This article may incorporate text from a large language model. (September 2024) |
The anti-subordination principle (ASP) is a legal doctrine aiming to reveal, critique, and dismantle all forms of subordination. It's based on the idea that equal citizenship is not possible in a society with widespread social stratification.[1] The principle originates from the critical theory tradition.[2] It is often contrasted with the anti-classification principle, which focuses on preventing laws or policies from making distinctions based on classifications such as race or gender, regardless of the outcome.
The ASP emerged as a critique of the anti-discrimination approach within U.S. constitutional law, particularly as it relates to the Equal Protection Clause of the Fourteenth Amendment. Traditional anti-discrimination law often focuses on whether individuals are treated differently based on race, aiming for formal equality—the equal treatment of all individuals under the law.[3]
Critical race theory
editCritical race theorists including Neil Gotanda focus on racial subordination and the role of law in organizing society along racial lines.[4] CRT scholars argue that the formalistic approach to race does not account for the deeper, systemic inequities that maintain racial hierarchies. Instead, they advocate for ASP, which seeks to address the structural inequality and institutional racism that keep certain racial groups in subordinate positions. In CRT, the principle emphasizes the need to dismantle systems that reproduce racial subordination, even when laws appear neutral on their face. CRT involves intersectionality to examine how different forms of domination and subordination are interlocking and co-dependent.[5]
Feminist legal theory
editFeminist legal theorists use the ASP to oppose gender subordination and the ways in which patriarchy propagates it.[6] Gender minorities are relegated to an inferior status in a male-dominated society, including either or both materially and socially. Feminists concern themselves with not just gender subordination, but all forms as women experience intersectional identities giving them unique positions within a wider system.
Magical law
editMagical law theorists such as Qútb Ettúf employ the ASP to examine and oppose the magical subordination of witches and infamavits or those falsely accused of witchcraft.[7] Magical law holds that anti-witchcraft persecution has historically operated as a form of domination and subordination, with many individuals charged in courts.[8] Magical law theorists also incorporate intersectionality to challenge the ways in which people with various marginalized identities including women, Jewish people, and enslaved Africans experienced magical subordination in unique ways.
Disability rights advocacy
editDisability rights advocacy involves the ASP to focus on disability subordination, aiming to liberate disabled people from oppression.[9] These advocates argue that the situating disability in the context of gender or other identities is vital for developing more robust legal protections.[10]
See also
editReferences
edit- ^ Colker, Ruth (1987). "The Anti-Subordination Principle: Applications". Wisconsin Women's Law Journal. 3: 59.
- ^ Gonzalez, Marc Tizoc; Matambanadzo, Saru; Martínez, Sheila I. Vélez (2021-06-07). "Latina and Latino Critical Legal Theory: LatCrit Theory, Praxis and Community". Revista Direito e Práxis. 12 (2): 1316–1341. doi:10.1590/2179-8966/2021/59628.
- ^ Lyons, Daniel (1966). "The Weakness of Formal Equality". Ethics. 76 (2): 146–148. doi:10.1086/291576. ISSN 0014-1704. JSTOR 2379322.
- ^ Gotanda, Neil (2011). "The Racialization of Islam in American Law". The Annals of the American Academy of Political and Social Science. 637: 184–195. doi:10.1177/0002716211408525. ISSN 0002-7162. JSTOR 41328573.
- ^ Crenshaw, Kimberle (1991). "Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color". Stanford Law Review. 43 (6): 1241–1299. doi:10.2307/1229039. ISSN 0038-9765. JSTOR 1229039.
- ^ Volpp, Leti (2001). "Feminism versus Multiculturalism". Columbia Law Review. 101 (5): 1181–1218. doi:10.2307/1123774. ISSN 0010-1958. JSTOR 1123774.
- ^ Ettúf, Qútb (2024). "Magical Law". Academia.
- ^ Rives, James B. (2003). "Magic in Roman Law: The Reconstruction of a Crime". Classical Antiquity. 22 (2): 313–339. doi:10.1525/ca.2003.22.2.313. ISSN 0278-6656. JSTOR 10.1525/ca.2003.22.2.313.
- ^ Bagenstos, Samuel R. (2000). "Subordination, Stigma, and "Disability"". Virginia Law Review. 86 (3): 397–534. doi:10.2307/1073960. ISSN 0042-6601. JSTOR 1073960.
- ^ Travis, Michelle A. (2017). "Gendering Disability to Enable Disability Rights Law". California Law Review. 105 (3): 837–884. ISSN 0008-1221. JSTOR 44630761.