Law: Protection or Paternalism? | A conversation with Thomas Casadei

During the fourth We-frame laboratory, which was dedicated to exploring the deep connections between equality and vulnerability, we had the opportunity to speak with the event’s keynote speaker, Thomas Casadei. He is Professor of Philosophy of Law at the University of Modena and Reggio Emilia, as well as Director of the Centre for Research on Discrimination and Vulnerability (CRID).

In this interview, we asked him to define vulnerability, explain the difference between equality and fairness, and discuss the dual role of the law in both protecting people and creating conditions of risk.

We usually think of vulnerability as a weakness. But you suggest it is a shared human condition. How would our society change if we acknowledged that everyone, even the most powerful individuals, is fundamentally vulnerable?

Yes, the theme of vulnerability relates to the relationship with power and different forms of power. Since these forms of power change over time, vulnerability is also a changing condition. There are various ways to define and conceptualise vulnerability, but I believe it is important to recognise it in different contexts, situations and relationships with power.

These relationships can be based on recognition or be situations in which power does not recognise vulnerability. Depending on the context, there is the possibility of recognition, which leads to rights and policies to deal with vulnerability. In the second scenario, a lack of recognition merely maintains vulnerability as a condition of exposure to risk.

Is there a difference between treating everyone the same and treating everyone fairly according to their individual needs? What is the role of law in this?

Yes, this is a fundamental distinction. All human beings share a form of universal vulnerability, defined as ontological vulnerability, which is a possibility for everyone. Then there are more specific, contextualised forms of vulnerability. From this point of view, vulnerability also changes historically. It has characterised, and continues to characterise, women, children, the elderly, people with disabilities, those who work without rights and those who lose their jobs. In the first instance, it is a form of universal vulnerability; in the second, it is a form of plural vulnerability referring to different conditions.

The law can recognise these different configurations of vulnerability. In the first instance, there is a system of protection and guarantees of fundamental rights. In the second case, there are more specific forms of recognition relating to specific forms of protection and the guarantee of rights.

You talked about experiencing vulnerability through the senses rather than just reading about it in books or academia. How can the average person become better at sensing and understanding the needs of others in their community?

This is a very important theme: the idea of expressing one’s own needs and desires. It involves speaking out and gaining recognition in the public sphere. It is about raising issues that are marginal or outside the scope of public discussion to the attention of political and institutional discourse. In order to achieve this, we need forms of organisation that highlight needs, instances and requests. This is all possible if you have an open institutional and political system that recognises and protects the new voices, conditions and needs that emerge in society.

When the law labels groups such as the elderly or disabled as ‘vulnerable’, does this help to protect them, or does it inadvertently make them feel less capable or more vulnerable?

The recognition of vulnerability can also lead to paternalism or assistance, maintaining vulnerability as a state of disadvantage or deficiency. However, it is possible to view vulnerability differently. If vulnerability is recognised, and interventions are put in place to address the condition, people — such as those with disabilities, the elderly and women — can transition from experiencing vulnerability as a permanent state to viewing it as a challenge to overcome. This creates possibilities for access and action. Therefore, a dynamic rather than static vision of vulnerability can lead to better conditions and improvements in one’s own circumstances. This is a positive or critical vision of vulnerability.

You also mentioned starting with oneself. Why is it important for legal experts, in particular, to start with themselves when it comes to seeing the problem?

The theme of vulnerability certainly has great importance in the legal dimension. As the discussion revealed, the legal system can deal with or examine vulnerability in different ways. One way is to leave vulnerability unrecognised and outside the system. This has been the case for a long time with regard to women, the sick, and children. However, another possibility is to take vulnerability seriously and provide protection, guarantees and rights. However, the law can also generate forms of vulnerability and conditions of vulnerability, as is the case with migrants. In this case, vulnerability is not the origin, but the consequence of choices. Migrants are a paradigmatic example of this.