Fineman in Luxembourg: Empirical lessons in asylum seeker vulnerability from the CJEU

Abstract

This article marries empirical evidence from the CJEU's asylum practice with the main tenets of Martha Fineman's ‘vulnerability theory’. It uses observations from this union in support of a theoretical and an empirical argument. On the theoretical level, the discussion unfolds to show that the post-identity ‘contextual’ approach which Fineman fosters can supplement the identity-based ‘categorical’ approach that currently anchors various asylum-related procedures in the EU. On the empirical level, it argues that the CJEU's asylum jurisprudence can offer the blueprint for how the theoretical aspiration would play out in practice. Together, the two arguments establish that Fineman's work could help align asylum governance with the asylum seeker's ‘embodied and embedded’ reality in a time when mismatch between the two attracts growing critique. Overall, this work not only contributes to the debate on the theory of vulnerability, but it also expands the application of Fineman's theory as a method for understanding and framing existing case law of the CJEU.