Re-theorizing antisubordination

• Grant number: 23/02992-2
• Support Opportunities: Scholarships abroad - Research Internship - Doctorate
• Start date: September 05, 2023
• End date: January 17, 2024
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Dimitrios Dimoulis
• Grantee: Taís Sofia Cunha de Barros Penteado
• Supervisor: Owen Mitchell Fiss
• Host Institution: Escola de Direito de São Paulo. Fundação Getúlio Vargas (FGV). São Paulo , SP, Brazil
• Institution abroad: Yale Law School, United States
• Associated to the scholarship: 22/04851-4 - Equality as antisubordination: a re-theorization of the principle from the Brazilian constitutional jurisprudence, BP.DR

Abstract

The legal principle of antisubordination, as formulated by specialized doctrine and adopted in some cases ruled by the Brazilian Federal Supreme Court ("STF") is the postulate that norms or measures that create or perpetuate social hierarchies violate equality. In preliminary research, I realized that the focus of the postulate on the results of norms or measures is limited, insofar as it fails to capture countless other ways in which social hierarchies permeate the law. In view of this deficiency, the present project aims to re-theorize the equality principle, based on the analysis of Brazilian constitutional jurisprudence on equality. The preliminary hypothesis is that a principle truly capable of keeping alive the promise of dismantling social hierarchies must be formulated as a framework capable of offering a lens for identifying problems and a guide for their resolution, without being restricted to a postulate. The research has a double objective: first, I aim to analyze cases ruled by the STF, through the lens of on my preliminary re-theorization (anti-subordination as a framework). Then, I will confront the preliminary re-theorization, from the insights inferred from the observation of Brazilian jurisprudence, generating inductive and empirically informed knowledge. The re-theorization proposed here also considers the complications that arise when the antisubordination principle is mobilized. Subordination is not static and power relations are dynamic. As such, intersectionalities might pose challenges for the identification of problems and solutions that should be addressed. The exercise also ponders the place courts can have in promoting the structural changes necessary for the promotion of meaningful emancipation - a question that emerges when the principle becomes more overarching. This feature shows how the principle could not be properly articulated in a vacuum: discussing the interactions between law in the books and law in action is paramount. Finally, the re-theorization demands reflections about what constitutes antisubordination's normative underpinning. (AU)