Weak by Law

Abstract

Groups whose social identities are marked by difference and social marginalization, such as Blacks, disabled persons, and today Muslims in Western liberal states, are nowadays portrayed by liberal thought and legal rules as heteronomous and/or incapable of embodying the liberal subject (Crenshaw 1989, Kapur 2010, Nedelsky 2012). In need of protection, these weak ‘others’ may become subjected to illiberal regulations that coerce them into being a true liberal subject (Benhabib 2004, Abu-Lughod 2013). Women within these groups are particularly targeted by regulations that aim at “protecting” them and treat them as “weak" subjects. Scholars working within an intersectional perspective have noted the tendency of courts to pit universal rights against cultural or religious practices and to oppose women’s rights and cultural rights, and the detrimental effect of this legal framing for minority women (Shachar 2001). Others have criticized paternalistic and stigmatizing uses of the law, which define women from minority groups as particularly vulnerable and in need of legal protection (Holzleithner, Strasser 2010), as well as the lack of respect of fundamental legal guarantees such as due process and equal treatment in the name of protection of the vulnerable group. Taking an original interdisciplinary approach combining law, political science and sociology, this panel aims through various case studies at examining the production of autonomous/vulnerable subjects marked by difference at the intersection of gender and other power relations, and at analyzing how legislation and policies constitute some (minority/racialized) women as vulnerable or illiberal subjects, while women in more privileged positions have better access to the status of the autonomous subject.

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