The gatekeeping function of vulnerability in public law and human rights

Explorations of the relationship between vulnerability and public law and human rights have largely focused on how individuals are empowered or disempowered through being recognised as vulnerable in law. However, when vulnerability has been used as the basis for some legal entitlements, the disconnect between “vulnerability in law” and “vulnerability in practice” means that some vulnerable people cannot use the legal entitlements that are formally available. This contribution examines the implications of the use of vulnerability as the basis of legal entitlements in the sphere of public law and human rights for people who are not recognised as vulnerable in law. In doing so, this contribution proposes a tri-partite taxonomy which captures the interaction between public law and vulnerability: it disempowers those deemed vulnerable in law; it empowers those deemed vulnerable in law; and it serves a gatekeeping function excluding those who are vulnerable in practice but who are not deemed vulnerable in law. This categorises how vulnerability can influence rights and duties and requires careful reflection on how vulnerability is understood and defined in public law and human rights.