2023: First Place, Audre Rapoport Prize for Scholarship on Gender and Human Rights
Reimagining Antisubordination from the Global South: Towards a Joint Venture Theory of Legal Interpretation
by Taís Penteado
Winner, Audre Rapoport Prize for Scholarship on Gender and Human Rights (2023)
Abstract:
The present article is dedicated to showing how subordination is multifaceted and, as such, how legal decisions based on the antisubordination principle should be attentive to the diverse ways in which inequalities can permeate the law, in order to be properly addressed by it. By using the case in which the Brazilian Supreme Court criminalized LGBTQphobia as a focal point, I argue that equality considerations must guide how concepts are framed, how problems are defined, which solutions are proposed, as well as reflections about what a decision comes to mean for a determined place’s jurisprudence and political context. In my exercise, I also highlight complications that might arise when the antisubordination principle is legally mobilized. Subordination is not static and power relations are dynamic. As such, intersectionalities (in the case at hand, involving mostly gender identity, sexuality, race and class) might pose challenges for the identification of problems that should be addressed and for the choice of adequate emancipatory decisions, particularly when subordinate groups’ interests conflict. In the same vein, subordination happens through multiple overlapping practices, such as violence, deprivation, and exclusion, and addressing one does not always lead to a unitary all-encompassing antisubordinatory direction. I try to offer a provisional solution for these complications, based on the inclusion of civil society participation considerations on legal interpretation, through what I call the “Joint Venture Theory of Legal Interpretation”. The envisioned interpretation would be animated by the “demosprudential” assumption that legal meanings are created by courts, but also by people on the ground and asserts that, as such, the process of legal reasoning should give weight to the latter. The paper is part of a broader project of fully theorizing antisubordination, which includes the articulation of the antisubordination principle, concretizing its application, trying to solve its shortcomings, and establishing the political and constitutional theories that constitute its normative underpinning.
Keywords: Antisubordination, Equality, Legal Interpretation, Demosprudence, Brazil.
About the author:
Taís Penteado is a Ph.D. candidate at FGV Law School of São Paulo, Brazil. She holds an M.A. and a J.D. from the same institution, as well as an LL.M. from Yale Law School, where she is currently a Visiting Researcher. Her work explores the ways in which Constitutional Law, Fundamental Rights, and Equality Law interact with power relations, with a particular interest in understanding how subordination permeates fundamental legal categories and how law can become a better tool for emancipation. This paper was developed during her LL.M. year and constitutes one of the backbones of her Ph.D. thesis, which aims to provide a re-theorization of the antisubordination principle.