabilità tra condizione umana e mancanza di protezione (A New Paradigm for Equality? Vulnerability Between Human Condition and Lack of Protection)”, in Casalini, Brunella, and Orsetta Giolo, Lucia Re (eds.), Vulnerabilità: etica, politica, diritto (Vulnerability, Ethics, Politics and Law), IF Press, Roma, 2018. Mosoff, Judith, “Is the Human Rights Paradigm ‘Able’ to Include Disability: Who’s In? Who Wins? What? Why?” Queen’s Law Journal (2000) 26.1: 225– 276. Newman, David, “On Borders and Power: A Theoretical Framework”, Journal of Borderlands Studies (2003) 18.1: 13–25. Pastore, Baldassarre, Semantica della vulnerabilità, soggetto, cultura giuridica (Semantic of Vulnerability, Subjects, Legal Thought), Giappichelli, Torino, 2021. Preterossi, Geminello, “La dimensione sociale della vulnerabilità” (The Social Dimension of Vulnerability), in Giolo, Orsetta, and Baldassarre Pastore (eds.), Vulnerabilità. Analisi multidisciplinare di un concetto, Carocci, Roma, 2015. Quadagno, Jill, “Institutions, Interest Groups, and Ideology: An Agenda for the Sociology of Health Care Reform”, Journal of Health and Social Behavior (2010) 51.2: 125–136. Quadagno, Jill, “Why the United States Has No National Health Insurance: Stakeholder Mobilisation Against the Welfare State, 1945–1996”, Journal of Health and Social Behavior, Special Issue (2004) 45: 25–44. Raz, Joseph, The Morality of Freedom, Clarendon, Oxford, 1986. Shachar, Ayelet, “On Citizenship and Multicultural Vulnerability”, Political Theory (2000) 28.1: 64–89. Standing, Guy, The Precariat: The New Dangerous Class, Bloomsbury Academic, New York, 2011. Standing, Guy, “The Precariat: Today’s Transformative Class?”, Development (2018) 61.1: 115–121. Sullivan, Shannon, and Nancy Tuana (eds.), Race and Epistemologies of Ignorance, SUNY Press, Albany, 2007. Taylor, Elanor, “Groups and Oppression”, Hypatia (2016) 31.3: 520–536. Tronto, Joan, Moral Boundaries: A Political Argument for an Ethics of Care, Routledge, New York, 1993.

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Turner, Brian, Vulnerability and Human Rights, Pennsylvania State University Press, University Park, 2006. Villey, Michel, “La genése du droit subjectif chez Guillaume d’Occam”, Archives de Philosophie du droit (1964) IX: 97–127. Villey, Michel, La formation de la pensée juridique moderne, Presses Universitaires de France, Paris, 2013. Walker, Margaret Urban, “Moral Vulnerability and the Task of Reparations”, Vulnerability: New Essays in Ethics and Feminist Philosophy (2014): 110–133. Wild, T. Cameron, “Social Control and Coercion in Addiction Treatment: Towards Evidence-Based Policy and Practice”, Addiction (2006) 101.1: 40–49. Woodly, Deva, “Seeing Collectivity: Structural Relation Through the Lens of Youngian Seriality”, Contemporary Political Theory (2015) 14.3: 213–233. Young, Iris Marion, Justice and the Politics of Difference, Princeton University Press, Princeton, 1990. Young, Iris Marion, “Gender as Seriality: Thinking About Women as a Social Collective”, Signs: Journal of Women in Culture and Society (1994) 19.3: 713–738. Young, Iris Marion, Inclusion and Democracy, Oxford University Press, Oxford, 2000.

CHAPTER 7

Vulnerability in a Positional Sense: The Case of Clinical Trials

Introduction In the previous chapters, I have distinguished a possible meaning of group vulnerability, which I have called positional. In this case, group vulnerability depends on a similar positioning of several individuals within a given context, that conditions their possibilities of action, and above all affects their ability to protect from risks and uncertainties, and to cope with the consequences of these risks and uncertainties. Vulnerability has in this instance nothing to do with the identity (claimed or ascribed) of the persons to whom it refers, except in a contingent way: to be more precise, people belong to the group by virtue of their common positioning with respect to certain conditions, but they do not define their own identity by virtue of this positioning (or at least not necessarily). Additionally, these people are perceived as members of the group, from the outside, exclusively because of this positioning, and not due to a real or supposed common identity. A person is included in a group only because of some traits (physical, social, economic…) that are common to other persons with respect to the same context of risk. In short, not only is there no common identity claimed by the subjects (a religious, or ethnic identity, or other), but there is also no common identity that is somehow ascribed to the members of the group from the outside, whether they want it or not. In this sense, one could use the © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 F. Macioce, The Politics of Vulnerable Groups, Critical Political Theory and Radical Practice, https://doi.org/10.1007/978-3-031-07547-6_7

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term “category”, or “series” rather than “group” for the sake of clarity, but the possible ambiguities would not be resolved in any case: what is indeed important, is to highlight that people are included in a group only because, in a contingent way, there is a common occurrence of certain conditions of vulnerability, but within this frame, each subject continues to pursue his or her individual aims. Belonging to the group does not depend here on what the individuals are, but on their position with respect to a context of risk or uncertainty, and on the possibilities that these subjects are given or precluded. Therefore, not only does group vulnerability not refer to the ontological characteristics of the subjects, but also it is not even linked to forms of systemic violence or oppression, directed towards certain people because they belong to that group (as in the case of identity-based group vulnerability). Forms of discrimination and oppression are possible, but they are not as relevant as “positional” factors, being rather second-order elements in determining the vulnerability of individuals. Vulnerability is correlated here with a common positioning—with respect to certain factors—shared by subjects who are unrelated in every other respect, and who are therefore included in the group only as long as, and to the extent that, these factors persist (Young 1994, 728). Furthermore, it should be recalled that the category of group vulnerability is politically relevant because it allows the level of collective needs to emerge from the level of individual interests. A vulnerable group does not simply put forward more or less reasonable interests, in the public sphere, as alternatives to other interests advocated by other subjects and groups, but it displays needs whose dissatisfaction determines specific conditions of vulnerability. For this reason, by shifting the focus from individual claims and demands to the manifestation of collective needs, the consideration of group vulnerability can be a way to favour social inclusion: it favours the consideration of the needs of those who do not have a voice, those who do not have the capacity and means to make claims in the public sphere and thus guarantee a fairer distribution of resources and a more careful provision of protection measures. Clinical trials represent a context in which conditions of positional vulnerability can be clearly identified. Trials represent an interesting point of view on group vulnerability because, traditionally, vulnerable groups are in this case identified with regard to a common positioning of those involved, with respect to the risks represented by clinical and pharmacological research, and the particular relevance of these risks in relation to

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elements of fragility typical of certain categories. At the same time, this vulnerability is irreducible to the individual dimension, because it refers to common information and protection needs, and depends on physiological and/or social characteristics allegedly shared by all the members of the group, even if in different ways, according to the resources each person has. Lastly, this is an area of particular interest today, at a time when the COVID-19 pandemic has not only turned the spotlight on the procedures, methods, and aims of clinical and pharmacological research, but it has also led to unforeseen and unimaginable public choices being made precisely in the name of protecting vulnerable groups and categories (Prainsak 2020). Public health measures are as onerous as useful, and are imposed in a short space of time and with extra-ordinary decision-making procedures, with the explicit aim of protecting specific groups that are particularly vulnerable in this context.

Positional Vulnerability and Consensus In the bioethical literature concerning the category of vulnerable group, and discussing its evolution, the case of the Tuskegee studies is often referred to. During the period 1932–1972, the US Public Health Service conducted a syphilis study among 600 African American males (400 positive and 200 negative) living in rural Tuskegee in Macon, Alabama. The researchers informed the participants, most of whom were very poor and with low levels of education, that the study treatment would help them cure syphilis. However, despite the discovery of an effective treatment for syphilis (penicillin) at the time when the study was in its early stages, more than 400 men were intentionally left without effective and available treatment, and it was concealed that one of the aims of the study was in fact to examine the long-term effects of the disease—rather than to cure them (Brandt 1978; Yearby 2016). A case like this shows how the vulnerability of a group of people can depend on situational factors (poverty, illiteracy), and determine a common position of vulnerability by increasing the risk for the people enrolled in a clinical trial: the vulnerability of the people involved in a trial, in cases like this, does not depend on the characteristics of the trial, but on the incapacitating effect of economic and social factors common to the subjects enrolled, which expose them to forms of exploitation or deception, and which prevent their need for care and information from being adequately considered and protected. In this sense, the Tuskegee

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case confirms a way of interpreting vulnerability that is quite typical of the bioethical thinking: the “traditional” enumeration of vulnerable groups in the context of bioethics, in fact, stems from the idea that some physical, mental, or existential conditions can negatively affect the situation of some groups of people in the healthcare context, either because they expose these subjects to a higher-than-standard risk of harm, or because they imply a lower-than-standard capacity to protect themselves or to cope with this risk. Thus, since the Belmont Report, the factors identified as predictive of a condition of vulnerability include environmental, political, social, and economic conditions, possibly interrelated with existential factors: economic conditions of disadvantage may, within unfavourable institutional contexts, produce clinical conditions of fragility, or pathological conditions, and vice versa, particular health conditions may lead, in certain contexts, to forms of social vulnerability, loss of work and income, and so on. In short, vulnerability depends on the context and on the specific situation in which the individual finds him/herself, although the effects of this vulnerability can greatly vary depending on the subjective resources and the degree of resilience of the individual in that given context (Rogers et al. 2012; Mackenzie et al. 2014, 7). The recurrence of such conditions of vulnerability, determining a higher exposure to risk and a lower capacity to protect oneself, has traditionally been addressed, in both national and international law, with reference to the topic of consent. This is due to the assumption that if to be autonomous means to be able to self-determine based on reasons that one may recognise as one’s own, a person is all the more autonomous the less he or she is exposed (i.e. vulnerable) to the pressure of external factors, circumstances, and subjects. Conversely, the more vulnerable a person is, for example, due to one’s physical, psychic, economic, or social conditions, the fewer the margins within which he or she can exercise autonomy. The discipline of informed consent is, therefore, the legal framework within which the autonomy of the person is protected, and the incidence of vulnerability is mitigated.1 1 A recent Italian Law (L. 219/2017, art. 1) states (translation mine) that “every person has the right to know his or her own health conditions and to be informed in a complete, up-to-date and understandable manner regarding the diagnosis, prognosis, benefits, and risks of the diagnostic tests and health treatments indicated, as well as regarding the possible alternatives and the consequences of refusing health treatment and diagnostic tests or of renouncing them. He/She may refuse to receive the information in whole or in part, or may indicate family members or a person he/she trusts to receive it and to give

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Along these lines, one can understand why the relevant regulation for clinical trials, when considering the possibility of enrolling persons belonging to vulnerable groups, highlights, on the one hand, the need to minimise risks (where vulnerability is linked to higher exposure to them), and on the other hand imposes additional safeguards to guarantee the autonomy of the people involved (where vulnerability is linked to reduced autonomy or decision-making capacity). Consider, for example, the International Guidelines for Biomedical Research Involving Human Subjects adopted by CIOMS, where vulnerability is explicitly understood as the incapacity of some subjects to protect their interests (van Delden and van der Graaf 2017, 135): “Vulnerable persons are those who are relatively (or absolutely) incapable of protecting their own interests. More formally, they may have insufficient power, intelligence, education, resources, strength or other needed attributes to protect their own interests”.2 The CIOMS guidelines state that vulnerability is a general condition of lack of power (incapacity to protect one’s interests) owing to multiple factors, and refer to it as a specific condition of certain groups or categories of people, in a supra-individual perspective. Thus, in addition to minors (Guideline 14) and persons not capable of giving valid consent due to mental or behavioural disorders (Guideline 15), the Commentary on Guideline 13 provides an actual list of vulnerable groups: persons in subordinate positions in highly hierarchical contexts (“Examples of such groups are medical and nursing students, subordinate hospital and laboratory personnel, employees of pharmaceutical companies, and members of the armed forces or police”), elderly persons with forms of senile dementia or who are institutionalised, people receiving welfare benefits or social assistance, poor people and the unemployed, people in emergency departments, ethnic and racial minorities, the homeless, nomads,

consent on his/her behalf if the patient so wishes. The refusal or waiver of information and the indication of a person in charge, if any, shall be recorded in the patient file and in the electronic health record. (Paragraph 4) Informed consent (is) acquired in the manner and by the means most appropriate to the patient’s condition”; It also specifies that consent relates to “any diagnostic check-up or medical treatment indicated by the doctor” or even “individual acts of the treatment itself” (paragraph 5), and is binding on the doctor, who “is obliged to respect the patient’s expressed will to refuse medical treatment or to renounce the same and, as a result, is exempt from civil or criminal liability” (paragraph 6), although the doctor is not obliged to comply with the patient’s requests that are contrary to the law, deontology, or good clinical practice. 2 CIOMS-OMS Guidelines 2002, Commentary on Guideline 13.

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refugees, prisoners, patients with incurable diseases, subjects who are politically powerless (“politically powerless individuals”) and members of communities that are “unfamiliar with modern medical concepts”.3 In almost all cases, these are groups and categories of people whose vulnerability leads to a reduced decision-making capacity, i.e. to a reduced capacity to give free and informed consent to research. Not dissimilarly, the EU Clinical Trials Regulation of 20144 Article 10 (“Specific considerations for vulnerable populations”) states that for certain groups and categories (minors, incapacitated persons, pregnant or breastfeeding women, or other groups or subgroups) specific precautions and procedures are required to obtain authorisation for enrolment in a clinical trial, due both to a reduced capacity to make decisions and to an increased risk of harm or injury. In this sense, the Regulation sets out in articles 31–33 particularly stringent guidelines for the acquisition of informed and free consent by minors, incapable subjects (vulnerability as a reduced ability to safeguard their interests), or pregnant or breastfeeding women (vulnerability as a situation of increased risk), as well as, in art. 34, for other people who find themselves in contexts of hierarchical or institutional dependency likely to influence their ability to express consent (therefore, once again, vulnerability as a reduced ability to express free consent). With the same oscillation, Recital 15 refers to the condition of the vulnerability of “frail or older people, people suffering from multiple chronic conditions, and people affected by mental health disorders” to encourage the inclusion of these categories in research precisely to limit their vulnerability, and Recital 31 refers to subjects belonging to an “economically or socially disadvantaged group”, or to a context of possible manipulation and exploitation as a determinant of vulnerability (Gennet et al. 2015). On a theoretical level, the link between informed consent and autonomy has been the subject of intense criticism in recent decades, prompted by very different perspectives, but all of them aimed at emphasising the relational and non-individualistic character of autonomy (Friedman 1986; Meyers 1989), as well as the non-linear connection between informed consent, autonomy, and vulnerability (Anderson and 3 Ibidem. 4 Regulation (EU) No 536/2014 of the European Parliament and of the Council of

16 April 2014 on Clinical Trials on Medicinal Products for Human Use, and Repealing Directive 2001/20/EC Text with EEA Relevance.

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Christman 2005; Macioce 2019a, 2019b). In this sense, autonomy is interpreted both as a concept of degree and in a relational perspective, since the social conditions that support autonomy and make it possible are also the factors that determine its enhancement or reduction: autonomy exists only in the context of social relations, because these relations support it, and give sense to the awareness of being autonomous (Nedelsky 1989, 25; Stoljar 2000; Friedman 1989; Anderson 2003). In other words, the capacity to make autonomous choices, i.e. choices that can be recognised as one’s own and as corresponding to one’s objectives (Anderson 2008), depends on a series of conditions, which are at the same time normative, institutional, and social (or more generically relational). Each agent is placed in a historical, social, class, racial, and gender context, which has a significant impact both on the conception of the self and on one’s actual capacity of acting. Each of us, when we consider ourselves to be endowed with normative authority over our actions (i.e. properly, autonomous ), presupposes existential conditions that underpin the exercise of autonomy: this capacity, in short, “can only be sustained in relations of intersubjective recognition” (Mackenzie 2008, 514). I do not intend here to discuss the reasonableness of this approach— which I find very convincing—or the consequences for the law regulating informed consent. Rather, I am interested in discussing, from such a relational perspective, how the Covid-19 pandemic has created partially new conditions of group vulnerability (in the positional sense), and how these group vulnerabilities are both relevant, and actually taken into account, for health treatments and participation in vaccine trials. I will explore these issues in the next two paragraphs, respectively, to show the usefulness of the notion of group vulnerability, as well as its non-reducibility to a purely individual dimension.

Group Vulnerability and Pandemic The “traditional” enumeration of vulnerable groups, as we have seen, is based on the idea that certain physical, mental, or existential conditions can negatively affect the situation of certain groups of people in the health context, either because they expose these subjects to a higherthan-standard risk of harm, or because they imply a lower-than-standard capacity to defend themselves or to cope with this risk. In general, this is a vulnerability that depends on the context and the specific situation in which the person finds him/herself, even if the effects of this vulnerability

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may vary greatly in intensity depending on the subjective resources, and the degree of resilience of these persons in that context. More specifically, social determinants of health are generally known to influence the vulnerability of individuals and groups5 : these determinants include, for example, education, income, wealth, type and conditions of employment, availability of and access to health services, housing, physical environment, social environment, and more (Marmot 2018). However, it is important to note how, during a pandemic, some of these become particularly relevant and sources of increased vulnerability for specific groups (Macioce 2021). In other words, specific forms of situational vulnerability depend on the effects of the pandemic on certain groups, due to the pressure exerted on certain social determinants of health. For example, it is known that the act of washing hands frequently is one of the behaviours that more than any other reduces the risk of contagion: thus, the fact that for almost two billion people in the world it is not materially possible to put this behaviour into practice represents a primary social determinant of exposure to contagion, and therefore of vulnerability (Hannah et al. 2020). Therefore, if on the one hand the conditions and social relationships in which people and groups are inserted constitute a known factor in the mortality and morbidity rates of the population, the pandemic acts on these factors by increasing the role these factors play on people’s health and producing outcomes that highlight the inequalities and vulnerable conditions of these groups (McNeely et al. 2020, 207), as well as exacerbating in turn the incidence of these socio-economic factors, in an almost circular way. The Covid pandemic increases the importance of the factors that produce inequalities concerning the right to health, both because it “aggravates” already unfavourable socio-economic conditions, and because it makes such conditions an obvious risk factor in the exposure to contagion and the severity of the outcomes.6 As the UNESCO International Bioethics Committee correctly pointed out, “Vulnerable individuals become even 5 Social determinants of health identify the conditions “in which people are born, grow, live, work, and age and the systems put in place to deal with illness” (World Health Organization [WHO], Closing the Gap in a Generation: Health Equity Through Action on the Social Determinants of Health, WHO, Geneva, 2008). 6 As the WHO points out, “(health equity) exists only when people have an equal opportunity to be healthy. Health inequity, therefore, is the unfair and avoidable difference in health status” (WHO, Closing the Gap in a Generation: cit.): the pandemic, in this sense, is an astonishing factor generating inequalities in guaranteeing the right to health.

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more vulnerable in times of pandemic. It is particularly important to take note of vulnerability related to poverty, discrimination, gender, illness, loss of autonomy or functionality, elder age, disability, ethnicity, incarceration (prisoners), undocumented migration, and the status of refugees and stateless persons”.7 Among these factors, the relevance of the economic factor is undoubtedly the most immediately perceptible. The levels of income and distribution of wealth in the population are indeed factors that more directly and evidently influence exposure to the risk of contagion than others, especially in the interaction with other elements (Banik et al. 2020). The scarcity of economic resources can affect exposure, access to health care, the possibility of receiving assistance, and the subject’s social behaviour (for example, in the effective possibility of limiting travel or taking advantage of home working (Vaughan and Tinker 2009; Iacobucci 2020; Drefahl et al. 2020). In this sense, for example, some authors have identified social housing residents, single-parent families, and low-income populations as being at greatest risk during a pandemic. With limited financial resources and unstable income, such groups include people who may be forced to live in inadequate housing, i.e. with inadequate and crowded sanitation facilities (Wallace et al. 2020), both factors that increase the risk of exposure during an epidemic. Similarly, many studies have shown that people with lower incomes may have no alternative to using public transport, which in turn is an important source of exposure to the contagion (Blumenshine et al. 2008). In a similar sense, the conditions and the type of work are relevant factors; for example, occupations that involve physical proximity (care jobs, domestic work, public transport), and which in turn are prevalent among the population groups with more limited economic resources, represent an element of strong exposure and an increased risk of contagion (Burström and Tao 2020). Not only that, but also the risk of worse or fatal outcomes in the course of the disease is related to factors such as a worse state of general health, the presence of cardiovascular and liver diseases, diabetes and cancer, all conditions which have an inversely proportional relationship to the socio-economic conditions of the population (Sommer et al. 2015). The economic factor, and in general unfavourable socio-economic conditions, are elements intertwined with other factors in determining 7 UNESCO—IBC: “Statement on COVID-19. Ethical consideration from a global perspective”, 2020.

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conditions of vulnerability for particular social groups, such as ethnic minorities. Lower levels of education, socio-economic status, worse housing conditions, and less insurance coverage (especially in contexts where health care is not universal) and worse access to health services (Macioce 2019c), in fact, significantly contribute to determining higher rates of morbidity and mortality among these groups compared to the “general” reference population (Thomas 2014). If this is generally true, the conditions linked to the pandemic exacerbate the incidence of these factors, and lead to greater vulnerability in terms of both exposure to risk and severity of outcomes for those belonging to these groups (Yaya et al. 2020; Farley et al. 2020): for similar reasons, a higher incidence of infections has been verified among people belonging to ethnic minorities and economically disadvantaged sections of the population, generally employed in sectors such as catering and health care in which the exposure to risk factors is greater, or personal care and service work that is incompatible with effective social distancing. Other vulnerability factors emerging from the pandemic relate to health literacy or barriers to accessing health services. Regarding the first factor, it can be noted that the degree of competence and awareness with which people obtain, receive, and evaluate the information, in order to make competent decisions on health matters, is linked to the general level of education and ability to use information technologies. These skills are present in an inversely proportional measure to the socio-economic level of the subjects and are often very lacking in groups such as ethnic minorities, irregular migrants, and the elderly. To the extent that health literacy is crucial in determining competent choices and behaviours in health matters, these groups become vulnerable in the context of a pandemic precisely on account of the combined effect of multiple factors increasing the exposure to risks (Van den Broucke 2020). As for the second factor, it has unfortunately been known for some time that access and use of health services can be particularly burdensome for specific groups, due to language barriers, poor knowledge of bureaucratic procedures and mechanisms, fewer relational support networks, or directly xenophobic attitudes in the community of residence (Rechel et al. 2013; Montesi et al. 2016). All these, and more, are factors that, by limiting or hindering access to health services, represent conditions of vulnerability for specific groups (for example, newly established migrant communities) in relation to the health emergency and the ability to cope with it.

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In the opposite sense, it is interesting to note how the Sars Cov 2 virus has altered the horizon of group vulnerability, as it were. Groups traditionally considered as vulnerable seem to show particular resilience to the virus, in a way that is not entirely expected and predictable: very young children, for example, do not represent a particularly vulnerable group in the current context of the pandemic, as significant rates of morbidity and mortality have not been shown (Sominsky et al. 2020), compared to other far more vulnerable groups. Similarly, pregnant women, normally considered vulnerable to other viral infections (chickenpox, measles, other influenza viruses), being likely to have negative health consequences for the foetus (such as influenza H1N1 or Zika), do not appear to be exposed, in a significant way, to the risks associated with the Sars Cov 2 virus (Rasmussen et al. 2020).

Treatments, Trials and Informed Consent: The Case of Vulnerable Groups The issue of group vulnerability has assumed particular relevance in the context of the pandemic because, as mentioned, both the pandemic itself and the restrictions put in place to limit contagion have generated new forms of group vulnerability, or aggravated pre-existing conditions of vulnerability. Additionally, group vulnerability has gained importance in relation to a more “traditional” context, so to speak, namely in relation to health treatments and participation in trials aimed at developing vaccines: what emerges—in a manner consistent with prominent bioethical principles in this area—is the need for the provision of additional precautions and reinforced safeguards in the context of research, concerning people belonging to groups identified as vulnerable, and the risks to which they are exposed. As some authors rightly note (Van Delden and van der Graaf 2017), if the vulnerability is situational, similarly precaution and forms of protection should be shaped for the specific case, beyond pre-established paradigms and the risk of labelling. In this line, the prospective change adopted in the CIOMS Research Guidelines appears very reasonable, since the traditional approach based on the preventive identification of vulnerable groups is replaced by an approach based on case analysis: “The account of vulnerability in this Guideline seeks to avoid considering members of entire classes of individuals as vulnerable. However, it is useful to look at the specific characteristics that may render individuals

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vulnerable, as this can aid in identifying the special protections needed (…) Different characteristics may also co-exist, making some individuals more vulnerable than others. This is highly dependent on the context”.8 On the one hand, group vulnerability is therefore context-dependent, and cannot be deduced prejudicially from the common characteristics of a group of people (minor age, economic status, etc.) participating in research. On the other hand, the fact that vulnerability must be detected by induction from the analysis of actual cases does not mean that it is reduced to the individual dimension, or that it is not possible to speak of vulnerable groups or to postulate their existence. The group dimension of vulnerability remains, but it must be understood as a presumptive element, as a fact that must be verified in practice, and which can be denied in the context. However, once again, this is a fact that—on this level of mere presumption—brings together groups and categories of people, placing them in a condition of increased risk concerning participation in a specific clinical research. And so, the condition of people living in old people’s homes or psychiatric hospitals, or people in prison, is a condition which places these subjects up against a greater risk, if enrolled in clinical research, related to the possibility that their inclusion in an environment which is intrinsically coercive affects their freedom to express consent. Or again, women can be considered a vulnerable group if the specific circumstances in which they live (a cultural, family, or social context in which manifestation of their will is bound to authorization by the spouse or father) and the specific characteristics of the research place them in a severely limiting condition regarding the possibility of giving consent and exercising control over their own choices. Returning to the previously mentioned examples, people living in poverty or the homeless, or people receiving welfare benefits and social assistance can be considered vulnerable, if the specific conditions in which they live (for example, the limitations they encounter in accessing health care), and the modalities of the research, suggest the presence of constraints and limited freedom in decision-making.9 If this paradigm is applied to the current situation, therefore, it is the specific task of those conducting clinical research to foresee, and model,

8 CIOMS, International Ethical Guidelines, cit., Guideline 15, p. 47. 9 These, are all examples included in the same CIOMS Guidelines in the commentary

to Guideline 15.

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specific forms of guarantees for groups that can be considered vulnerable, so that there are no more than minimal risks involved for procedures that offer no direct benefits for research participants; and it is always up to them to verify that research is conducted only when it refers to conditions specifically affecting these groups. The problem is that, in the context of the pandemic, the identification of vulnerable groups, and therefore of the subjects for whom precautions and additional forms of protection are required, not only cannot be solved by referring to pre-established classifications, but it also presents unprecedented difficulties. In fact, not only are many conditions of vulnerability exacerbated, but also new vulnerabilities emerge (with additional difficulties, precisely due to this novelty, in detecting them and understanding their dimensions and characteristics), and the factors that these vulnerabilities determine or aggravate intersect in unprecedented ways. Consider, for example, the case of the elderly, who, as we have seen, can be identified as a particularly vulnerable group in the context of the COVID-19 pandemic, due to the high mortality and morbidity rates recorded in this segment of the population. However, considering this group as particularly vulnerable can lead to exclusion of the people belonging to it from enrolment in clinical trials, or in any case their participation in research takes place in compliance with far more stringent and limiting conditions. If this is what has happened in some recent vaccine trials (Helfand et al. 2020), the effect of this exclusion tends to increase the vulnerability of this group, rather than reduce it, because it produces an important lack of data and analyses on efficacy, dosages, and side effects on a group of patients which, paradoxically, is one of those most affected by the virus and suffers its effects most severely. Similarly, the exclusion or severely limited participation in transnational trials of people residing in economically depressed areas or with very low per capita income stems from excellent reasons. These reasons are mainly linked to doubts concerning the quality of the procedures for informed consent and effective freedom of individual choice, the presence of a “double standard” regarding the use of placebo (de Zulueta 2001), the availability of treatments and post-trial care, the absence or weakness of norms and local institutions that should protect the interests and dignity of individuals with regard to the commercial interests of those who fund research, and so on (Angell 1997; Varmus and Satcher 1997;

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Luna 2007). Such arguments, as mentioned, are more than reasonable,10 and moved by consideration of the specific vulnerabilities of populations in developing countries: the idea that Africa, to put it plainly, should not be a kind of haven for under-regulated trials, within a para-colonialist paradigm, makes perfect sense.11 And yet, the strong limitations and cautions linked to this vulnerability are likely to bring about, in the context of the pandemic, further, unintentional vulnerabilities for these very same populations: as different researches have pointed out, vaccine trials could fail to take adequate account of important factors in the evaluation of immune response and disease course, for example, to the extent that these are influenced by genetic variants (Burgess 2021). The justified concern for the (economic, infrastructural) vulnerability of certain populations can in short generate, if taken as absolute, new vulnerabilities, or, at least, may not lead to desired outcomes, but rather worsen the conditions of the populations involved. If, as already noted in other contexts, ethnicity can influence immune responses and the effectiveness of vaccines, the exclusion of African countries from the trials could expose these populations, even unintentionally, to greater risks (Singh 2020).12 In this context, in which the “traditional” conditions of vulnerability are modified or intertwined with other and new conditions determined by the pandemic, the tools for mitigating the vulnerability itself must be in turn modelled taking this context into account, and the specific conditions and forms of the vulnerability of each group. From this point of view, the procedures for obtaining informed consent, that specifically represents one of the most typical tools for “empowering” the person undergoing health treatments, must be modelled in such a way as to make

10 Even though, as clearly explained in the CIOMS International Ethical Guidelines for Health-Related Research Involving Humans, this paucity of resources and low level of income cannot be understood as a “local” factor, that is, linked exclusively to economically disadvantaged areas and countries: “Low-resource settings should not be interpreted narrowly as low-resource countries. These settings might also exist in middle- and highincome countries. Moreover, a setting can change over time and no longer be considered low-resource” (Guideline 2). 11 The WHO Director-General expressed this concern explicitly: “Coronavirus: Africa will not be testing ground for vaccines, says WHO”, BBC, 6 April 2020. https://www. bbc.com/news/world-africa-52192184. Accessed 26 July 2021. 12 On this point, J.A. Singh, The Case for Why Africa Should Host COVID-19 Candidate Vaccine Trials, Perspective. The Journal of Infectious Diseases (2020) 222.3: 351–355: https://academic.oup.com/jid/article/222/3/351/5850913.

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them not only effectively capable of transferring the necessary information in a specific context but also suitable, for each group of people, to make the care and protection needs linked to the specific condition of vulnerability emerge. On the one hand, it is certainly true that the procedures for obtaining consent are in themselves tools for mitigating vulnerabilities, as they reduce the margins within which people are at risk, owing to their vulnerability, to be manipulated, exploited, deceived, or in any case exposed to the pressure of uncontrollable factors (Anderson and Honneth 2005, 130). And above all, the fact that information must be provided in a modality appropriate to the conditions of the person whose consent is being sought13 is an indication that the vulnerability factors should not be considered abstractly, but starting precisely from the concrete situation, from the specific conditions of vulnerability to which a person is exposed. On the other hand, by adopting a relational approach, we can rethink the current model of informed consent, to overcome both its bureaucratic feature and its assumed ethical neutrality (Corrigan 2003, 770). In other words, we should abandon the idea that perfectly autonomous individuals, once provided with adequate information and sufficient time for consideration, will be able to make decisions in relation to treatments, or participation in trials, or the management, storage, and usability of their data, which they may recognise as their own. And the fact that in the pandemic context the vulnerabilities are not only—as always—situational, but also largely unprecedented, makes this procedural approach even less appropriate. In order to overcome this approach, and to rethink consent in a relational direction, the process of informed consent must be modulated taking into account, in addition to its information content, the context within which it is implemented, the power relations, the symbolic and discourse contexts that support and shape it (Corrigan 2003, 771), since all this gives shape to people’s real possibilities to make choices, and their real possibilities to exercise personal freedom. In this vein, consideration of the conditions of vulnerability associated with certain groups—understood as an ensemble of people placed in a similar position in relation to determine risk factors—is crucial precisely because it 13 For example, the aforementioned Italian Law 219/2017, art. 1, paragraph 4: “Informed consent (is) acquired in the ways and with the tools most suited to the patient’s conditions”.

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allows the emergence and visibility of the specific needs of those people belonging to it, both in communicative and relational terms. For example, in the context of the procedures for obtaining consent to participate in a trial, it is necessary—in addition to information on the risks and benefits, and any other information that the main national and international regulatory instruments rightly require14 —that there should also be consideration of subjective perceptions concerning the efficacy of the object of the trial, or healthcare professionals’ required knowledge (Murshid et al. 2016; Weinfurt et al. 2003), the role and involvement of family members, the expectations regarding the type of relationship between patient and researcher, the role played by the institutions to which reference is made and which promote research, and many other factors (Bielby 2009, 153). But beyond that, it is necessary to take into account those specific needs that vulnerable groups manifest, and which are not reducible to the many, and variable, individual interests: a vulnerable group does not simply manifest interests that are more or less reasonable, but needs that are unmet and determine specific conditions of vulnerability in a given context. For example, the vulnerability of “the very elderly” in the context of the pandemic cannot be reduced to the level of individual interests of patients, concerning the information which may be needed due to the relational context in which they are placed, which the healthcare and research personnel must take responsibility for within the framework of the information process. The vulnerability of this group is also related to specific common conditions (on a clinical and epidemiological level, for example) which the subjects are not necessarily aware of, and which nevertheless determine specific information, relational, and care needs. In this sense, communication within informed consent procedures cannot overlook the consideration of the vulnerability of groups, as well as individuals, because only at this level is it possible to build inclusive information and communication processes, in which the need for protection and care stemming from the common positioning of subjects belonging to a group or category obtain an adequate response. All of which implies that the communication process cannot be conveyed by a form or reduced to a series of information conveyed in a top-down direction, and least of all that such information can be standardised in models valid for everyone: conversely, the communication depends 14 In the Oviedo Convention, for example, see arts. 5 et seq, but also 10 (on the right to information), 16 (on participation in experiments), 19 (on donation and transplants).

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on the context, on the relevant relationships in that particular case, on the subjects involved, and on the common needs of specific groups. These are elements that set aside, at least to a certain extent, the subject of the communication and its informational content, highlighting instead the relevance of the methods of communication, and the people involved in the communication process; but above all these are elements that can only be adequately assessed within a communicative context characterised by trust and entrustment (Schrems 2014). The information underlying the consent must, therefore, be devised in the context of the relationship between doctor and patient, or researcher and trial participant; that is, they should not be thought of as something that is transferred from one subject to another—and which, therefore, pre-exists the relationship—but as something that is produced within the relationship itself, due to the characteristics and purposes of the participants in the interaction (Manson and O’Neill 2007, 32; Macioce 2019c). Therefore, the information is adapted and relevant not in abstract terms, or solely considering the patient’s clinical condition, but depending on what the participants in the interaction do, think, expect, deem to be important, and on the wider context within which they are placed. Consent is informed not only depending on the quantity and quality of the information that is exchanged but also on the modality and relational context within which this exchange takes place. What makes the information truly adequate, in other words, is the relationship of trust that is established between speakers, and the consistency of their methods of interaction and dialogue with the affirmation and preservation of trust. Negatively, this also means that communication can fail not only on account of the quantity and type of information that is conveyed, but also on account of how the participants in the communication interact: and consequently, regardless of the quantity, adequacy, and relevance of the information, the outcome of the communication may strengthen the patient’s vulnerability, despite having—as a merely theoretical possibility—guaranteed autonomy. In short, what guarantees the people, and reduces their vulnerability, is not the quantity or quality of information they receive (an important element in any case), but the dialogical relationship with the other, with the doctor or healthcare personnel, which constitutes the basis for a relationship of trust within which the person expresses his/her consent. In the context of the pandemic, the role of trust is certainly very relevant (Dawson et al. 2020), perhaps even more than it already normally

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is. First, because a pandemic affects the relationship of trust between rulers and citizens (with respect to the effectiveness of the contagion containment measures, the management and tracking of contacts, the information which is communicated through the media, and so on); second, given that, in the face of a new virus, the investment of trust that is required of the whole community concerns the entire process of trials and mass vaccination and involves public institutions, research bodies, healthcare institutions, pharmaceutical companies, and others. In short, it involves systems and actors much broader and more complex than those normally involved in a clinical trial, in a context of urgency and with variables, therefore, being less controllable. Thus, as the Nuffield Council correctly pointed out in a recent statement on pandemic management health policies, “trust is essential in order to maintain support on the part of the general public for the measures proposed: without such trust, compliance with those measures is likely to be low”.15 In this sense, clear, transparent, and reliable communication of the “measures” adopted and the justifications that support them, as well as the risks and uncertainties of faster than usual trials, takes absolute priority not only for the health personnel directly involved, but above all for public institutions. Discussing in the media in a confused, non-transparent, and often contradictory manner—which unfortunately has happened in some European countries—is certainly a choice that does not contribute to building a relationship of trust between citizens and public institutions. It is equally important, however, that public institutions play a primary role in communicating with patients and people involved in the trials, or rather that the onus of providing the information is not left entirely to research teams: the specific conditions determined by the pandemic, and in particular, the need for a mass vaccination campaign, entail that the communication and information needs of vulnerable groups are met in a perspective consistent with generally changed conditions. The measures adopted to deal with the pandemic, as well as the specific methods of managing the trials, represent a significant, and incredibly rapid, paradigm shift on a cultural level: they have determined a shift of the cornerstone of clinical ethics from “the single individual patient to the public interest”. And public institutions—protagonists in taking decisions in the context of the pandemic—must underline how this step involves no 15 Nuffield Council of Bioethics: “Ethical Considerations in Responding to the COVID19 Pandemic”, 2020, p. 3.

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conflict between individual and collective interests; on the contrary, what stems from the adoption of a “relational perspective”, based on which a person’s autonomy “always” manifests itself (not only during pandemics) within networks of social relations, and that individuals, insofar as they are internal to this system of relations, have interests that are not distinct from those of society as a whole (Anderson 2014; Friedman 1989; Meyers 1989).

Conclusions In the context of research, and especially concerning participation in trials aimed at the development of vaccines, there is, therefore, a need for specific precautions to be put in place about the risks to which people belonging to groups identified as vulnerable are exposed, and therefore those conducting the research are to provide such guarantee tools for those who, in the context of the pandemic, can be considered as particularly vulnerable. All this, as mentioned, even where identification of these vulnerable conditions proves to be particularly complex, given the new way in which the effects of the pandemic interact with more known and typical elements of vulnerability. It is important to consider that the pandemic not only affected the vulnerability of individuals and groups, for example, due to the pressure on certain social determinants of health, but it also has somehow altered the horizon of group vulnerability, in such a way as to make traditional vulnerability categories not applicable, or at least not in an automatic way. In this context, it is essential that in the procedures for obtaining consent to participate in a trial, not only is the relevant information to be provided, but consideration is also to be given to subjective perceptions and expectations, and the role of the institutions to which reference is made, and which promote research; above all, it is necessary to take account of the specific needs (of an informative type, but also a social and relational type) that vulnerable groups manifest, and which are not to be reduced to the many, variable, individual interests. To this end, the role of public institutions is crucial: alongside the health personnel and research teams, only if public institutions carry out a task that is as informative as it is supportive, consent will be based not only on adequate information, but also on interpersonal trust (towards health personnel) and systemic trust (towards institutions), thereby making it effectively expressive of the individual’s autonomy. The investment of

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trust required of the community, and related both to the containment measures and to the timeframe and trail methods, as well as to the prioritisation criteria for mass vaccination, does involve public institutions, research bodies, health institutions, pharmaceutical companies, and all the actors involved in these processes; only if people perceive that their needs (as individuals and as groups) are adequately considered by them all, will the consent they manifest truly express their autonomy and willingness to participate in research. In this vein, the category of group vulnerability has a specific usefulness. Not only does it allow for additional precautions and higher safeguards to be put in place in the context of research, with respect to the risks to which people in vulnerable conditions are exposed: this category also makes it possible to identify—precisely because the pandemic calls for applying a population perspective—the new vulnerabilities in the pandemic context, where various factors interact in not always predictable ways. Lastly—but perhaps most importantly—it makes it possible to take the needs of vulnerable groups into account, their being not reducible to the many, and variable, individual interests, but which must be present in the procedures for acquiring consent, in both clinical and pharmacological research.

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CHAPTER 8

Identity-Based Group Vulnerability: The Case of “Irregular” Migrants

Introduction As mentioned in the previous chapters, group vulnerability can relate to systemic forms of violence or oppression, directed towards certain persons as members of a group. In this sense, oppression lies not simply in processes of marginalisation and victimisation that affect the individual, but in the fact that members of the group are exposed to the same processes of oppression precisely because of their membership. Systems of oppression, therefore, affect people who are included within a group, and a supra-individual identity is attributed to these people, regardless of whether they perceive it as actually being relevant to them or not. It may also be, and it frequently happens, that such an identity is internalised, so to speak, and that the common experience of oppression gives rise to common practices of contestation, or resistance, or struggle, enacted by people not as individuals, but as groups, enabling them to enter the public scene and contest the self-reproducing mechanisms of a given system of power and oppression. Without it being necessary, either theoretically or practically, to adopt an essentialist perspective, it is possible to recognise that there are systems of relationships and mutual recognition that cannot be reduced to the mere occasional sharing of certain characteristics, having a profound effect

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on the way individuals think about themselves and about the relationships in which they are embedded (Young 1990, 44). And these systems of relations, resulting from systems of oppression, highlight the conditions of domination and privilege that are present in society, since they correspond to different possibilities of enjoying resources, opportunities, and capacities, in a way that is not dependent on the merits of single individuals. Some groups, in short, are vulnerable insofar as they experience a condition of systemic oppression, and others are privileged insofar as they enjoy, due to the pure functioning of these same systems, opportunities, and resources that are denied to others. At the same time, it should be highlighted that the condition of group vulnerability does not exclusively imply a lack of power, as if this vulnerability were the manifestation of a power that—by creating structures of oppression—condemns certain groups (the vulnerable groups) to a condition of marginality and subordination. Group vulnerability undoubtedly means this, but as already mentioned it can also be interpreted as a place of resistance to oppression, and as a context in which claims and positive actions emerge. To the extent that the discussion on vulnerability shifts from the individual to the group dimension, this condition becomes a constitutively political dimension, an opportunity for resistance and dissent, and a starting point to claim visibility and struggle for recognition. Therefore, group vulnerability not only plays a role in achieving results in terms of resources, opportunities, and rights, but it also tends to provide a new understanding of the condition of vulnerability, showing its roots and offering a different reading of the human condition, of relationships, of care labour, of corporeity. In this perspective, the condition of irregular migrants may be interpreted as an interesting case of group vulnerability. This is not only because, as we shall see, powerful mechanisms of systemic oppression are in place, at the same time producing privileged conditions for other groups and categories, but also because it represents a powerful example of identity ascription. In fact, on the one hand, it is evident that an essentialist understanding of this category of people is not even imaginable, as if the reason why an individual belongs to that group were something related to the essence of that person, to his/her nature, and so on. On the other hand, the condition of “irregular” migrants is not merely positional, as if their vulnerability depended exclusively on their common positioning with respect to extrinsic risk factors. These factors certainly exist and are unfortunately relevant, but the vulnerability of this group is

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not reducible to them: it also hinges on phenomena of oppression, exclusion, and marginalisation that rest on a common identity that is ascribed from the outside by both the media and politics (the “illegal”, “clandestine”, “illegal aliens” (Andersson 2014a, 2014b). An identity, as we shall see, that is rooted in public discourse but that in some cases is also consciously assumed from within and internalised to activate practices of contestation and resistance to those oppressive mechanisms that are at its origin.

Irregularity Conditions and Vulnerability Factors Describing the condition of non-regularity in a comprehensive and unitary manner is certainly very difficult, if not impossible, given that it depends on the intertwining of multiple factors and conditions. Therefore, it seems reasonable to overcome a certain rigidity in the description of this condition, not interpreting it as a unitary status nor as a condition of radical non-conformity; rather, it is precisely the condition of partial compliance with the law, as well as of uncertain membership, that determines the specific forms of vulnerability to which irregular migrants are exposed. The condition of irregularity is not a unitary condition, nor does it appear as a rigid and stable status. Even without formal changes in the law, although frequent, the condition of migrants can fluctuate between multiple statuses and different characteristics. Indeed, the set of conditions that usually fall under the common definition of irregularity is characterised by a wide variety of statuses and possibilities, as well as different degrees of compliance with local regulations (Menjívar 2006; Rytter 2012). The migrants’ personal experiences of irregularity depend, just as with anyone else, on the specific contexts within which they live and act, and are linked to the concrete actions performed by state and non-state entities. For instance, some migrant workers can find themselves in an irregular position with respect to local regulation concerning visas and stay permits, because legal entry as a student does not allow them to work. At the same time, however, they can continue, while residing in the host country, to access medical assistance and educational institutions. Similarly, work done by undocumented migrants can be accompanied by legitimate tax contributions, and an individual’s undocumented status is neither necessarily in conflict with claiming due process rights in criminal proceedings

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nor with accessing education and other services (Cuadra 2012; Coutin 2011). This is why the condition of “irregular” migrants should be interpreted as semi-legality (Kubal 2013; Ruhs and Anderson 2010) rather than irregularity: the category semi-legality denotes a wide range of interactions and formal relationships with the law and offers a more adequate understanding of the condition of irregularity. These different degrees of conformity to the set standards of the law challenge the rigid distinction between regular and irregular migrants (Brubaker 1992, 21), delineating a more nuanced image of the “undocumented” migrant, whose status is different from that of the subject who is entitled—or who is not entitled at all—to a set of rights depending on individual compliance with the state’s procedures and rules. What is at stake here is not an opposition between formal and substantive legality (Calavita 2006, 416), rather the fact that this condition of semi-legality, even if not exclusively typical of undocumented migrants, and along with other elements, becomes a factor that contributes to determining the particular vulnerability of this uneven group of individuals. This is so for several reasons: firstly, because this condition is only minimally attributable to the choices of individuals, being rather the result of a maze of rules and practices that often contribute to its emergence. Among the many, changing and difficult to follow regulations, the lack of legal migration channels, as well as overcomplicated, bureaucratic, and inefficient application procedures (Düvell 2011, 278). Secondly, because this semi-legality is an element of objective disadvantage, which can lead to choosing between holding informal jobs or illegally holding formal jobs, and it produces inclusion at a high price, for instance by paying higher rents for (illegal) sublets, or by accepting jobs with lower wages (Sciortino 2004). Third, it should be noted that even if the category of semi-legality is a de facto situation, the dichotomy between legal/illegal remains the only formal means of describing people’s relationship with the legal system, and defining their actions: the law being always pervasive, both by defining and threatening their existence, in a way that is largely out of their control. In short, although from a sociological point of view it can be argued that migrants’ situation is not one of absolute illegality, the dichotomy between legality and illegality often proves difficult to overcome (in relations with public administrations, for example). More than being exclusively dependent on individual choices and behaviours, this condition is the result of public policies and normative choices that

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in a certain way create patterns of irregularity, thus determining the status of irregular migrant (Samers 2004): as effectively pointed out, “Irregular migration only exists because policies determine which types and levels of migration are permitted and which are not. Thus, irregular migration is a social, political and legal construct” (Duvell 2014, 1; Betts 2010). Similarly, political membership has usually been thought of in terms of the traditional dualistic opposition between insiders and outsiders, citizens and non-citizens. However, irregular migrants escape from such a rigid dualism and risk being embedded instead in a condition of alienation and invisibility. Crowley (1999, 30) defined the politics of belonging, especially concerning migrants, as “the dirty work of boundary maintenance”, thus illustrating the fact that these politics are concerned with the definition of boundaries, both physically and symbolically, in order to define the group of “us” by separating it from the group of the “others”. Apparently, the definition of boundaries between us and them is not merely a question of place and geography, for it implies establishing what is involved in being a member of the community, and the criteria that permit group members to be identified. The link with the group identity, and thus with the values and the practices involved in the group, makes the question of membership the object of a public debate about the status and the entitlements that such belonging entails (Yuval-Davis 2016; Phillips and Robinson 2015). On the contrary, from a certain point of view, this activity of delimitation and definition of borders represents the very core of politics: as Lindahl writes, power “is never merely ‘in’ space, power also always spatializes”, and the act of establishing borders represents the manifestation of the political unity of a community (Lindahl 2006). In short, the nomos has a normative dimension, relating to the interests that a community pursues and protects (more than others, which are deemed irrelevant or harmful), and a physical dimension, since the legal order is determined and manifested within boundaries. For this reason, crossing borders is a physical and normative act at the same time. And above all, borders change even if they do not move, e.g. when duties on foreign goods change according to the importance of a certain good at a certain time (Lindahl 2006, 887). In a similar vein, Bosniak correctly observes that physical borders are not exclusively related to the limit and the frontier, but penetrate the interior, reconfiguring themselves as a continuous and pervasive response to the human mobility, whose complexity cannot be caged and regimented with a mere work of gate-keeping: so much so that the very legal definition of territory does not correspond to its simple

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spatial dimension, but is shaped around politically relevant and modifiable goals and objectives (Bosniak 2008). Now, with respect to this system of border management and implementation, the condition of irregular migrants has often been described as subversive: that is, as not reducible to this distinction between inside and outside, and to this system of border maintenance. Noll (2010), for example, has traced it back to the contemporary version of the distinction between polis and oikos, according to which the oikos is the household, within which citizens and slaves (the political and the apolitical, the insider and the outsider) are joined together to gain subsistence and profit. On the other hand, being undocumented migrants denied the agency to act out their interests, they are unable to fully access the polis, which is the prototypical space for implementing rights, and the space of the public and reciprocal recognition as community members (Noll 2010, 269). In a similar perspective, their situation has been interpreted as being related to the distance between the system of border regulation (which is one of the central aspects of government power) and the international system of rights, which recognises the rights and duties of individuals living in a territory (Bosniak 2006; Walzer 1983), and more generally as being such as to make manifest the structural fracture between the functioning of some social subsystems (such as the labour economy) that facilitate human mobility towards different areas across the globe, and other subsystems that, conversely, emphasise the distinction between insiders and outsiders (Cvajner and Sciortino 2010, 393; De Genova 2002; Goldring et al. 2009). Mezzadra and Neilson also speak of differential inclusion to indicate the different degrees of subordination, subjugation, discrimination, and exclusion faced by irregular migrants at the political level (Mezzadra and Neilson 2013, 159). The problem is that current strategies adopted by western states to respond to the presence of undocumented migrants in their territories (de facto toleration, expulsion, and regularisation) produce uncertainty rather than reducing it, and leave undocumented migrants in a grey area where they are neither recognised as members nor excluded as aliens. This is because the condition of irregular immigrants illustrates the limits of the main conceptions of citizenship concerning human mobility, showing that the conditions for access to citizenship “are always an artificial product of human conventions, (and) it is precisely by assuming a genealogy of artificial citizenship that paradoxical elements question not only the rules according to which the ‘original contract’ is honoured, but

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the very conditions upon which this is based” (Rigo 2011, 204). As a result, the implementation of border mechanisms creates a condition of semi-belonging, in which many irregular migrants are forced to live. De facto toleration is, in my view, the worst policy of belonging that states can adopt, even if it is probably the most widespread: first, it implies the idea, which is unacceptable in a liberal democracy, that the rule of law can be sometimes undermined, and that grey areas in the implementation and protection of rights can be tolerated. Second, it exposes migrants to serious constraints of their basic freedoms and the precariousness of their rights, contributing to blocking them in the condition of permanent outsiders, and making them vulnerable, as exposed to arbitrariness and exploitation by the constant threat of deportation (Bauböck 2011). Expulsion is much more defensible as a politics of belonging, being grounded on the right of a community to say who is entitled to stay within it and who is not, who is to be considered an insider and who is to be seen to be an outsider. However, when we try to define explicitly the grounds on which such distinctions may be drawn, we face several difficulties: we could consider, for instance, that long-term residents may acquire a moral and political claim to stay and to be considered insiders, while before such a threshold has been reached expulsion can be legitimate (Carens 2008; Carens et al. 2009). But how long should that period of residence be? And on what grounds should it be determined? Even within this strategy, the condition of irregular migrants is, at least in part and until we can answer these questions, that of included-excluded, hypothetical aliens, not fully recognised persons. In this case, too, such policies produce a condition of indeterminacy, being rooted in the opacity of border mechanisms, even when they are enacted as policies of expulsion. Similar arguments and questions should be advanced on the policies of regularisation, which are set forth by some states after an irregular period of residence: even if these policies are very positive from the migrants’ point of view, the questions they raise are nearly the same. What criteria are appropriate for deciding how long an irregular migrant has to live and work in a country before being regularised? Is it merely a matter of political opportunity, or are there reasons to be taken into account to determine the length of such a period? What is at stake, in sum, is that both expulsion and regularisation, even if concretely very different from each other (both from the point of view of the states and the migrants), are ambiguous when used to separate insiders from outsiders, given that

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their criteria are not explicit and enforced with the same intensity for all migrant categories. In sum, all these policies produce a grey area where irregular migrants are neither recognised as members (allowed to participate in the community life, and be protected by the law), nor are they excluded as aliens, undesirables, and outsiders. These policies start from the assumption that undocumented migrants work, produce, and pay taxes (including VAT or similar contributions), and thus they are, even from a legal point of view, present as individuals within the community: but they do not specify why these people cannot be fully part of it, so much so that some of them may be expelled, others regularised, or may continue to be tolerated without being recognised as full members of the community. These are therefore structural mechanisms of oppression and vulnerability, which affect groups (identified as such from the outside and without the differences between the needs of individuals being perceptible and relevant), with a self-implementing intensity. While it is true that the condition of semi-legality, as well as of semi-citizenship, does not determine per se the particular vulnerability of irregular migrants (Krause 2008), they are systemic elements that, together with the occurrence of specific and contingent factors, can produce it. Among these factors, a crucial role is played, for example, by forms of marginalisation, deprivation, and social stigma, which increasingly affect irregular migrants and contribute to reinforce stereotypes around unrealistic group identities. It is an easily detectable fact that irregular migrants often experience forms of suspicion and prejudice, such as conveying public representations of them, from time to time and depending on political interests, as criminals or victims of exploitation and modern pariahs, lawbreakers and social outcasts. They are perceived, by large sectors of the population, as people who “invade their property, strain their social services, and even place their lives in jeopardy”,1 despite consistent statistical evidence to the contrary (Duffy and Frere-Smith 2014; Guild 2009). In many places of public debate, irregular migrants are portrayed as intruders, as a threat to the security of the community, and as a danger from practically every point of view (Ignazi 2002): in terms of public order, first of all, but also in terms of economic well-being, and then concerning the cultural identity of the community, the social

1 Arizona v. United States, Scalia dissenting 132 S.Ct. 2492, 2522 [2012].

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stability, the maintenance of the welfare system, and so on (MacNevin 2006, 140). Therefore, it is not the condition of “irregularity”, per se, that determines a group vulnerability (while it does produce an individual vulnerability). “Irregular” migrants can be considered a vulnerable group because, on the one hand, the functioning of legal and political mechanisms of oppression deliberately relegates their presence to a situation of permanent ambiguity and precariousness; and on the other, insofar as they are labelled as “irregular” and “clandestine”, they are subject to phenomena of exclusion and stigma that condition their agency and their capacity to enter the public debate. Therefore, these people are forced to live under the constant threat of being excluded, deported, and exploited, without this preventing them from carrying out many other social interactions, such as participating in religious communities, raising children, working, renting houses, etc., all of which are carried out under the threat of political exclusion.

Group Vulnerability, Agency, and Resistance Practices As mentioned in Chapter 5, vulnerability is not reducible to oppression, nor can it be understood only, passively, as the consequence of power asymmetries that condemn certain groups to the condition of marginalised and subordinate groups: vulnerability is also a space of resistance to oppression, where claims and positive actions emerge. There is, in short, a positive and emancipatory value in vulnerability, in which claims concerning needs, care relationships, and social bonds are shaped, and the importance of policies that address vulnerability without labelling it as a condition of mere disadvantage is underlined. Above all, the vulnerability of groups can be interpreted highlighting its active character, and emphasising its potential rather than its defective characteristics. Concerning irregular migrants, there are many examples across the globe of such a capacity for political action and resistance to mechanisms of oppression and marginalisation: these examples demonstrate the capacity to claim rights and recognition, and concern the regularisation of the status of migrant people, the right to stay in a given country, the right to seek asylum, the right to benefit from protection policies at work, rights and policies on union representation, rights to health care, or even simply the right to obtain a driving licence. In the United States, for

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example, thousands of migrants took part in massive demonstrations in 2003 in Washington and New York from various cities to protest against the unfair treatment of undocumented migrants and to lobby Congress to pass immigration reform (Basok 2010, 97). Similar movements took place in 2006 in the urban areas of Chicago, Los Angeles, and Dallas, involving more than a million migrants in protests against the reform of immigration laws that introduced heavy penalties for irregular immigration and criminalised not only the behaviour of individual migrants but also of anyone who provided them with assistance both on entry and during their stay.2 This 2006 mobilisation is particularly interesting because it showed how, beyond their claims to rights and demands for regularisation, “irregular” migrants displayed a remarkable capacity for mass mobilisation, and to some extent a group consciousness (Baker-Cristales 2009; Johnson and Ong Hing 2006). Masses of people in semi-poverty, of working men and women, of non-white people exposed to the risk of deportation and repatriation, managed to organise mobilisations in numerous cities in the United States, and to obtain not only a concrete result—the withdrawal of the law in question—but also visibility and a hearing (Rygiel 2011, 156). The motto of the protest, “¡Aquí Estamos, y No Nos Vamos!” “¡Y Si Nos Sacan, Nos Regresamos!”, which strongly entered the political discourse and the public arena certainly served to convey individual needs, but above all allowed to shed light on the economic and legal mechanisms of oppression for millions of migrants: these protests served to produce a “short circuit” in the political discourse (De Genova 2010, 102; 2009) which, obscuring the conditions of privilege for some groups, and of oppression for others, had focused until then (in a self-referential way) exclusively on the needs of security and protection of the native population. In Europe, the best-known case is perhaps that of the so-called Sans Papier in France, which led to the organisation of strikes to claim for regularisation. In this case, too, the most significant political result was obtained not so much at a legal level, in terms of changes in current regulations, but in the recognition of the groups that had led the mobilisations as legitimate interlocutors by the public institutions (the Confédération 2 Above all, the law in question placed the securitarian approach to immigration management within the broader context of anti-terrorism legislation, with objectively discriminatory and vulnerable political and cultural effects; see Border Protection, Antiterrorism and Illegal Immigration Control Act (HR4437, December 16, 2005).

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générale du travail—CGT, the immigration ministry, and the government) (MacNevin 2006, 145). In this case too, of course, the protests originated from a specific event: the tightening of immigration legislation, which had already begun several years earlier, with the affirmation of legal resident status as a prerequisite for access to social services, and the replacement of legislation that had guaranteed the automatic renewal of residence permits for 10 years with the introduction of conditional annual permits, which made the situation of many resident immigrants uncertain, and that of others living illegally (Freedman 2004). However, in addition to the single measure, what was contested were the structural mechanisms of precariousness, that is, those processes that generate uncertainty and risk, and force people into a limbo of perpetual marginality: a contestation that began with the same formula used to self-identify as a group, and which replaced the notion of being “irregular” with that of “Sanspapier”, precisely to underline that the only level on which there is a difference with pleno jure citizens is that of “paper”, of documents and bureaucracy (MacNevin 2006, 143). Even in Italy, which has become one of the main gateways to the European Union, there have been repeated examples of this capacity for appropriation of the public arena by migrant groups. In response to the progressive tightening of national immigration legislation, the adoption of a securitarian approach, the criminalisation of irregular immigration, the police management of immigration detention centres, and the unworthy conditions in which migrants are forced to live in these centres, numerous struggles and political action have occurred over the years. And even in this case, despite the diversity of outcomes and the different attitudes of the local population (Rigo 2011), the collective action of migrants moved their claims to a political level, bringing to light the problematic nature of the mechanisms of migration management, and the systemic production of irregularity, thus giving voice and visibility to subjects otherwise excluded not only from the privileges of citizenship but also from the very possibility of entering the public scene and claiming attention. In this sense, to borrow a category that has been used several times in the course of the analysis, migrant groups succeed—precisely as groups, i.e. as capable of coordinated and collective public action—in acting as counterpublics, as dissonant voices in the public debate. Through labour strikes, hunger strikes, claims for regularisation and political rights, as well as through the occupation of churches and public spaces as a means of seeking refuge, migrants have challenged not just individual

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measures, but the whole of legal and political mechanisms of migration and border management, and dominant representations of migration in public discourse. They challenged the claim of docility and subordination of the migrant, who unlike the citizen cannot enter the public debate and must submit to decisions made by others (Inda 2011), and demonstrated their ability to speak and to be heard: and at the same time as they claimed rights, recognition, and inclusion, they exercised their right to be part of the community, their factual inclusion in the system of rights and entitlements typically reserved for citizens. A small but significant example of this process of inclusion through the exercise of citizenship is provided by the group CollectActif, operating in Belgium, and led by people in conditions of irregularity. In 2016 the group won the award for “most hospitable association towards refugees” from the Flemish NGO Vluchtelingenwerk Vlaanderen (Refugee Action). What is interesting about this prize is that it is both a recognition of the activity carried out in the specific field, and a certificate of the effective exercise of citizenship by the activists involved (Swerts and Oosterlynck 2021). The action of migrant groups demonstrates the capacity of these groups—and of the individuals belonging to them—to shape social inclusion in a logic of agency rather than status: in other words, social inclusion is interpreted as a set processes of social and political participation (Bellamy 2008; Isin and Nielsen 2008), that have been defined as “processes of citizenship” or, in a partially different sense, “acts of citizenship” (Isin 2009; Ambrosini 2016). The actions of migrants in conditions of irregularity could activate a set of changes in the institution of formal citizenship (Sassen 2005, 81), and their actions can be interpreted either as acts of exercising and claiming citizenship, or as strategies of silent and informal inclusion: “not every instance of irregular migrants’ agency (and integration) necessarily implies making a claim, or becoming visible (or known) to other citizens or (state) institutions. Instead, their selfintegration can also have the opposite aim of becoming (or remaining) invisible, thereby reflecting an assimilationist understanding of integration as ‘blending into society’ in order not to be identified as ‘foreign’ or, in this case, ‘irregular’” (Schweitzer 2017, 320). Therefore, while in a traditional model the enjoyment of political rights (even if not exercised), the entry into the military, and the (formal) possibility to benefit from welfare systems, are considered as typical manifestations of inclusion and citizenship, acts of citizenship can also take

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other directions and different forms. The exercise of sexuality and the formation of families, the reunification of families separated by migratory processes, the use and management of public places, the presence in the media, the participation in trade unions or civic activism, are all possibilities through which non-citizens demonstrate an active presence as legal persons, and claim both this presence and the rights attached to it. Additionally, acts of citizenship can be identified in access to health and welfare services, in applications for subsidies and services for work or housing, in the acquisition of linguistic and professional skills through training courses, in the public claim activity, even independently of the holding of political rights. In short, as some have correctly argued, it is a matter of acts and processes through which diversity (of birth, culture, religion) is “trivialised” (Wessendorf 2013) and made part of the daily interaction of a given community: in this sense, among the most significant “practices of citizenship” are certainly the participation in movements and committees, in awareness-raising groups (even in informal ones), and in charity organisations, through which migrants enter the public debate and shed light on their experiences and demands (Schrover and Vermuelen 2005; Lucassen and Penninx 2009; De Tona and Moreo 2012). This does not mean that status loses its importance or political relevance, but that the processes of contesting this logic of status, and of claiming it, are just as relevant as the formal and legal requirements for its recognition, and contribute to changing its scope and meaning: these acts constitute processes of citizenship because they force us to rethink citizenship in a new perspective, to look at it in a different light. As has happened many times over the last century (Harding 1987, 1991), vulnerable groups occupy the political scene, overturning the dominant cultural paradigm (according to which the political subject is by definition male, or white, or economically independent, or a citizen by birth, and so on…). As many feminist scholars have highlighted, processes of cultural production (who is entitled to define what, and how, and with what consequences) are never neutral, but are conditioned by differences in power and status, and this epistemological privilege must be challenged in order to overturn them (Haraway 1988). In a similar vein, the acts and processes of citizenship contest the fact that the definition of citizenship, as well as its scope and its conditions, are defined by those who are already citizens, by insiders, in a logic that relegates foreigners to the condition of passive objects of a definition, of those who can only undergo standards set by others. These acts and processes, in short, serve to construct a new

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idea of citizenship, shedding light on the condition of those who are not (formally) citizens, and tend to be marginalised by a dichotomous citizenforeigner opposition, placing them at the centre of the political and social scene (Squire 2011; Rigo 2008). At the same time, acts of citizenship emphasise the relational dimension of belonging. The idea of mobilisation, of civil and political activism, as well as the construction and activation of relational networks, are not only practices through which non-citizens enter the public arena: they also highlight how this entry is made collectively, by groups, by relational systems, by subjects inserted in networks of relations, which act as citizens and redefine belonging to a community in a relational perspective.

Conclusions Although migrants in conditions of administrative irregularity are people who live and experience very different situations, they can be considered an example of a vulnerable group, in which vulnerability is identitybased. This is because, on the one hand, their condition of irregularity is determined by legal, political, and economic mechanisms (or rather, by the interaction of legal, political and economic systems that respond to different logics and are not necessarily consistent with each other) that rest on a common identity constructed in the media and politically (namely, “illegal immigrants”, “irregulars”, “clandestine migrants”). On the other hand, because they are the recipients of a top-down type of identification, i.e. of an extremely simplified and reductive public representation of their condition, through which individual differences are reduced to a super-individual category (“illegal immigrant” or other similar labels). This representation by labelling, moreover, does not simply play a role in processes of identification from the outside, but can be taken on from the inside to activate (bottom-up) practices of contestation and resistance to mechanisms of oppression: in this sense, it becomes the starting point for entering the public sphere, for expressing and elaborating dissent, for developing requests for visibility and struggles for recognition, for proposing alternative narratives. The collective dimension of vulnerability, for irregular migrants, allows for a shift from the legal dimension of individual experience (the fact of holding specific documents, permits, rights, etc.) to the political dimension: it allows for the occupation of the public

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space, for visibility, for the exercise of the right to enter the public debate and to have one’s voice heard. The “caravans” of migrants from Honduras to Mexico, and then to the United States, it has been correctly noted (Martínez 2021, 127), have managed to turn a myriad of individual migration experiences into a political event, a diplomatic issue, an object of media debate, something that simply cannot be denied, hidden, or trivialised. And whatever the practical outcome, in terms of rights and opportunities (for now, unfortunately, very little), the political outcome is certain: the condition of group vulnerability is a visible and present object in the public arena, just as much as individual vulnerability was marginalised, obscured, neglected, and denied. When vulnerability becomes a collective issue, capable—also through the conscious internalisation of ascribed identities—of going beyond the sphere of individual lives, it may be the horizon in which new political subjectivities are proposed, and new forms of participation in public life experimented with.

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Index

A agency, 11, 16, 24–26 aliens, 35, 177, 180–182 asylum seekers, 31, 38, 40–42, 47–49, 127 autonomy, 4, 7, 10, 11, 14–17, 22–24, 56, 65, 71, 74, 78, 86, 94, 113, 115, 116, 124–126, 132, 133, 136, 144, 154–156, 159, 167, 169, 170

B bioethics, 1, 9, 18, 33, 50, 51, 53–56, 154, 158, 168

C care, 8, 9, 13, 20, 41, 45, 48, 49, 51, 53, 79–81, 98, 105, 111, 124, 127, 132, 136, 144, 153, 159, 160, 162, 164–166, 176, 183 concept of vulnerability, 7–9, 11

condition of irregularity, 41, 177, 178, 188 counterpublics, 24, 69, 86, 121, 185 cultural rights, 33, 35, 36, 75, 82

D dependence, 8, 10, 12–14, 17–19, 22, 42, 44, 49, 50, 55, 65, 66, 77, 78, 132, 133 disability, 13, 19, 36, 45, 54, 108, 159 people with disabilities, 13, 25, 39, 43, 65, 71, 108, 110, 126, 137 disabled persons, 34 disadvantaged marginalized groups, 36 discrimination, 3, 4, 18, 20, 23, 25, 33, 35, 36, 38, 42, 43, 46, 48, 62–64, 67, 68, 73, 79, 80, 86, 93–95, 103, 104, 106, 107, 109, 111–116, 127–129, 138, 152, 159, 180

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 F. Macioce, The Politics of Vulnerable Groups, Critical Political Theory and Radical Practice, https://doi.org/10.1007/978-3-031-07547-6

195

196

INDEX

dissent, 22, 23, 62, 134, 141, 176, 188 distribution of resources, 130, 143, 152

E ECHR, 40, 44, 45, 63, 80, 87, 108, 111 elderly, 34, 36, 38–40, 45, 46, 50, 70, 71, 73, 74, 110, 111, 126, 137, 141, 155, 160, 163, 166 enabling value of vulnerability, 134 essentialism, 25, 26, 63, 68, 71, 84 ethnicity, 40, 45, 47, 64, 71, 72, 101, 108, 159, 164 exclusion, 10, 23, 38, 43, 47, 48, 62, 65, 68, 70, 80, 86, 93, 102, 103, 122, 126, 127, 163, 177, 180, 183 existential vulnerability, 18 exploitation, 13, 18, 23, 37, 47, 50, 52, 55, 85, 105, 116, 138, 153, 156, 181, 182

F fragility, 7, 18, 19, 36, 48, 77, 124, 153, 154

G gay lesbian or transgender gay, 33, 34, 69, 110 lesbian, 33, 34, 110 transgender people, 34 group identity, 68, 72, 86, 93, 96, 101, 102, 130, 179 group rights, 83, 87, 100, 142

H hate speech, 83

I identity-based vulnerability, 68, 175 inability, 53, 85, 126 inclusion, 34, 50, 55, 70, 75, 143–145, 152, 156, 162, 178, 180, 186 informed consent, 1, 9, 51, 54, 55, 70, 106, 154, 156, 157, 161, 164–166 inherent vulnerability, 11, 14, 17, 18, 20, 41, 47, 48, 56, 66, 122, 125, 144 insecurity, 8 international human rights system, 31, 33, 39 M marginalisation, 11, 18, 20, 22, 43, 50, 63–65, 67, 68, 80, 84–86, 93, 102, 103, 110, 111, 116, 126, 127, 129, 133, 143, 175, 177, 183 migrants, 5, 20, 31, 34, 36, 37, 39, 46–48, 62–64, 71, 127, 160, 175–183, 185–189 minority(ies), 4, 19, 39, 42, 45, 47, 70, 84, 86, 93, 100–106, 108, 110, 112, 124 ethnic minorities, 1, 25, 31, 32, 34, 35, 39, 45, 52, 53, 65, 66, 70, 80, 86, 87, 94, 100–106, 155, 160 linguistic minority, 36, 82 minors, 1, 31, 35, 38, 40, 41, 45–47, 50, 51, 53, 54, 80, 113, 126, 127, 155, 156 mobilisation, 61, 97, 136, 184, 188 O oppression, 4, 10, 11, 16, 20, 38, 68–71, 73, 79, 85, 86, 93, 99,

INDEX

103, 107, 111, 112, 116, 123, 127–133, 135–139, 141, 152, 175, 176, 182, 183, 188 P particularly vulnerable groups, 31, 41 paternalism, 48, 65, 95, 126 pathogenic vulnerability, 9, 18, 20, 21, 115, 122, 136, 140 people with disabilities, 53 persons with psychiatric disorders, 41 positional vulnerability, 72 poverty, 32, 37, 39, 47, 48, 53, 153, 159, 162, 184 power asymmetry, 68, 86, 93, 100, 101, 122 power imbalances, 23 power systems, 69, 116, 121 precariat, 75, 76 precarious workers, 137, 138, 141 precariousness , 8, 9, 17, 18 precarity, 9, 17, 18 prisoners, 18, 31, 34, 40, 44, 112, 156, 159 privilege, 23, 71, 124, 125, 127, 128, 131, 135–139, 144, 145, 176, 184, 187 privilege of ignorance, 23, 127, 131 R race, 35, 40, 67, 71, 108, 109, 111, 115 recognition, 10, 15, 18, 21, 22 reductionist approach, 64, 65 refugees, 34, 38, 48, 53, 156, 159, 186

197

resistance, 4, 22, 25, 69, 103, 123, 127, 132, 134, 141, 175–177, 183, 188 resources, 10, 13, 14, 17–21 Roma Gypsies or Sinti Roma, 33, 34, 41–43, 67, 101 Sinti, 33, 101 Roma Gypsies Sinti, 34 S sexual orientation, 34, 40, 47, 49, 64, 67, 108, 109 situational vulnerability, 18, 20, 21, 47, 122, 133, 135, 140, 153, 158, 161, 165 social determinants of health, 158, 169 social marginality, 43 systemic violence, 73, 152 T transgender people, 38 V victimhood, 47, 63, 65, 94, 95, 97–99 W women, 1, 12, 13, 18, 24, 31, 32, 34, 35, 38, 39, 44–46, 48, 50, 54, 55, 62–64, 66, 67, 69–71, 79, 108, 126, 137, 138, 156, 161, 162, 184 pregnant women, 35, 38, 55, 70