Law and Difference: Considerations on constitutional law and identity

Abstract

This article focuses initially on the way of comprehending the consolidation of subjectivity, and therefore of an identity, through the philosophy that gives emphasis to recognition, to the detriment of social contract theory. Then it discusses the dichotomy between liberal and social rights and their possible influence on the shaping of cultural rights, in the bonds related to people’s own identity. It claims that cultural production should be democratized, including the host of distinct cultural manifestations, without the sole concentration of cultural signs and their values in government hands. It also proposes people’s right to an identity of their own as a criterion for assessing the social right to culture, with the understanding that the differences should be protected as long as they are required to constitute the defense of fundamental rights.

Key words: fundamental rights, identity, difference.